Hobbes and America: Exploring the Constitutional Foundations 9781442652989

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Hobbes and America

This path-breaking study seriously shakes the credibility of the prevalent interpretations of American government and politics. It exposes the real American constitutional morality, one embodied in a code adhered to by those in political life. Frank Coleman makes a persuasive case that the real roots of the American political system are in Hobbes, and not, as is usually thought, in Locke. He shows that a Hobbesian interpretation fits the transactional, bargaining, or conflict-management nature of American politics pointed out by all the empirical political scientists, although this viewpoint is incompatible with the leading philosophical interpretations of American constitutionalism. In so far as the American system and its rationale are Hobbesian, they are thereby incapable of resolving social conflicts and of pursuing any common good. The leading theories, particularly the reformist theories, are unable to absorb the teachings of empirical political science - and to such an extent that one can speak of a pattern of political schizophrenia prevailing in the political science profession. Coleman is no naive iconoclast: he has a thorough grasp and appreciation of the traditions of political theory from Aristotle to Oakeshott: he dissects his material meticulously, with coherence and integrity. His synthesis of empirical and philosophical studies of political life sharpens our perceptions and forces a re-evaluation of certain ideas and well-entrenched notions. Hobbes and America has serious implications for understanding both American politics and, more generally, western political experience and thought. FRANK COLEMAN has taught politics at LaSalle College, Philadelphia.

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FRANK M. COLEMAN

Hobbes and America: Exploring the constitutional foundations

UNIVERSITY OF TORONTO PRESS Toronto and Buffalo

©

University of Toronto Press 1977 All rights reserved Printed in the United States of America for University of Toronto Press, Toronto and Buffalo

Library of Congress Cataloging in Publication Data Coleman, Frank M 1937Hobbes and America. Includes index. 1. Liberalism - United States - History. 2. Political science - History - United States. 3. Hobbes, Thomas, 1588-1679 -Political Science. I. Title. JA84.U5C6 320.5'1'0973 76-46434 ISBN 0-8020-5359-9

This book has been published during the Sesquicentennial year of the University of Toronto

The illustration on the cover is taken from the frontispiece to Hobbe's Leviathan (London 1651)

To Leonora

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Contents

ACKNOWLEDGMENTS INTRODUCTION 3

ix

1

Operative realities 5 2 De-mythologizing American politics 34 3 The roots of American constitutionalism 54 4 Liberal democracy and conflict-management 5 The Lockean connection

75

100

6 American constitutional philosophy: Madison, Thoreau, Calhoun, and Sumner 121 7 The predicament 148

INDEX 157

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Acknowledgments

I am keenly aware of the extent to which this work builds upon the achievements of other scholars. Some of these have personally assisted me in developing the views expressed in the present work. Over a series of informal summer conferences, and at other times over a span of years, H. Mark Roelofs coaxed an acceptable interpretation of Hobbes from me. His friendship and criticism were of indispensable value to me in fashioning the leading ideas of this essay. Also, at an early period when professional encouragement was particularly helpful, G. Lowell Field, Glenn Tinder, and Robert Paul Wolff were pleased to regard my work as something and to spur me on. The work has further benefited from the deft editorial supervision of R.I.K. Davidson and Margaret Parker, University of Toronto Press. The reader has been spared many tiresome moments of turgid expression through their remarkable skills. The influence of C.B. Macpherson upon the major themes of this essay is evident. Beyond this, his suggestions for the improvement of the chapters on Hobbes and Locke has definitely produced a more satisfying argument. I want to thank my Mother and Father who have stood behind me over a period of several trying years. To Leonora and Sarah, my wife and daughter, who were committed to the author, no matter what his prospects or the general utility of his views, I am indebted beyond my means to express. Despite the generous assistance which I have received from many parties, I am aware that this work contains faults for which I must bear responsibility. Publication of this book has been made possible by a grant to the University of Toronto Press from the Andrew W. Mellon Foundation.

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HOBBES AND AMERICA: EXPLORING THE CONSTITUTIONAL FOUNDATIONS

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Introduction

This volume presents an interpretation of American constitutional thought and of the predicament of modern liberalism. It develops the view that American constitutionalism is the product of a revolutionary movement in political thought whose direction and nature is embodied in Hobbes's major works and that Locke and Madison must be relegated to the conservative role of disseminating and implementing the constitutional ideas of Hobbes. Hobbes was extraordinarily sensitive to the novelties of government precipitated by the rise of the commercial Protestants in seventeenth-century England and his political philosophy was allied with the revolutionary goals they sought. He developed a new philosophy of constitutionalism, conflict-management, suited to the developing genius of commercial Protestantism and a liberal-democratic people. After presenting the view that Hobbes is the true ancestor of constitutional liberal democracy, this essay demonstrates that Locke and Madison transmit Hobbesian principles into American political tradition. In the course of American history the constitutional ideas descended from Hobbes have undergone several permutations - among them secessionism, civil disobedience, social Darwinism, and pluralism - while remaining the same in terms of controlling principles. Hobbes is also the parent source of the modern American concept of the political process. Current analysts of the political scene are indebted to Hobbes for the perspective, first, that the political process involves negotiation between independently situated political actors and, second, that the chief purpose of political institutions is the management of social conflict. To put all this another way, and in its simplest form, the constituent principles of political association in Hobbes's philosophy and in American life are the same. Hobbes develops a philosophy of constitutionalism which is in keeping with the actual daily conduct of American politics.

4 Introduction A corollary to the view that ruling authority in America is constituted on the principles of the Hobbesian philosophy is the view that the American sovereign is unable to identify matters of major social importance and to apply available resources to their solution. In Hobbes's philosophy the only possible source of public authority is the private need of independently situated political actors, each of whom is vested with a prior, if not necessarily superior, right to act according to selfdefined standards of conscience and interest. Public order is, by nature, artificial. It is of no value, even to the sovereign himself, except as the requirements of sustaining public order intersect with his private interest. Since there is no non-private (common) good which transcends the private need of the members of society, the sovereign is deprived of a social philosophy able to resolve the conditions which give rise to conflict in society. These conditions are irremediable because they lie in the private and utterly discrete needs of man himself. The sombre conclusion toward which the essay moves corresponds to the phenomenal world of American politics. ForHobbes and his successors in the liberal-democratic tradition, the life of man in civil society, as in the state of nature, will be solitary, poor, nasty, and brutish, although somewhat less hazardous and short.

1 Operative realities

The problem on which we initially focus is that we are presented with two curiously unsatisfactory choices by the current literature of American politics. One strand of literature provides a philosophy of constitutionalism which erroneously interprets the national political experience; the other falls into apathetic silence about the meaning of that experience and so fails to divulge its character. Reformist interpretations of American constitutionalism make up the first of these strands. These interpretations, deriving from the natural law tradition of Western civilization or from the example of British parliamentary experience, grossly misinterpret the national political experience. First a myth of constitutional purpose is invented and then the particulars of the national political experience are bent to fit the pleasing contours of the story. Arthur Holcombe, for example, is a representative spokesman for the view that the classical concept of a rule of law was successively conveyed from Aquinas to Locke to the Founding Fathers and thus constitutes the basis for political association in America. A contrasting view of America's political belief, though equally erroneous and conventional, is offered by James MacGregor Burns. In essence, Burns affirms that the American people have not vested sovereignty in a pattern of law, the law of the constitution, but have retained the right to alter the constitution to conform to the ruling ideas of contemporary American experience. The contrast to which this essay calls attention is between reform interpretations of American constitutionalism and the operative realities of American politics. Implicit in empirical accounts of these realities is a quite different constitutional philosophy, but, as indicated above, one whose philosophical and moral roots are never exposed to view. While

6 Hobbes and America empirical studies are of great assistance in specifying the working arrangements of American political institutions and of pointing to, if not fully developing, significant information about the American constitutional philosophy, nevertheless, as a general rule, those who produce this class of evidence do not take the critical step of exploring the modes of consciousness which underlie the forms of political behavior being described. The excision of the modes of consciousness which sustain the operative realities of American politics produces an impoverished understanding of the factual experience being reported. Generally speaking, empiricists are inattentive to the theories which constitute the world of factual experience and, thereby, are cut off from significant portions of reality. A secondary benefit of this extended essay in American constitutionalism is to show that philosophical knowledge can produce a better empiricism. For information concerning the operative realities of American politics, I turn chiefly to the accounts provided by the pluralist school. This position states - contrasting squarely with the views of the reformers that the purpose of American politics, from the origins of the republic to the present day, is the management of conflict. This purpose is operationalized in a political process involving extensive bargaining and negotiation between independently situated political actors. Public order is created and sustained so long as it is able to accommodate the diverse needs of independently situated political actors bargaining for shortterm gains through the political process.1 The special merit of American political institutions is that they provide an efficient means of managing social conflict, a contribution not to be despised if one values governmental stability. The above model of political behavior provides valuable clues to the identity of the American constitutional philosophy. But these clues cannot be followed up and exploited without an understanding of what a constitutional philosophy is and does. By a constitutional philosophy, we mean something of more commanding importance than the policy preferences of candidates and political parties, and substantially richer in content than the written constitution. A constitutional philosophy is an imperial political ideology shaping the consciousness of a whole people through their national inheritance. The philosophy embodies the 1 For one of the classic expressions of this view of American politics see Robert Dahl Pluralist Democracy in the United States (Chicago, Rand McNally & Co. 1967).

7 Operative realities tradition of ideas which create the institutions of a national society and, so long as that philosophy continues to animate the minds of successive generations, sustains them. The constitution of a nation-state is often identified with its written memorandum of association. But the true manner in which a national society is constituted is through the historical enthusiasm of its people for a particular tradition of ideas.2 It is consistent with, and to some extent implied by, this definition that the idiom of expression of a constitutional philosophy will change over time, while the basic philosophy remains the same in terms of its controlling ideas. For example, in the closing chapters I consider nullification, social Darwinism, and civil disobedience as variants of a single, liberal-democratic constitutional philosophy descended from Hobbes. Political tradition is the term I apply to the working out in history of an inherited constitutional form. A careful consideration of sources is necessary if we are to determine the identity of a constitutional philosophy. Often the sources employed in this identity search tend to support the view that the constitution is an independently meditated ideology. In keeping with this outlook, public addresses, the decisions of the courts, and the works of selected theorists are consulted as the primary sources from which the constitutional philosophy is to be extrapolated. While this volume is itself indebted to these sources, especially the writings of political theorists, their general shortcoming is that they foster a narrow view of the form in which a constitutional philosophy exists in a national society. An exposition based solely upon these sources fosters the understanding that the constitutional philosophy exists as an abstraction, unrelated to the actual political experience of the society. To correct this impression, it must be stressed that a primary source of information of the constitutional philosophy of a national society is the uniquely devised working arrangements, viz. the operative realities of politics, through which the national society is enabled to act. A constitutional philosophy, as I said above, is an imperial political ideology working and controlling all the time. It establishes the goals which will be pursued in the national political context. To this I now wish to emphasize that these goals are dependent for their operation, and indeed for their existence, on an intentionally created political system. Political 2 H. Mark Roelofs The Language of Modern Politics: An Introduction to the Study of Government (Homewood, 111., Dorsey Press 1967) ch. 2

8 Hobbes and America goals are immanent, if they exist at all, in how men behave actually, in the ways in which the political process empirically goes on.3 Let us assume that the constitutional philosophy of America is an unknown. It is said by one school of reform politics to be x and by another school of reform politics to be Y. The testimony of both of these schools of reform is challenged by my interpretation, which I shall call z. Great weight is placed in this chapter on the description of the working arrangements of American politics provided by the empiricists, which I claim is a truncated version of z even though the empiricists remain ignorant of the fact. Nevertheless, the constituent principles of American political institutions, whether x, Y, or z, must be understood to be there, working and controlling all the time, and determining the actual daily content of American politics. So far I have developed the view that we cannot rely on either the pluralist or the reformist schools for our understanding of the American philosophy of constitutionalism. After analyzing the pluralist account of the empirical working of American political institutions, I contrast it in the following chapter with reform theories of American constitutionalism. If the reform theories are not consistent with the characteristics of political behavior, as specified by the pluralists, then we shall be required in the succeeding chapters to explore the American intellectual inheritance in depth. The possibility needs to be entertained, even at this early phase of the argument, that neither the reform nor the pluralist schools can supply a philosophy of constitutionalism which fully illuminates the purposes embedded in the working arrangements of American politics and the unique character of the American political experience. To put this speculation provocatively, the facts of American political experience may be a great deal richer than the theories employed in identifying them.4 Before moving to a consideration of the working arrangements of 3 Supporting this view Peter Winch says, 'The ends sought and the means employed in human life, so far from generating forms of social activity, depend for their very being on those forms' (Peter Winch The Idea of a Social Science [London, Routledge & Kegan Paul 1971] 55). For an analogous view of the relation between ideas and social activity see Michael Oakeshott Rationalism in Politics (New York, Basic Books 1962) 123. 4 For a supporting analysis of the parochial and self-stultifying nature of the main body of literature of American political science see the article by Sheldon Wolin 'Political Theory as a Vocation' American Political Science Review 63 (December 1969): 1062-82.

9 Operative realities American politics, it is worthwhile to explore further the limitations of the empirical approach on which my argument partly relies. According to the division of labor set out by the empiricists, of which the pluralists are a subsidiary group, the task of 'political theorists' is to discuss values and to make 'ought' statements, after the fashion of poets and soothsayers, about which of them we should aim to achieve. The questions of how men achieve goals in politics and how they might improve the efficiency of their performances are to be left to the more technically minded, analytical members of the profession. As one of the spokesmen for the pluralist-empiricist position states, 'Everything in this book concerns what is, not what ought to be. There are no articles urging citizens to vote more intelligently or Presidents to dedicate themselves to history rather than to politics. These selections describe; they do not cheer or deplore.'5 If we ask why the pluralist-empirical school excises the modes of consciousness which underlie political institutions and sustain their operation, we arrive at interesting possibilities. It may be that a theoretical comprehension of the principles and values embedded in the working arrangements of American politics would considerably diminish the pleasure the empiricists take in describing them. The empiricist description of the operative realities of politics almost invariably proceeds from the assumption that the political behavior described coincides with the lineaments of pure nature.6 If this were not the case, we should not be provided by the empiricists with the opportunity of learning about our error. Reification of the national political experience by the pluralist school operates to remove inconvenient views to the periphery of consciousness, if not to put them beyond the reach of analysis. As with the reformers, there may be hidden rewards in approaching the study of American politics with blinders on. The operative realities of American politics are normally considered to derive from Federalist theory. I shall later attempt to support the view that the true source of these working arrangements is Hobbesian constitutional philosophy and that an adequate conception of these 5 Raymond Wolfinger (ed.) Readings in Political Behavior (Englewood Cliffs, NJ, Prentice-Hall 1966)7-8 6 The hazards of the empirical approach are underlined by David Easton: 'To confine oneself exclusively to the description and analysis of facts is to hamper the understanding of these same facts in the broadest context. As a result empirical political science must lend its support to the maintenance of the very factual conditions it explores' (David Easton The New Revolution in Political Science' American Political Science Review 63 [December 1969]: 1052).

10 Hobbes and America arrangements depends on an understanding of the constitutional tradition descended from Hobbes. For the moment, however, I wish to analyze the version of these arrangements set forward in the Federalist papers and the transmuted account of the same arrangements set forward by the pluralists. Between them a remarkable degree of uniformity is found about the elements said to compose the operative realities of American politics. The legacy of the Federalist theory of politics in terms of these working arrangements is ruthless individualism, a merely policing sovereign, transactional relations, and conflict-management. Credit is commonly given to Madison for having stressed the need for political institutions designed to manage social conflict and for having been first to perceive that the political process in America involved, essentially, bargaining and negotiation between independently situated political actors. Underlying and shaping Madison's theory of politics is the vision of a pre-political state distinguished by severe interpersonal conflict. Although Madison speaks in his famous essay of the regulation of 'factions' as the 'principal task of modern legislation,' it becomes clear, on examination, that factions are created and sustained by the intersection of interests of independently situated political actors.7 These are political actors constituted in terms of temperament, biography, intelligence, and the history of personal possessions to identify the good for themselves in radically different ways and ruthlessly to pursue it. Madison states that differentials in the faculties of men lead to differences in the amount and kind of property they possess. Differentials in amount divide society into creditors and debtors, the relatively rich and the relatively poor. Differentials in the kind of property men possess produce factional conflicts between a landed interest, a mercantile interest, a moneyed interest, and a manufacturing interest. The first object of government is to protect 'the diversity in the faculties of men' out of which factional conflict arises.8 At the bottom of Madison's account of factional conflict is a theory of conflict between discrete and hostile, acquisitive individuals. The essence of Madison's solution to the severe interpersonal conflict which creates and provides the raison d'être for civil authority is a design of political institutions which encourages individuals and groups to 7 The Federalist intro. by Edward Mead Earle (New York, Random House, Modern Library, n.d.) 10: 56 8 Ibid. 55

11 Operative realitives negotiate their differences rather than fight them out. Madison develops his theory of institutions on the presumption that the parties to the social conflict are disarmed and that the state has a monopoly of the means of legitimate force. But propensities toward violence on the part of ruthless individualists persist into the creation of civil society and justify efforts to politicize the bellum omnium ad omnes. The widespread distribution of power, established through separation of powers and federalism, has the effect of requiring transfers of power to be negotiated by all influential parties. None of the parties to the social conflict could overawe the others, since the political system required the concurrence of each to be set in motion. Political actors faced each other in the political arena on terms only slightly removed from the state of nature. Each guarded the tendency of the other to employ the power of the state, ruthlessly, to serve his individual interest. The system of arrangements employed 'ambition ... to counteract ambition.' 9 It established, in the absence of any norm of public rectitude, 'the private interest of every individual' as 'a sentinel over the public rights.' 1 Much of the substance of these remarks is implied in Madison's corrosive parable on government. 'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.' 2 Hamilton's theory of the executive power points to a different means of coping with the problems of social conflict. He is apparently far less confident than Madison that by incorporating the demands of individuals and groups into the interior processes of making and enforcing the law, a structural solution to the conflicting rights of sovereign and subject will be reached. The diffusion of interest groups in an extensive republic, a favorite solution of Madison's, will not indefinitely delay the day in which individuals and groups will compete in a limited political arena for the goods and services of government. Negotiation between sovereign and subject may postpone but will not avoid unpopular acts. In the face of these considerations, a supreme policing authority, able to keep the parts of society in awe, is essential. Hamilton emphasizes 9 Ibid. 51: 337 1 Ibid. 2 Ibid.

12 Hobbes and America that a vigorous executive will, at the least, maintain the external features of sovereignty through 'the protection of the community from foreign attack' and through 'the protection of property... against the enterprises and assaults of ambition, of faction and of anarchy.'3 A clear advantage of the federal government over the Confederation is that 'the general government could command more extensive resources from the suppression of disturbances.' 4 These elements of the Federalist theory of politics, excepting the merely policing sovereign (about which I shall say more later), are incorporated into the pluralist interpretation of the political process. Superficial differences in the model of political behavior provided by the pluraliste may be conceded. But such changes as one observes pertain to form and not to substance. Although the ruthless individualism of Madison's position is apparently elided by the 'group' approach, one learns that the goals and conduct of politics remain highly privatized, so much so that the pluralist analysis retains its conformity with Madisonian perspectives. We are told, for example, that each individual in the political process, whether cabinet officials, administrative staff, committee chairmen, party whips, mayors, or the chief executive, is isolated by unique constellations of interests which variably affect his 'frame of reference,' his tenure in office, and the pursuit of his immediate aims.5 Political leadership consists in finding the opportunities for leadership in the needs of a particular interest group (or groups), becoming its authorized spokesman, and then proceeding to exploit needs elsewhere in the political system, through transactional relations, in order to service a diverse clientele. Neustadt's portrait of presidential leadership provides a striking illustration of the goal-oriented, calculating individual of Madisonian politics at work. Neustadt stresses that the goals of politics, including and, perhaps especially, presidential politics, are highly privatized: 'When we inaugurate a President of the United States we give a man the powers of our highest political office. From the moment he is sworn the man confronts a personal problem: how to make those powers work for him.'6 It is assumed that each individual in the political system seeks to maximize opportunities for his clientele and that he has a price in terms of some object, material or ideal. Therefore, a cardinal rule of administra3 4 5 6

Ibid. 70: 454 Ibid. 16: 100 David Truman The Governmental Process (New York, Alfred A. Knopf 1951 ) ch. 13 Richard E. Neustadt Presidential Power (New York, John Wiley & Sons 1960) preface

13 Operative realities tion is to keep the purchase price of support low and to make opposition costly by depriving one's lieutenants of the opportunity to build independent reserves of influence. Franklin D. Roosevelt's techniques of sowing confusion and mistrust in government are recommended for imitation by others. Truman and Eisenhower provide the object lesson that personal trust results in a loss of influence. The rule to be gathered from these examples is that the president should have few dependencies. Thus, he will have a firm hold on his own base of political influence and be able to exploit the weakness of others. If he can promote the weakness of others, so much the better.7 In relations with members of Congress, the president will also negotiate on a footing of relative equality with those with whom he shares power. In these negotiations, the president should, as always, deal 'in the coin of self-interest.'8 If one compares the pluralist school in Europe and in America, it cannot fail to come to mind that the American school is remarkably different. First, the American school has no conception of a group identity separable from and superior to its constituent members. American pluralists, taking cover in the phrase 'inter-action,' reveal that social groups are created and sustained through the temporary intersection of interests of independently situated political actors. As a consequence, commentators on American society - for example De Toqueville, Riesman, and Slater - have tended to emphasize the fragility of American voluntary associations and the extraordinary lengths to which Americans go to avoid each other.9 In these works the absence of social life is strongly 7 Ibid. 150. Advice of this sort has made comparison with Machiavelli's 'Prince' irresistible. William Bluhm has found points of comparison between Neustadt's portrait of political leadership and the Florentine model. I believe this comparison is inaccurate because the Prince is a nationalist and a patriot, seeking to unify the Italian city-states against dismemberment by foreign invasion. Patriotism is a principle of action of which the pluraliste deprive their leaders. David Truman states ' In developing a group interpretation of politics we do not need to account for a totally inclusive interest, because one does not exist.' See William T. Bluhm Theories of the Political System (Englewood Cliffs, NJ, Prentice-Hall 1965) 24659, Truman Governmental Process 51, Niccolo Machiavelli The Prince and Discourses (New York, Random House, Modern Library 1950) 94-8. 8 Neustadt Presidential Power 46. So intensive were the pressures which Johnson exerted in face-to-face encounters that these sessions were popularly known as 'The Treatment.' See Nelson Polsby Congress and the Presidency (Englewood Cliffs, NJ, Prentice-Hall 1965) 44. 9 Alexis de Toqueville Democracy in America ed. by Phillips Bradley (New York, Random House, Vintage Books 1954) 2: 336, David Riesman The Lonely Crowd (New Haven, Yale University Press 1964), Philip Slater The Pursuit of Loneliness (Boston, Beacon Press 1970)

14 Hobbes and America intimated by a frequently expressed hunger for binding relationships. A second highly noticeable feature is that the limited authority exercised by the American 'group' over its members, in matters such as registration, dues, and indoctrination, distinguishes it from its European counterpart and deprives it of the authentic elements of group life. Darryl Raskin makes this striking contrast: 'Unlike the European, the American does not view the group as a repository of certain original and inherent rights. Instead, the American group is thought of largely in utilitarian terms as an aggregate functioning to defend what, in fact, is not really its own: the prior and independently existing interests of its members. In this sense the American group is not a community. Its capacity to complete the lives of its members is denied. Accordingly, the group appears in American society shorn of the corporative ethos of its European setting.'1 Finally, the European school of pluralism proposes that groups absorb many of the functions administered by the state, bringing about a reduction in the role of the state. American pluralists tend to emphasize the crucial role played by the state in settling conflicts among competing interests in society. In contrast, the state is seen as indispensable to the survival of group interests.2 If it is established that the 'group' approach is not substantially different from Madisonian theory, of what significance is the pluralist position that the need for a coercive sovereign is diminished by the polyarchal composition of social forces? It is regularly asserted by the pluralist school that it is in fact the relationships of social groups which produce the conflict and balance desired by Madison rather than the institutional design upon which he had placed his stress. To buttress this position the pluralists state that the historical evolution of American society has produced an increasingly even distribution of status, skill, and material goods. The inference to be drawn is that the goals of Madisonian democ1 Darryl Baskin American Pluralist Democracy (New York, Van Nostrand Reinhold Co.1971)102 2 A representative sample of European pluralist writing is Jaques Maritain Man and the State (Chicago, Chicago University Press, Phoenix Books 1963), Harold LzskiAn Introduction to Politics (New York, Barnes & Noble 1963), R.H. Tawney The Acquisitive Society (New York, Harcourt Brace 1948), Robert Owen A New View of Society (London, Everyman's Library 1927). Representative selections of American pluralism include Pendleton Herring Group Representation Before Congress (Baltimore, Johns Hopkins University Press 1929), A.E. Bentley The Process of Government (Chicago, University of Chicago Press 1908), Dahl Pluralist Democracy, and Truman Governmental Process.

15 Operative realities racy, a rough measure of distributive justice flowing from the selfinterested activity of individuals and groups, will be more fully realized in our own era than in Madison's.3 Interest groups will compete for power on the basis of relative parity; office-holders will have to bargain widely in pre-election campaigns; legislative decision-making will be influenced by a diverse composition of social forces. The distribution of political resources will prevent any one group from assembling sufficient power to get all of what it wants, but it will enable each group to get enough of what it wants to form a vested interest in the constitutional system. The first thing to notice about the pluralist position is that there is no disagreement with Madison about the goals and modus operandi of conflict-management. But there is disagreement about the area of application. Whereas Madison relied upon institutional conflict and balance, the pluralist analysis centers attention on the composition of social forces. Second, if the evidence does not support the contention that a relative parity of political resources exists in society, then Hamilton's argument for a coercive sovereign acquires cogent force once again. Michael Parenti's study of the political process in Newark, New Jersey, as an example, employs the same paradigm of political behavior as the pluralists, but reaches markedly different conclusions about the distribution of political resources and the role of coercion in maintaining the political system.4 A study by Ted Gurr shows that there is a remarkably positive correlation between turmoil in American society and the size of coercive forces. Among the nations of the Western community, only Israel exceeds the United States in this correlation.5 It is a commonplace that recent candidates for mayoral and presidential office have stressed their qualifications in the area of police work. Mayor Rizzo's vision of his office is restricted to ceremonial and police functions. One candidate for presidential office, laying it down that it is 'the first civil right of 3 Robert Dahl Preface to Democratic Theory (Chicago, Rand McNally & Co. 1964) 137: 'A central guiding thread of American constitutional development has been the evolution of a political system in which all the active and legitimate groups in the population can make themselves heard at some crucial stage in the process of decision.' 4 Michael Parenti 'Power and Pluralism: A View from the Bottom' in Marvin Surkin and Alan Wolfe (eds.) An End to Political Science (New York, Basic Books 1970) 111-43 5 See Hugh Davis Graham and Ted Robert Gurr Violence in America: Historical and Comparative Perspectives (New Votive?™ York Times, Bantam Books 1970)613.

16 Hobbes and America every American to be free from domestic violence/ 6 strongly implied that policing is the primary function of the presidential office-holder. Our main contention that there is a standard teaching about the working arrangements of American politics and that the elements of these arrangements include ruthless individualism, a merely policing sovereign, transactional relations, and conflict-management appears to be intact. It remains to substantiate the proposition that the facts of American political experience are a great deal richer than the theories presently employed in identifying them. At an early point it was suggested that the inattention of the empiricists to the theories which constitute the world of factual experience hampers their understanding of the very world which they claim to fully describe. The world of American politics is held up for view as though it were a completely factual and comprehensive description of pure nature. But the uncritical attitude of the empiricists toward the contents of their mental consciousness causes them to neglect characteristics of the real world. Propensities toward violence, unattended social problems, and a tendency toward petty corruption all flow from the working arrangements of American politics set forward by the pluralists. Yet studies of these phenomena are exceedingly rare. The discussion which follows attempts to make good on the claim that a knowledge of constitutional philosophy can produce significant insight into the actual daily experience of American politics, that it can, in short, produce a better empirical science. I am far from arguing that the American political system is the only one which exhibits the features of corruption, violence, and social neglect, but I rather suggest that these features are manifested in characteristic and unvarying ways related to the American constitutional philosophy. A characteristic feature of American politics produced by the operative realities just examined is that public authority is unable to identify matters of major social importance such as criminal recidivism, pollution, conurbation, and structural unemployment, to name a few, and to apply available resources and existing knowledge to their solution. The charge made by Robert Paul Wolff, which is easy to substantiate, is that 6 'Transcript of Nixon's Acceptance Speech on His Renomination 'New York Times 25 August 1972. Candidates for the Democratic party nomination for mayor of New York City in the most recent election primary all placed the 'law and order' issue foremost and stressed their ability to deal with it. See The Issue is Law and Order' New York Times 3 June 1973, sect. 4, 1.

17 Operative realities there are many matters of collective importance which are not the object of decision' of public authority, even though the necessary financial resources and practical knowledge to produce a more favorable state of affairs is at hand.7 An object of decision is any event or state of affairs which, having sufficient knowledge and existing resources, we may choose to bring about. For example, given the financial arrangements of American society, the purchase of a new car has been put well within the range of decision of most Americans, while the draught of a breath of clean air may not be. The social failures of American political institutions are not like an oversight, corrected after a second look, but are a permanent blindness fixed in the nature of the institutions and the social philosophy used to design them. Madison's basic premise is that self-interest rather than social justice is the object of decision of those seeking political power. This conception of man as the pursuer of his own interest has turned out to be self-fulfilling because the institutions designed upon this principle tend to produce the behavior that is predicted. There is a certain wry humor in the discovery that the hypothesis upon which American political institutions are constructed creates the facts that confirm itself.8 To illustrate this thesis, conurbation is an example of a social problem which is not an object of decision of the sovereign in America. Conurbation is a tidal population movement initiated by the influx of lowincome minority groups into the central city, and countered by the backflow of affluent whites and second-generation immigrant groups to dormitory neighborhoods and the suburbs.9 The final tendency of conurbation in virtually every major American city is a decline into a sprawling mass with a great blighted core. Political actors have made the reduction of the multiple inequalities between those who live at the periphery and those who live at the center an object of decision because this assuages the liberal conscience and assures the present arrangements. Not an object of decision is the salvage of some ideal of urban civiliza7 Robert Paul Wolff The Poverty of Liberalism (Boston, Beacon Press 1968) 86. Supporting Wolff's contention that matters of major social importance are not the objects of decision of ruling authority is the study by Peter Bachrach and Morton Baratz, who develop the view that the existing 'mobilization of bias' in American communities screens out issues of important social consequence. See Bachrach and Baratz Power and Poverty (New York, Oxford University Press 1971). 8 John Schaar 'Some Ways of Thinking About Equality' Journal of Politics 26 (November 1964) 9 Paul and Percival Goodman Communitas (New York, Vintage Books 1960) 49-50

18 Hobbes and America tion out of the onrushing slide into 'slurbs,' 'strip cities,' and depressed areas, resembling not a little 'the state of nature.'1 Most proposals for the reform of the urban condition appear to be rooted in the structure of sentiment rather than in an idea of social action. We are wearisomely advised to 'Give a Damn!'Despite rhetorically expressed concerns, it seems manifest that no candidate for public office is willing to grasp the problem in terms of an idea which would yield a measurable social benefit. A candidate who proposed to reverse the trend of urban decline would have to challenge the most cherished norms of American life. At the minimum, such a candidate would have to develop a land-use policy having as its object the creation of identifiable urban units with integrated places of residence, work, and play. These communities would have to be carved out of existing 'slurbs' and 'strip cities.'2 Second, the candidate would have to withdraw the charter of rights which states that every American has the right to own and operate an automobile, to own a free-standing home on a half-acre of land, and to be provided an expressway to his place of work. Instant social disintegration has everywhere been the result where the sovereign has merely sought to implement private choices in each of these areas.3 Third, a deliberate policy of creating urban spaces (squares, parks, shopping malls, skating rinks, cultural centers) might be undertaken to offset the steady infestation of the social domain by private spaces (backyard swimming pools, two-car garages, drive-ins, and billboards). No serious candidate for an important political office would wish to be tainted with this kind of social radicalism. The conclusion seems warranted, therefore, that conurbation is never to be an object of public decision and that our collective destiny, with the exception of the rare few who make it to exurbia, is to live in destitute and demoralized communities. To this conclusion it may be replied that urban renewal has made social radicalism of the sort proposed above unnecessary. The claim is made that urban renewal has brought 'progress' to the metropolitan 1 Such a comparison is not mere literary fancy. See Martin Tolchin 'South Bronx: A Jungle Stalked by Fear, Seized by Rage' New York Times 15 January 1973, 1. 2 Robert Weaver Dilemmas of Urban America (New York, Atheneum Publishers 1969) 3 Los Angeles represents the ideal possibilities of this social tendency. See the description by Ronald Segal in The Americans (New York, Viking Press 1968) 65-6. President Nixon's land-use bill, which had been pending in Congress for two years, has been killed, reportedly with the president's consent. The bill was considered a modest step toward orderly land development. See 'The President is Trying to Hold Anyone on His Right' New York Times 24 March 1974, sect. 4,1.

19 Operative realities areas, defined in terms of the stimulation of private investment, the restoration of civic pride, reduction in the amount of substandard housing, an increase in municipal taxes, and the return of the middle class to the central-city core. After these successes, not social radicalism but 'benign neglect' is appropriate. In fact, urban renewal has been an expensive game of musical chairs in which the various tax units of the metropolitan area have been encouraged to exchange their poor for the rich of another community.4 Under the urban renewal program a city may acquire a slum under eminent domain, clear it of buildings, and sell it to a developer. To the developer, renewal is attractive because it is virtually impossible to build on expensive central land except for the rich and because reform and profit are allied. To the city development is attractive because slums are expensive in terms of police and fire protection, welfare payments, and schools, and there is the prospect of increased tax revenues. In the shuffling of properties and people it remains unnoticed that the conditions which create urban sprawl and poverty remain neglected and unremoved. Martin Anderson has shown that urban renewal has improved housing conditions for those who lived best and made it worse for those whose housing conditions were inferior.5 Structural unemployment - the unemployment created by the failure of the labor market to keep pace with advancing levels of expertise in the professions and vocations - is another problem which is not an object of decision of the sovereign in America.6 Until recently, one might imagine that only the black and Puerto Rican minority groups were adversely affected by the sovereign's neglect of this condition. However, dim employment prospects now face the graduates of every liberal arts college, and the shortage of professionals and skilled labor in selected areas has driven up prices for essential services. It is not overstating the case to say that the alleviation of structural unemployment among blacks in urban ghettos through a recognition of their right to obtain a professional or vocational education commensurate with their abilities might avert a second civil war in the nation's cities. On one occasion this impending conflict centered precisely on the shortage of medical 4 William Alonso 'Cities, Planners, and Urban Renewal' in James Q.Wilson (ed.) Urban Renewal: The Record and the Controversy (Cambridge, Mass., MIT Press 1968)447 5 Martin Anderson 'The Federal Bulldozer' in ibid.495 6 Gunnar Myrdal Challenge to Affluence (New York, Random House 1962) 27

20 Hobbes and America services in the black and Puerto Rican community.7 A Labor Department study of unemployment in the poverty areas of the hundred biggest cities shows a 44.9 per cent unemployment level among black teenagers as contrasted with an 18.1 per cent rate for white teenagers in the same districts.8 Alleviation of structural unemployment in the medical profession in the black and Puerto Rican communities mentioned above would benefit the unemployed, who would have job dignity and social status; it would benefit the community, which is deprived of necessary services or unable to afford services because of the shortage of doctors; finally, it would benefit the doctors who are prone to disease and coronary attack because of fatigue and overwork. Still a fourth group who would benefit from the alleviation of structural unemployment in these communities is the nationals of South Korea, India, and the Philippines on whom the United States principally relies, particularly in the area of public health care delivery systems, to make up for the shortage of a domestic supply. It is estimated that the United States presently absorbs one-fourth of the trained and available doctors from the Philippines and one-fifth of the qualified doctors from South Korea.9 American reliance on foreign doctors to provide public health care is questionable to the point of immorality. All of the above are excellent and sufficient reasons to reduce structural unemployment in medicine and elsewhere, although they remain unappreciated by the prevailing social philosophy. Other problems which are not objects of decision of the sovereign in America are the interrelated ones of energy management and pollution reduction. The Nixon administration committed the nation, at least in rhetoric, to extensive pollution controls and announced that we would have a self-sufficient energy supply by 1980. Much was made of additional expenditures for the Environmental Protection Agency.1 But the rhetoric of social reform, as with the problems of unemployment and urban sprawl, is contradicted by the policies which the government actually pursues. If pollution reduction and energy conservation were, in fact, an object of decision of public authority, a different policy would have emerged from the fresh opportunities created by the energy crisis. Given that transportation accounts for 25 per cent of all energy con7 Reference is made to the seizure of Lincoln Hospital by the 'Young Lords.' See New York Times 6 September 1970, sect. E. 2. 8 New York Times 6 June 1971, sect. E, 2 9 See 'The Not-Quite Doctors' The National Observer 2 December 1972. 1 New York Times 30 January 1973, 19-21

21 Operative realities sumed in the United States2 and that automobile exhaust contributes 95 per cent of the particulate matter in urban areas,3 a logical response to the related problems of pollution and energy is to provide heavy public subsidies to mass transit systems. Far from taking such a step, the Nixon administration and its successor have removed existing levels of pollution control in an effort to augment energy supply. The administrations committed to pollution control now brush aside every problem - radioactive wastes from nuclear plants, contamination of the ocean from off-shore drilling, smog emissions from coal burning power plants, particulate matter from automobile exhausts - in the name of increasing energy supplies.4 Far from discouraging use of the private automobile, the Ford administration provides a system of tax rebates, timed to coincide with and to augment rebates from the automobile industry, as a means of reducing the inventories on car lots. The political system in America is marvellously well designed to enable actors to evade responsibility for events such as energy waste and widespread polluton, even when these events are the product of decisions they have made. By pointing to a separate institution with whom one shares power, or by insisting on the largely fictitious distinction between the public and private sector, it is possible, and likely, that one can evade responsibility for action (or inaction) of any imaginable extent and variety For example, it has long been the genius of American industry to produce private affluence and public squalor, to promote a fetish for personal hygiene and general filth, all at the same time.5 Yet there is an absence of public standards and institutions, or even a vocabulary, to hold to account the parties who are responsible. If a president of the United States, or of General Motors, in the name of impeachment politics, or profits, or higher GNP, wants to reduce the standards applying to coal-burning stacks and to automobile exhausts, there are few who will question his judgment. Advertising has rushed into the void occupied by federal policy toward energy and pollution. Magnificent opportunities for private definition are created by the silence of the government. Not a day goes by that we are not provided with assurances by the oil industry that a refinery in the neighborhood causes the 2 Emma Rothschild 'Illusions about Energy' New York Review of Books 9 August 1973,29-34 3 See the report of the Environmental Protection Agency, Senate Doc. 92-6, 16 March 1971, 3-2, 4 New York Times 7 March 1974, 32; 17 April 1974, 38 5 John Kenneth Galbraith The Affluent Society (New York, Mentor Books 1958)

22 Hobbes and America fish to multiply and the birds to congregate, by the peddlers of Cocacola that soft drinks in non-returnable bottles are the 'real' thing, that skidoos add zest to winter life, that driving a particular automobile is synonymous with ease and luxury and living in the country air. Advertising practices of General Motors do not inspire confidence in this regard. In the years prior to the passage of the Clean Air Act of 1970, GM publicly lobbied against the legislation while spending an estimated $250 million to change its slogan on billboards and promotional materials to read 'GM, Mark of Excellence.'6 Since the passage of the act, GM, with much foot-dragging has developed a control for exhaust emissions at an expense of $800 million.7 To grasp the problem of pollution and energy in terms of an ideal of social action would require announcement of a levelling off of industrial growth, a reduction in profits, government regulation of the process and product of production, the encumbrance and expense of recycling facilities, the development of alternative energy sources, and the beginning of energy conservation. But the traditional role of public authority has been to implement decisions made in the private sector involving the use of land, air, water, and mineral sources.8 It is unlikely that this subservient role toward the private sector will be altered. As we move into the last quarter of the twentieth century, the prevailing rationale, tacitly underscored by the government, will be to maximize profits in the short term so that a few can afford gas masks and a home in exurbia over the long term. Criminal recidivism is yet another area which is not an object of decision of the sovereign in America, and it now seems clear that the Attica riots will not alter this condition. On the basis of federal work-release programs and on the significant finding that 80 per cent of all felonies are committed by repeaters it is conservatively estimated that an adequate probram of rehabilitation would reduce the serious crime rate by 6 Ralph Nader 'A Citizen's Guide to the American Economy' New York Review of Books 2 September 1971, 17 7 New York Times 24 March 1974, sect. 3, 1-2 8 Large tracts of public land were given away, or sold at a minimal fee, in the nineteenth century to small farmers, railroad companies, and speculators. In the early twentieth century the government sold out mineral rights and timber rights on public lands to private developers. See Henry Nash Smith Virgin Land (New York, Random House, Vintage Books 1950) and Robert La Follette Autobiography, with a foreword by Allan Nevins (Madison, Wisconsin, University of Wisconsin Press 1961).

23 Operative realities one-half.9 Typically, public officials have reacted to the high crime rates produced by recidivism by strengthening police forces and by allocating correctional staff to the task of custody: 'Ninety-five cents of every dollar spent in penology is for custody, pure and simple; five cents is for services essential to rehabilitation and crime reduction.'1 Developments following the Attica riots indicate that this pattern will be accentuated with the creation of a 'maximum-maximum' facility for those criminals considered to harbor dangerous tendencies.2 Despite the demonstrated inefficiency of police patrol in preventing crime, an excessive share of the law-enforcement budget of American cities is directed to police. In New York City, as a representative example, 71.65 per cent of the crimefighting budget is directed to police functions and 4 per cent to rehabilitation and drug treatment programs.3 Aside from considerations of simple humanity, it would appear that the extremely high social costs of recidivism would produce an appropriate response from the government. This reflection is based on the reasonable but unwarranted assumption that the American sovereign can perceive the inappropriateness of present ways of dealing with this problem and can innovate socially to resolve it. Another characteristic feature of American politics resulting from the operative realities described is that a high degree of turmoil is generated by the normal operation of American political institutions. Empirical political theorists have insufficiently explored this phenomenon despite its obvious relation to Madisonian politics. I suggested above that the guiding principle of Madisonian politics is to politicize the helium omnium ad omnes by giving each individual in society the means of resisting transfers of power from himself to others. The interior structure of the government cunningly directs the ambition of every man against that of every other man. But Madison's despair over the constructive uses of authority ends by exacerbating rather than moderating social tension, because it builds antagonism into the structure of government and makes violence an inescapable feature of participation in the political process. While the system is designed to encourage transactional relations as a means of resolving conflict, the hazard always remains, and 9 1 2 3

Ramsey Clark Crime in America (New York, Simon & Schuster 1970) 215 Ramsey Clark 1A Nickel for Rehabilitation' New York Times 30 September 1971 ) 47 New York Times 7 October 1971, 47 Ibid. 14 March 1971, 1,70

24 Hobbes and America is indeed made a premise of the normal operation of political institutions, that a party which has failed in the push and shove of pressure group politics will employ violence to achieve its goals. The important inference to be drawn from Madisonian principles is that the aberrant and lawless behavior of the 'out groups' cannot be distinguished from the norms of behavior of those in power. To put the point another way, those who take the law back into their own hands are not acting according to principles which differ from those groups who are in possession of power and who would be prepared to act illegally were the outcomes of public policy threatening to become substantially different. There is no true distinction between the manifest violence of the out-groups who commit infractions of the law and the latent violence of the in-groups possessing power.4 Recent empirical studies in history and political science support the view that we as a national society are regularly disposed to violence by the ideology and working arrangements of American politics. Ted Robert Gurr shows that the United States ranks ahead of the seventeen other democratic nations of Western Europe and the British Commonwealth in magnitudes of all strife. America is distinguished from these nations by a high incidence of turmoil, viz. relatively spontaneous, unorganized strife including strikes, political demonstrations, riots, political and ethnic clashes, and local rebellions. By contrast, the magnitude of strife produced by conspiracy and by internal war in the United States is relatively low. Conspiracy is defined as highly organized strife such as political assassinations, coup d'états, and small-scale terrorism: internal war is defined as highly organized strife including civil wars, guerilla wars, and 'private' wars among ethnic, political, and religious groups.5 In a separate though related study Richard Rubenstein develops the thesis that American groups and individuals have historically employed violence after the traditional means of pressure-group politics have failed to yield the desired results. The goals sought by these groups could invariably have been provided through existing institutions, but through impatience for cultural, political, or economic 'independence' violence 4 See the account by H. Mark Roelofs, 'Propensities toward Violence in the American Ideology' in Harry Clor (ed.) Civil Disorder and Violence (Chicago, Rand McNally&Co. 1972) 109-28. 5 See Violence in America 572-624.

25 Operative realities was employed.6 This history of violence falls into the category of rebellion - an attempt to extract short-term gains from presently constituted authority. Revolution - an attempt to change the principles on which authority in society is constituted - has not been sought by the leadership of any of these movements. Rarely, if ever, does a domestic group attack the powers that be at their source. Indeed, it may be argued on the basis of Professor Rubenstein's evidence that violence in American history has had the paradoxical effect of strengthening public authority on the principles on which it has traditionally been constituted. On the present political scene, black secessionism and the Wallace movement evoke the violent and static character of American politics with demands for local control over police, schools, and social services. At least one black intellectual, aware of the kinship with Calhoun, has called upon the black secessionists to transcend the American history of rebellion.7 The American Revolution provides a typical example of the limited political aims for which Americans have been willing to fight. The revolutionary struggle was anticipated by the Appalachian farmer revolts in the 1770s and 1780s against the economic exploitation of East-coast rulers. As in the patriots' later conflict with the British, the aim of these insurrections was not to overthrow the British government but to establish a de facto independence on their own home grounds.8 Insurgent Appalachian farmers sought to shut down the local courts and to drive tax collectors out of the territory. Although defeated by superior military force, the series of revolts did not end until Jefferson's election provided access to the political system and new land created fresh economic opportunity. Like the western farmers, the colonists had been left in peace for almost a century prior to the passage of the Stamp Act. So long as they were left more or less alone, the colonists considered themselves Englishmen. British attempts following the Treaty of Paris to assert her sovereignty at the local level were looked upon as usurpation and a deprivation of rights of self-government. As the struggle escalated, the colonists were threatened with further losses of 'independence.' Their livelihoods, their town meetings, and the privacy of their own 6 Richard Rubenstein Rebels in Eden: Mass Political Violence in the United States (Boston, Little, Brown & Co. 1970) 16,17. Also see Richard Hofstadter for views which parallel Rubenstein's thesis (Richard Hofstadter and Michael Wallace [eds.] American Violence: A Documentary History [New York, Alfred A. Knopf 1971]). 7 Harold Cruse Rebellion or Revolution? (New York, Apollo Editions 1968) 8 Ibid. 54

26 Hobbes and America homes were placed in jeopardy; the personal autonomy which has traditionally expressed the inmost meaning of the independence of the nation was placed in danger. Daniel Boorstin has suggested that the most appropriate label for the ensuing violent struggle to restore 'independence' in the colonies is 'colonial rebellion' not 'revolution.'9 Revolution is a misnomer because the colonists were merely attempting to restore the status quo ante. The peculiarly conservative nature of the event in which the American people violently discovered their national identity is the topic of much historical discussion and is characteristic of many other American rebellions in the nineteenth century and even in our own day. In the pre-Civil War period, a violent determination to safeguard cultural and economic independence prevented development of an enlightened policy of miscegenation, manumission, and civil rights.1 White southerners were unsuccessful in their efforts to obtain their maximum demand, juridical independence, but they obtained its functional equivalent in the postCivil War era. Southern klansmen ran carpet-baggers and scalawags out of the South and by force reasserted white control over local political institutions, customs, and economic opportunities.2 A gradualist policy of social transition, transforming the status of the Negro from slave to citizen, neither provoked the war nor constituted its logical outcome.3 The war settled no important social issues, but simply reaffirmed the doctrine, conceded even by Calhoun, that local autonomy should remain consistent with the existence of a legally unified nation. As the Appalachian revolt mounted no Tet offensive against the eastern cities, as the constitution of the Ku Klux Klan began with a declaration of allegiance to the United States, and as rioting urban ethnic groups never dreamed of establishing a Paris commune, so militant labor unionists in America did not foment (or wish to foment) a socialist revolution.4 It is generally recognized that American labor's focus on working conditions, wages, and the job differentiates it philosophically from the radical aims of European unionists. Victor Gotbaum, head of the union which shut down bridge traffic to New York City to force a 9 Daniel J. Boorstin The Genius of American Politics (Chicago, University of Chicago Press, Phoenix Books 1958) 70 1 Frank Tannenbaum Slave and Citizen: The Negro in the Americas (New York, Random House, Vintage Books 1946) 2 Rubenstein Rebels in Eden 67 3 Tannenbaum Slave and Citizen 110 4 Rubenstein Rebels in Eden 36

27 Operative realities pay increase, has encapsulated the history and objectives of labor in these words. The labor union movement in this country was built by the hope, the courage, the strength, and the ideals of the outs who wanted in.'5 One may take as the motto of the movement the response of an anonymous policeman to the proposal that the issue of retroactive pay be settled by the New York Court of Appeals: 'Law and Order. There is no such thing. What we need is muscle/ 6 For labor, the economic equivalent of territorial independence and cultural particularity has been the job and stable local organization. To obtain these goals, militant labor unionists resorted to violence against local enemies and symbols of oppression like scabs, Pinkerton men, and company property. But they did not ordinarily attack employers in person, federal troops, or the props nominally appointed to the task of government. Eventually, labor unionists got what they wanted, as have most groups in American politics who are willing to marry violence to the pursuit of limited aims. The Wagner Act guaranteed stable local organization and a greater degree of job security through the recognition of the right to strike and to organize free of employer harrassment, and through preventing employers from engaging in 'unfair labor practices.' While the insurrections in major cities in 1967 may be seen against the background of America's considerable history of ethnic-group conflict,7 we wish to suggest here that something more fundamental is involved than black skin and white prejudice. If the past is indicative, then the causes of urban violence cannot be removed by a change of heart: 'We must get the slums out of the people,' 'We must "Give a Damn!"' etc. America's history of turmoil implies that the causes of urban rioting are not psychological and temporary but structural and (at least, so far) permanent. Again, as in the American revolution, the Civil War, and the labor movement, it is important to note that social policy neither provoked the conflict nor constituted its logical outcome. The Kerner Commission established that the typical rioter was not a criminal, a migrant, or a member of the under-class, but a competitive, self-respecting, Negro male with above-average education and political interests in relation to his peer group.8 The employment prospects of this rioter 5 Victor Gotbaum 'The Philosophy of a Unionist' New York Times 8 June 1971, 37 6 New York Times 17 January 1971, 1 7 Rubenstein Rebels in Eden 30 8 Report of the National Advisory Commission on Civil Disorders, with an introduction by Tom Wicker (New York, Bantam Books 1968) 128

28 Hobbes and America were not good but no worse than those of his neighbors who did not participate. The Kerner Commission interpreted the needs of this rioter in keeping with the American tradition of moderate reform. It urged the federal administration to reduce the multiple inequalities between those who live in the central city and those who live on the periphery (in dormitory neighborhoods, suburbia, and exurbia) through increased educational and job opportunities, bigger welfare checks, public and private investments, and fair housing.9 These recommendations, acted upon more or less in good faith by federal administrations, seek to manage conflict between those who live at the periphery and those who live at the center of the city, between the white commuter and the centralcity black, and to win for the black a degree of 'independence' in the pursuit of education, employment, and life-style in line with national traditions. To the extent that these reforms prescribe individualistic remedies for collective grievances and overlook the general deterioration of city life, they are also in keeping with America's past. The commuter who leans on his horn in a traffic jam, no less than the black who competes for the dubious privilege of replacing him, still harbors a propensity toward violence. A third highly visible characteristic of American politics is a proneness to petty corruption. The salience of this feature requires assimilation by a constitutional theory claiming to shed important light on the American political experience. In the Madisonian theory, and in the pluralist view, political actors holding public office are perennially engaged in bargaining with other political actors, public and private, for their authority. Although lacking in authority, private actors, at every level of governmental activity, often have as much influence as public actors, frequently more. Political influence is defined as a relationship between and/or among political actors in which one actor induces another to act in a way in which he would not otherwise act through a promise of rewards or threat of sanctions.1 Public authority augments (but is not the same as) political influence because it places at the disposal of public officials sanctions and rewards which serve as bargaining counters in negotiations with independently situated political actors. If, as the pluralists tell us, the stock of influence wielded by private 9 Ibid. 410-82 1 See Robert Dahl Modern Political Analysis (Englewood Cliffs, NJ, Prentice-Hall 1970) ch. 5.

29 Operative realities actors compares with those holding public office, and if, as the pluralists also tell us, transactional relations constitute the essence of the political process, then it should come as no great surprise that the American government is prone to impotence and corruption.2 After all, in the transactional relations in which all parties are involved, what is to be taken as legitimate coin? It is difficult, perhaps impossible, to distinguish the activities of some of the more notorious practitioners of influence-peddling on Capitol Hill from the practical advice dispensed by a scholarly commentator on the presidential office.3 Richard Neustadt says that a president must, in relations with members of Congress, negotiate on a footing of relative equality with those with whom he shares power. In these negotiations the president should, as always, deal 'in the coin of self-interest.'4 But, an interesting caveat, the president should exercise great caution because (unlike his constituents, the press, and administrative staff ?) congressmen 'have some freedom to reject [coin] they find counterfeit.'5 If the president deals in the coin of self-interest and even at that employs counterfeit coin on selected occasions, then we may fairly suppose that an un-policed dealing in questionable properties is a commonplace. The casual dealing in properties through transactional politics makes it difficult to classify and calculate the incidence of this variety of 'respectable' crime. It is possible, nevertheless, to specify outstanding characteristics; these are its ubiquity, its petty objectives, and the absence of any redeeming social function. First, political corruption stimulated by transactional relations is bereft of any redeeming social function such as redistributing the supply of material wealth. To be a beneficiary of the rules one must have limited aims and a minimal supply of working capital to start. Since negotiations, dealing in the coin of self-interest, are not deflected by 2 Evidence in support of this view is provided by Edwin Schur Our Criminal Society (Englewood Cliffs, NJ, Prentice-Hall 1969) ch. 5, Theodore Becker and Vernon Murray (eds.) Government Lawlessness in America (New York, Oxford University Press 1971), Theodore J. Lowi The End of Liberalism: Ideology, Policy and the Crisis of Public Authority (New York, W.W. Norton & Co. 1969) ch. 10, and Henry S. Kariel The Decline of American Pluralism (Stanford, Stanford University Press 1961) ch. 5 and 6. 3 See Robert Winter-Berger The Washington Pay-Off (New York, Dell Publishing Co. 1972). 4 Presidential Power 33 5 Ibid.

30 Hobbes and America charitable impulse and never accrue to the benefit of the under-capitalized sector, some have found reason to regret the passing of the era of the Tweed machine when graft was at least tinged with paternal charity.6 Perceiving the constructive uses of corruption, Machiavelli urges that the Prince 'must not mind incurring the scandal of those vices, without which it would be difficult to save the state/7 But the corruption engaged in by, say, Neustadt's presidential actor is justified solely on the grounds of personal expediency. In terms of its objectives, therefore, if not in terms of the aggregate amount on which figures do not exist, corruption in American politics is almost invariably petty corruption. Second, the de-centralization of power in the political system makes corruption a pervasive feature of American politics. Each political actor must obtain the concurrence of all the rest, through negotiations, in order to act. Ubiquity, therefore, is one of the most striking features about corruption on the American political scene. Theodore Lowi broadly asserts that the federal administration possesses the mentality of the big-city mayor who campaigned to destroy corruption and privilege through 'universalized traffic-fixing/8 At the local level of politics Michael Armstrong of the Knapp Commission states that the problem is not 'just a few rotten apples in a barrel' but the 'question of the barrel itself. ' 9 The causes of petty corruption in American politics, no less than the propensities toward violence and unattended social problems, appear to be structural and, quite likely, permanent features of the political landscape. Examples of corruption such as the Voloshen and Zweig trials,1 the censure of Senator Thomas Dodd, and the Watergate investigations are in a sense misleading because they imply that corruption occurs chiefly at the 'center' of power. Political scientists have documented the fact that corruption is a more common phenomenon in state and local politics.2 Neustadt has sought to distinguish between the misdeeds of the incumbent administration and the activities of administrations on which his own portrait of presidential power is based. Professor Neustadt states 6 Seymour Mandelbaum Boss Tweed's New York City (New York, John Wiley & Sons 1965) 7 The Prince and Discourses 57 8 The End of Liberalism 292 9 New York Times 24 October 1971, sect. E, 2 1 Winter-Berger The Washington Pay-Off 2 E. Redford et al. Politics and Government in the United States 2nd ed. (New York, Harcourt, Brace 1968) ch. 26

31 Operative realities that the cardinal difference between presidencies since F.D.R. and the Nixon presidency is not the amount of power exercised but a sense of 'propriety' previous regimes had about the uses of power: 'A generation ago, our system of formal checks and balances were strongly re-inforced by an array of informal restraints on White House conduct.' 3 With the Nixon administration the restraints of press conferences, separation of party and presidential staff, and gentlemanly conduct vanished away allowing the 'extraordinary impropriety' of Watergate. This retrospective introduction of 'propriety' into the exercise of presidential power is the most curious feature of Neustadt's essay. In the early essay on presidential power to which we have alluded the only 'proprieties' mentioned were a sense of propriety in one's person, in supporting clienteles, and in the interchangeable assets of money and power. Nothing was said about a sense of propriety in rules which would act as a restraining force on the transactional relations into which all parties are drawn. A logical inference from Neustadt's early essay is that the petty corruption arising out of transactional politics would lead precisely to a conspiratorial effort such as the Watergate break-in. The diversion of public resources to private gain is logically tied to the deflection of the political process as a means of sustaining oneself and supporting clienteles in office. This reflection underlines a point that has already been made. While empiricists are helpful in pointing to characteristics of the real world, their neglect of philosophy leads them to ignore characteristics of the world they allege to be fully describing. This chapter has sought to deal with several interrelated problems: the identity of the American constitutional philosophy, the form in which a constitutional philosophy exists in a national society, and the discrepancy between reformist interpretations of American constitutionalism and the pluralist's description of the working arrangements of American politics. Discussion of reformist constitutional philosophy has been postponed until such time as a clear understanding of the operative realities of American politics could provide an index to the identity of the philosophy of American constitutionalism. The pluralist description of the working arrangements of American politics acquires importance in the light of the fact that a constitutional philosophy is not an abstraction 3 Richard E. Neustadt 'The Constraining of the President' New York Times Magazine 14 October 1973, sect. 6. Contrast Arthur Schlesinger The Imperial Presidency (New York, Houghton Mifflin Co. 1973).

32 Hobbes and America existing in remote splendor from the squalid world of political practice. On the contrary, as we have shown, a constitutional philosophy is embodied in the actual working arrangements of a national society; it is dependent for its existence and operation on patterns of political behavior deeply etched over time. The working arrangements of American politics are, to repeat, ruthless individualism, transactional relations, conflict-management, and a merely policing sovereign. The purpose of American political institutions is the management of social conflict and this purpose is operationalized in a political process involving bargaining and negotiation between independently situated political actors. These working arrangements produce the characteristic features of American politics in terms of unattended social problems, propensities toward violence, and a tendency to petty corruption. A constitutional philosophy of America, if it may be truly so called, must be able to accommodate these distinctive elements of the national political experience. Despite the valuable clues to the identity of the American constitutional philosophy provided by the pluralist school, the self-imposed inhibitions of this position severely limit an understanding of American political experience. The pluralist school is accurate, in the main, about the working arrangements of American politics and certainly highly suggestive about the characteristic results which follow from it. But the refusal to engage in a theoretical inquiry into the modes of consciousness which underly American political institutions and sustain their operation deprives the pluralist of a frame of reference which can be employed in evaluating the practice he describes. As a consequence, the working arrangements of American politics-the goals pursued by actors in the political process and the way they are pursued - are viewed as the outlines of nature, rather than, correctly, as an intentionally created political system. If we turn from the empiricists to the reformers for assistance in understanding American constitutional philosophy, we also encounter sharp disappointment. Provisionally, we may say that while reformist interpretations of American constitutionalism are attentive to the modes of consciousness which underlie the working arrangements of American politics, a content is ascribed to these modes of consciousness which is wholly out of keeping with the actual behavior of those engaged in politics. Consequently, much information about the political process itself is suppressed by this position, not to mention characteristic features of the American political experience. The tentative conclusion may be reached that neither the reformist nor the pluralist school of American politics can supply a philosophy of

3 3 Operative realities constitutionalism which throws adequate light on the purposes embedded in the working arrangements of American politics and on the American political experience. The reformist theory of constitutionalism cannot absorb information dispensed by the pluralists about the pattern and purpose of American politics. On the other hand, the pluralist statement of the operative realities of politics presents a narrowly focussed account of the American constitutional philosophy and an impoverished understanding of the American political experience. The student of American politics is, therefore, faced by two curiously unsatisfactory choices in the current literature of American politics - one a philosophy of constitutionalism which erroneously interprets the national political experience and the other which falls into apathetic silence about the innermost meaning of that experience. The deficiencies of the reformist and the pluralist interpretations of American politics may be attributed to a common source - failing to analyze what a constitutional philosophy is and does. The shortcomings of the reform interpretations of American constitutionalism will be the focus of attention in the following chapter. Here we wish to stress that the excision of the modes of consciousness which underlie American politics is no less serious in its intellectual consequences than misinterpretation of the American constitutional philosophy. The hazard most often ascribed to the pluralist, empirical school is that its members are unwitting advocates of an ideological position.4 But the dangers to which we are exposed by this position may be stated in more harrowing terms. We are deprived by the pluralists of an opportunity of evaluating our national political heritage in terms of its fundamental orientations and in the context of its historical trajectory. The modes of political behavior which we have inherited may be wildly inappropriate in relation to current experience. Nevertheless, so long as the flattened-out perspectives of the pluralist school are taken as synonymous with political reality, we shall never have the opportunity of learning about our error.

4 Theodore Lowi Pluralism as an Ideology' in Philip Abbott and Michael Riccards (eds.) Reflections in American Political Thought (New York, Chandler Publishing Co. 1973)

2

De-mythologizing American politics

If reform interpretations of American constitutionalism cannot be reconciled with the actual conduct of domestic politics, this raises the question whether the citizen energies mobilized by the reform school serve any constructive purpose in American politics. Much expository writing on American government, especially the two works under surveillance in this chapter, encourage reform of American political institutions. But, if we take seriously the Platonic maxim that theory is a necessary guide to rightly oriented political action, it follows that a different theory of American constitutionalism might well indicate a different course of action. The satisfaction reformers take in enlisting citizen energies in the reform of the party system, or encouraging crusades through the judicial process, is inspired by the presumption that there are valuable social ideals already served by domestic institutions. Reform means the restitution of certain inherently valuable norms from which recent experience constitutes an unfortunate departure. However, an infinite degree of industry spent in the reform of American political institutions will not bring any of these goals nearer fruition, if the institutions were not designed to serve the purposes that the reformers advance. The reason for the failure of the reform tradition lies in a mistaken interpretation of the constituent purposes of American political institutions. The least interesting aspect of reformist myths about American constitutionalism is the myths themselves. Since they have little explanatory value in relation to the phenomenal world of American politics, one has to defend the value of studying them at all. The simplest answer is that the myths are widely believed in and that we must begin where others are if we are to take them elsewhere.

3 5 De-mythologizing American politics A survey of the literature reveals two major schools of reform politics, mounted upon two contrasting interpretations of American constitutional tradition - popular sovereignty and natural law. Typical of the first of these schools and the proponent of its dependent interpretation of American constitutionalism is James MacGregor Burns. The essence of this interpretation is that the people are an independently acting, ruling authority alive in the course of native history.1 The form in which the sovereignty of the people is exercised varies; it may take the form of the sovereignty of the electorate, the sovereignty of public opinion, the sovereignty of a political party, and sometimes the final sovereign is regarded as the titular leader of a party. In Burns's work attention is often focussed on a heroic presidential leader who, it is implicitly claimed, virtually represents the will of the whole 'people.' At other times, he suggests that the final sovereign is a coalition of electoral groups whom we might refer to as 'right-thinking people.' Arthur Holcombe is a leading spokesman for the interpretation of American constitutionalism upon which the second reform movement rests. His approach emphasizes that the people have vested sovereignty in a pattern of law. This interpretation is linked to the natural law tradition in political thought2 and is in obvious conflict with the popular 1 The popular sovereignty interpretation of American constitutionalism is not an invention of Burns; it is foreshadowed by a succession of distinguished students of American government including J. Allen Smith The Spirit of American Government (New York, Macmillan Co. 1907), Woodrow Wilson Congressional Government (New York, Meridian Books 1956), William H. Riker Democracy in the United States 2nd ed. (New York, Macmillan Co. 1965), E.E. Schattschneider Party Government (New York, Parrar Rinehart 1942), Committee on Political Parties of the APSA Toward a More Responsible Two-Party System (New York, Rinehart 1950). The text which most completely embodies the popular sovereignty interpretation is co-authored by James MacGregor Burns and Jack W. Peltason: Government by the People 7th ed. (Englewood Cliffs, NJ, Prentice-Hall 1971). Another expression of this view may be found in Louis W. Koenig The Chief Executive rev. ed. (New York, Harcourt, Brace and World 1968). 2 This interpretation of American constitutionalism also has a rich heritage. Foremost among the proponents of this position are E.S. Corwin The 'Higher Law' Background of American Constitutional Law (Ithaca, Cornell University Press 1955), Carl J. Friedrich Constitutional Government and Democracy 4th ed. (Waltham, Mass., Blaisdell Publishing Co. 1968), Charles Howard Mcllwain Constitutionalism: Ancient and Modern rev. ed. (Ithaca, Cornell University Press 1947), Andrew C. McLaughlin The Foundations of American Constitutionalism (Greenwich, Conn., Fawcett Publications 1961), and David G. Smith The Convention and the Constitution (New York, St Martin's Press 1965). This view is

36 Hobbes and America sovereignty interpretation put forward by Burns. The notion that the people have retained the sovereign power of choice is in conflict with the notion that the authentic sovereign of the nation is the law of the constitution. One cannot imagine Holcombe urging an heroic, presidential figure, as Burns does, to flout the institutional structure laid down by the constitution: 'We need a president who will change the institutional structure around him because he will see that he cannot achieve his goals within it, and who will understand what changing the structure means.'3 For Holcombe, neither the electorate nor the political party nor, certainly, a great popular leader (even granting that he has captured the popular imagination with a compelling style and assemblage of ideas) is presumed to be able to supplant the constitution. The supremacy of the constitution is based on the presumption that it embodies unchanging principles of right and justice. While Holcombe and Burns differ on the nature of ruling authority, they agree that American political institutions are sustained because they promote social justice, although they differ again on the manner in which social justice is implemented. In Holcombe's view a progressive rule of law is chiefly preserved in America through an independent judiciary which maintains a rule of law in performing the function of judicial review.4 The popular sovereignty interpretation of American constitutionalism put forward by Burns tends to focus on the election of the President as an instrument of progressive social choice. Burns implies that the election of a reform-Democrat to presidential office, for example, will produce 'fresh and creative ventures in foreign policy,' and 'a new style of life for urban man.'5 On the other hand, Holcombe expresses confidence in the legal capacity of the Supreme Court to prepare the nation for the 'neo-technical age' on which it is now entering.6

3 4 5 6

widely promoted among texts of American government: representative examples are Peter H. Odegard The American Republic: Its Government and Politics (New York, Harper & Row Publishers 1969), and Robert Carr et al. Essentials of American Democracy (New York, Holt, Rinehart & Winston 1971). James MacGregor Burns Uncommon Sense (New York, Harper & Row Publishers 1975)218 Arthur N. Holcombe The Constitutional System (Glenview, 111., Scott Foresman & Co.1964) 164 James MacGregor Burns Deadlock of Democracy (Englewood Cliffs, NJ, PrenticeHall 1963) 5 The Constitutional System 164

37 De-mythologizing American politics The most curious feature of reform myths about American constitutionalism is the discrepancy between the well-known operative realities of American politics and the rules said by the reformers to govern the conduct of the players. It is rather as if we were, like Alice, invited to play a game of croquet and found instead, in the actual playing of the game, that it was really about royal intrigue. We would protest that we wished the game to be given its true identity and that we preferred to play croquet. No matter, despite the obvious distortion of superimposing croquet on royal intrigue, all the players and local officials would insist on calling the game croquet. This brings us to the reasons underlying reformist myths of American constitutional purpose. Why persist in the face of all the evidence in calling the game croquet, when it is manifestly royal intrigue? The reasons underlying reformist myths are distinctly more interesting than the myths themselves, although a great deal more difficult to explore. We may begin by observing that the usual function of myth is to conceal. What are the reformers seeking to conceal and from whom? The answer suggested here is that the myths are designed to conceal the operative realities of American politics both from the public and from the mythmakers themselves. The myths conceal the operative realities from the reformers themselves who must find American political life tolerable. Myth allows for hope, and that, in the face of our age's problems, is what we long for. Reformers turn down the lamp of reason to allow mystery a chance. Take, for example, the discrepancy between social goals and the political institutions selected to implement them. The tendency of the reformers to exaggerate the performance capabilities of the presidential office and the judiciary flows from a comprehensive misinterpretation of American politics. It may be compared to employing the blunt end of a screwdriver, after a fruitless search for a hammer, to drive a nail into the wood. Although one's needs may be extremely urgent, pure imagination is not an adequate substitute for an actual hammer. We may suppose that the urgency of a critical situation can force bizarre results from the imagination. So it is with the reformers. Let us notice though that there are satisfactions of a neurotic sort to be found in calling the game something other than what it is. To some extent, intellectual oversight contributes to the fantasy life of American reformers. We have taken pains to show that the constitution is not an independently meditated ideology existing in remote splendor from the squalid world of political practice. It exists immanently in the uniquely devised working arrangements, the operative realities of poli-

38 Hobbes and America tics, through which the national society is enabled to act. The difficulty experienced by reformers in correlating the actual daily conduct of American politics with their theory of constitutionalism may be set down, in part, to an incomplete notion of the form in which the constitution exists in a national society. Reformers employ a narrow idea of the form in which the constitution exists, and this produces mistaken interpretations of identity. At the same time, willfulness probably underlies intellectual mistakes of this variety. There are advantages to ignoring characteristics of the real world. Inconvenient details of the real world do not interfere with the classical and romantic ideals of constitutionalism one wishes to promote. Despite the clear impact of Madison's idea of conflict-management upon the American political process, it need not disturb the classical view that the constitution imposes an ideal pattern on human existence, or the romantic view that the people are an independently acting, ruling authority. Reform interpretations succeed at one of the traditional, less widely recognized functions of the university, drawing a veil over experience. Through myth, the reformers make things more tolerable for themselves and for the rest of us. The operative realities of American politics - transactional relations, conflict-management, ruthless individualism, and a policing sovereign - are profoundly disturbing to the mind. Myth shields us from such bitter and unpalatable truths. Given the accuracy of the description of the working arrangements of American politics, all lose through the existing political arrangements, some absolutely and others relatively so. Such a proposition is unacceptable. Myth steps in to provide us with a reason for going on within the existing system and losing! De-mythologizing American politics will challenge many beyond the cognitive levels of conventional political discourse. But the unbelievable might be the truth. The primary effort of this volume is to tell the truth about the American polity. But the interdependencies of power and truth work in behalf of the established verities. So long as it is believed that the Supreme Court is endowed with powers of godlike reason to conform the life of the nation to an ideal pattern of law, all is well. So long as there is confidence that heroic presidential leaders will come forward in times of public need, there is nothing to fear. Strip away the myths and the game of American politics is corrupt, sterile, and deprived of purpose. We become less comfortable with the institutional arrangements, no matter what our place in them. The myths, therefore, have a logical function, but one wholly divorced from the explanatory role they ostensibly serve. They provide a means of sustaining the exist-

39 De-mythologizing American politics ing political arrangements through concealing their true nature. Only by patient analysis can we hope to disturb the secure place occupied by myth in the American political consciousness. A word is in order explaining the reasons for focussing this critique on Burns and Holcombe, instead of such reasonable counterparts as, for example, E.S. Corwin and J. Allen Smith, or Carl J. Friedrich and William H. Riker. First, Holcombe and Burns contribute a contemporary perspective and urgency to established positions. Holcombe is persuaded that the judicial process is a key to the problems of the neo-technical age on which the nation is now entering.7 Burns is apparently convinced that presidents who follow his prescription for leadership will successfully resolve many critical domestic and international problems.8 Second, Burns's and Holcombe's teachings about American political tradition are enormously popular and influential. The view of Holcombe, who is a past president of the American Political Science Association, is subscribed to by Senator Hubert Humphrey, 1968 presidential candidate of the Democratic party, in a laudatory introduction. 9 Burns, the incumbent president of the American Political Science Association, has been a confidante of the Kennedys and an inspiration to reform movements in Boston and New York. His works are seriously read not only by scholars but also by news commentators and editorialists.1 Moreover, his textbook on American government, co-authored by Jack Peltason, is probably the most widely used in the political science profession. A third reason for focussing attention on Burns and Holcombe is that the conventional positions which they advance are expressed powerfully and uncritically. Faith in the vitality of American political institutions is fostered at the expense of faithfulness to all the elements of American political experience. In this regard, the lapses of Burns and Holcombe might be less unfortunate if they were not so widely imitated. Most texts on American government, we have already noted, encourage reform of Americal political institutions. These texts bear a heavy responsibility, for they claim to give students the opportunity of participating intellectually in the range of purposes promoted by the national society of which they are a member. If this claim is to be made good, a philosophy of the constituent purposes of political institutions must be 7 Ibid.

8 Deadlock of Democracy 340 9 Constitutional System introduction 1 See the 'blurbs' by Tom Wicker and Roscoe Drummend on the jacket of The Deadlock of Democracy.

40 Hobbes and America set forward bearing fidelity to the practice of politics. Here the reformers fail us. The myth of constitutional purpose which they advance continually interferes with their ability to report, fully and faithfully, the most important elements of American political experience. It is now time to look at the manner in which myth distorts our experience of American politics. The major doctrines of the popular sovereignty interpretation of American constitutionalism are responsible party government, virtual representation, presidential leadership, and representative democracy. The operational view of American institutions projected by this interpretation is that like-minded people, Republicans or Democrats, obtain a majority at the polls in support of a set of candidates committed to a specific program of political action and that, once in office, the candidates diligently strive to carry out this program.2 The policy objectives of the party are implemented through presidential leadership, party caucus, an elective leadership, and party solidarity in voting. In the Congress, for example, the political parties would caucus to elect leaders responsible for drafting legislation which the party had committed itself to in political campaigning. The elective leadership would be assisted in its task of passing this legislation by a preponderance of majority party members on the key standing committees of the House and Senate. Debate in the House and Senate would consist of a systematic opposition of views followed by a vote along party lines. If the majority had a president of the same party, the caucus would furnish a means for carrying out the goals of the president. Reform of the internal structure of power in Congress and of the national party system is needed, so it is said, to implement fully the ideals of popular sovereignty. The object of reform is to buttress the claim of the elected representatives, particularly the president, to represent the authentic will of the people. The proposals set forward by Burns in The Deadlock of Democracy seek to promote intra-party democracy (a popular choice of party leaders) and inter-party democracy (a distinctive choice of parties and candidates). Intra-party reforms center upon the election of officers to state and national party headquarters and the practices surrounding the presidential nominating con2 Burke's definition of a political party as 'a body of men united, for promoting by their joint endeavors the national interest, upon some particular principle on which they are all agreed' is presumed to describe political parties in America.

41 De-mythologizing American politics ventions. Reform of the internal structure of power in Congress is advocated to achieve the goals of inter-party democracy. These reforms include the following: (1) vesting political power in the elected leaders of the majority party, notably the Speaker of the House and Senate Majority Leader, (2) providing the majority party with added weight in numbers on the key committees of the Senate and House, (3) bringing the President and the leaders of the majority party closer together in terms of financial and constituency support through the creation of concurrent terms of office and consolidated campaign funds, (4) establishing party organs for mutual consultation between the presidential and congressional wings of the party, (5) removing obstacles to deliberating and voting upon legislative proposals such as are imposed by the Senate filibuster and House Rules committee.3 From the beginning, the office of the presidency has been the focus of the hopes of the proponents of responsible party government. The president, Wilson said, is at once 'the choice of the nation and the party,' 4 and therefore has a special claim to represent the authentic will of the people. Burns plunges into mystique, stating that 'the fact that any President articulating the modern values of freedom and equality seem to be speaking for the great bulk of the nation [is explained by] the simple reason that he is so speaking.'5 This perspective on the presidency revives not only Burke's doctrine of party government, but also his doctrine of virtual representation. If the claim that the president represents the will of the people is valid, it is clear that his will ought to prevail over rival claimants to power. The view that Congress might claim to represent the will of the people is set aside by the allegation that Congress is controlled by special interests.6 An analysis of Burns's theory of constitutionalism shows that there is a discrepancy between the cherished vision of the American people as 3 Burns Deadlock of Democracy 327-30. Also, consult Woodrow Wilson Congressional Government 81, Stephen Kemp Bailey The New Congress (New York, St Martin's Press 1966) 106, Louis W. Koenig The Chief Executive, Riker Democracy in the United States 332-3, Committee on Political Parties of the APSA Toward a More Responsible Two-Party System. 4 Woodrow Wilson Constitutional Government in the United States (New York, Columbia University Press 1908). For similar views on the presidency see Riker Democracy in the United States 332-6 and Koenig The Chief Executive 10-12, 127-9. 5 James MacGregor Burns Presidential Government (New York, Random House 1966)326 6 Burns Deadlock of Democracy 241-9

42 Hobbes and America an independently acting, ruling authority, alive in the course of native history, and the elements of American political practice. Mysteriously, Burns forgets much of what he knows of the practice of American politics when the moment presents itself to trot out the myth of a progressive people obedient to the rule of law. For instance, much of the substance of Burns's constitutional philosophy lies in the assumption that the nation desires a great leader to rescue them from present afflictions and that it is willing to vest considerable authority in a leader capable of charting a course of social progress. To grant that this popular assumption may be true is only to stress the point that it is at variance with what we are told of the capacities of the presidential office for influencing domestic policy.7 The notion that the presidential office offers opportunities for progressive political action because it is unsullied by the special interests which control Congress disregards evidence concerning the manner in which presidential power is captured and maintained.8 To illustrate the impotence of the American president in domestic matters we may take as a case in point the aforementioned problem of conurbation in America. Burns implies that the election of a reformDemocrat to presidential office will transform the metropolitan environment, making megalopolis 'not only habitable but hospitable to man.' 9 At the same time, he states that even the most venturesome reformer who runs as a presidential candidate will have to acquire the support of the middle class which is 'essentially moderate' in political outlook.1 Nothing could be more contradictory. It is certain, as we have shown, that a candidate who proposed to arrest the present decline of American cities into a sprawing mass with a great central blighted area would have to challenge the most cherished institutions of American life. No one who had reached the stage of becoming a presidential candidate would dream of proposing the required degree of social change. The historical trend of American cities, if Philadelphia is a norm, is toward a society 7 Compare Richard E. Neustadt, who stresses that the presidential office is much overrated as a means for achieving changes in public policy, particularly where domestic affairs are concerned. Characteristically, he asserts that Viability' is the most important criterion to be followed in drafting the President's legislative program. See Richard E. Neustadt Presidential Power (New York, John Wiley & Sons 1960)192. 8 Aaron Wildavsky and Nelson Polsby Presidential Elections 2nd ed. (New York, Charles Scribner's Sons 1968) and Theodore White The Making of the President: 1960 (New York, Bantam Books 1960) 9 Burns Deadlock of Democracy 5 1 Ibid. 336

43 De-mythologizing American politics of hermetic individuals loosely presided over by police authority.2 The city, like a doughnut, has its substance at the periphery with few resources in the neighborhoods surrounding 'center' city. In the face of these pressures, a policy favorable to the suburbs and increased dispersion is likely to emerge. Such a policy is Nixon's New Federalism, which provides disproportionate revenues to the suburbs. These are used to defray taxes already low in comparison to city rates.3 Even a reform-Democrat of the heroic dimensions described by Burns is unlikely to oppose such formidable social pressures. The myth of presidential leadership is assiduously cultivated. Even when the situation is well beyond presidential authority, and even when the incumbent has no policy in relation to it, pretensions must be maintained. When Gerald Ford assumed office consumer prices were rising at a compound rate of 16.8 per cent, unemployment was at 5.3 per cent, the Gross National Product was dropping at an annual rate of 4.2 per cent, and home-building had practically stopped as mortgages were carrying interest rates as high as 10.5 per cent. President Ford had no policy in relation to these conditions, described as an 'inflationary-recession,' and still has none. This did not deter him. Indeed, the absence of policy and authority, the real articles of leadership, describes the conditions under which it becomes necessary to deploy myth. President Ford called a 'Domestic Summit Meeting' composed of all the most influential economists and the most important interest groups. An abundance of conflicting advice was given to the president, to which he paid no attention;4 following the conference, he could be heard on a national hook-up advising the people to plant more radishes, drive their cars less often, avoid the use of credit cards, and to take cold showers. Other presidents have been more careful to surround myth with the trappings of policy and action. A similar discrepancy between theory and practice broods over Burns's discussion of the national party system. The reforms directed to the decision-making process in Congress and to the political parties are based on the like-mindedness of the members of the majority party and 2 See Sam Bass Warner The Private City (Philadelphia, Pa., University of Pennsylvania Press 1968) and Conrad Weiler Philadelphia: Neighborhood, Authority, and the Urban Crisis (New York, Praeger Publishers 1974). 3 See New York Times 23 June 1974, sect. E, 3 and The Philadelphia Inquirer 7 July 1974. 4 See the account by Richard Reeves A Ford, Not a Lincoln (New York, Harcourt, Brace 1975) 153-66.

44 Hobbes and America on the unlikelihood and undesirability of conflict between the presidential and congressional wings of the party. In fact, the political parties are not composed of like-minded people but are a loose coalition of state and local forces animated by widely disparate goals.5 The unity which the party presents to the public in the presidential elections is fictitious. This unity evaporates when the party takes up the task of government. The notion of liberating the majority party in Congress to enact a legislative program is weakened by the political fact that the parties are composed of factional elements unresponsive to a common program of action.6 None think or act within the romantic possibilities described by Burns. Instead, realistically, a transactional pattern between independently situated actors is the norm. The discrepancy between the performance capabilities of American political institutions and the constitutional theory advanced by Burns would ordinarily lead to a revision of the latter in the light of the available evidence. For Burns, this re-examination of constitutional theory would have the unfortunate result of deflecting citizen energies into something other than reform of American political institutions. Most analysts of the political process agree that American political institutions are not designed to facilitate the transmission of popular enthusiasms through the organs of party government or the presidency. Indeed, the popular sovereignty interpretation of American constitutionalism is flatly contradicted by Madisonian principles such as separation of powers, federalism, and checks and balances, and by modern studies of voting behavior.7 Reform of American political institutions would bring about more of the allegedly corrupt system of 'minorities rule' so deplored by Burns. Faced with these difficulties, Burns turns to a pleasing myth of constitutional purpose and distorts political practice to agree with the general contours of his story. If one cannot find any mention, let alone coherent explanation, of the propensities toward violence, of a proneness to petty corruption, or of a characteristic neglect of social problems in Burns's account of American political experience, this outcome should not cause surprise. 5 Allan P. Sindler Political Parties in the United States (New York, St Martin's Press 1966) 73-5, 83-7 6 Daniel M. Herman In Congress Assembled (New York, Macmillan Co. 1966) 216-36 7 See Bernard R. Berelson et al. Voting (Chicago, University of Chicago Press 1954) ch. 14 and Angus Campbell et al. The American Voter (New York, John Wiley & Sons 1960) chs. Sand 9.

45 De-mythologizing American politics One cannot refrain from asking Burns what the controversy is all about if, as it turns out, both majoritarian democracy and the reportedly corrupt system of minorities rule provide moderate government in accordance with the traditions of American politics. The reasons for Burns's preference for majoritarian rule become obscure when it is learned that it makes little difference whether the majority is provided with instruments of government or the present system of minorities rule is retained without change. Burns states 'It is curious that majoritarian politics has won such a reputation for radicalism in this country. Actually it is a moderate politics; it looks radical only in relation to the snail-like progress of Madisonian politics.'8 Assuming with Burns that the basic sympathies of the American people lie with a moderate form of political rule, then we must observe that the present political system is an admirable instrument of their wishes. The intended effect of the Madisonian constitutional design of separation of powers and federalism is the frustration of concerted political action by temporary majorities or by a minority faction. In Burns's own words, Madison engineered a mechanism 'of interlocking gears of government, each one responding to different thrusts originating in different groups of the electorate.'9 To get the gears to mesh demanded negotiated settlements among the groups who had their hands on the gears. The controlling objective of Madisonian constitutional design is not to promote political change but to promote political equilibrium by giving each interest group an opportunity to achieve some, though not all, of its objectives, and thereby to develop a vested interest sufficient to maintain the constitutional rules of the game.1 The outcome of these reflections is either that Burns is not serious about the need for extensive social reform, or that he does not have a 8 Burns Deadlock of Democracy 336 9 Ibid. 42. In Constitutional Government in the United States Wilson stated that the chief obstacle to the establishment of party government was the Madisonian constitutional design which ordained a dispersion of powers between the federal and state government and among the federal branches of government. See Wilson Constitutional Government in the United States 55-7, 203. A similar view toward the constitution may be found in Smith The Spirit of American Government and in Riker Democracy in the United States 141-9. 1 Robert Dahl Preface to Democratic Theory (Chicago, Rand McNally & Co. 1964) 137-45. The identity between moderate politics and the present constitutional system is pointed out by Austin Ranney in his article 'Toward a More Responsible Two-Party System: A Commentary' American Political Science Review 45 (June 1951): 499.

46 Hobbes and America witting grasp of the political instruments required to implement his social goals, or both. If Burns were serious about the goal of extensive social reform, he would not refer to it as a 'moderate polities' carrying appeal for 'middle-class independent voters.'2 If he had an intelligent grasp of the sort of institutions which would introduce important social reforms, he would not find them consistent with the limitations of politics in the present constitutional system. One acquires the impression of the reformer as a man of pious hopes but with little intention of substantially realizing the expectations he engenders. The major doctrines of the natural law interpretation of American constitutionalism are the social compact, the rule of law, freedom under the law, training in the duties of citizenship, an independent judiciary, checks and balances, and separation of powers. This critique challenges the view that these doctrines assist the understanding of American constitutional tradition as it underlies our major political institutions and shapes our actual daily political experience. A central theme of the natural law interpretation of American political tradition is that law is a rule of reason uninfluenced by passion. Reason perceives in the organic processes of society a purposive activity which is rational in the sense that all things have a final end and moral in the sense that this end is objectively good. The aim of human association is to make the rule of law, which is by definition in accordance with our highest good, prevail in all the organized activities of the community. This purpose is achieved through a constitution, whether written or unwritten, which distributes offices and powers, and enjoins a positive scheme of social ethics.3 In Holcombe's view the rule of law is primarily preserved in America through the Supreme Court, which maintains a rule of law in performing the function of judicial review. The elevated position the Supreme Court occupies in the constitutional system is reinforced by the principles that the American people have vested sovereignty in a pattern of law and that the Court speaks last in the ordinary process of law-making. According to Holcombe, the educational function of the Supreme 2 Burns Deadlock of Democracy 336 3 This formulation of the rule of law is somewhat more elaborate than the one provided by Holcombe, while remaining consistent with his views. The purpose of this is to disclose some of the philosophic underpinnings of the natural law position. See The Politics of Aristotle ed. and tr. by Ernest Barker (New York, Oxford University Press 1962) bk. 3, ch. 11, sect. 19-21; bk. 5, ch. 9, sect. 16.

47 De-mythologizing American politics Court is the most important function it has because the laws are a positive stimulus to make the members of society good and just. The Court should attempt to inculcate a National faith' in the members of American society that the balances of the constitutional system secure freedom under the law.4 The Court should not merely decide the cases which are brought before it; it should justify its decisions 'by reasoning that can enlighten and inspire the people of the country.'5 The appropriate sphere of responsibility of the Supreme Court is not the lawyers, who look to the decisions of the Supreme Court for authentic authority in advising their clients, but the people 'who look to the Supreme Court as the most authentic teacher of the principles of government under the constitutional system [and who] want a Court which is equal to its responsibility as the head of the national system of political education.'6 Holcombe affirms that if American political society holds fast to its faith in the rule of law, it will be fully competent to meet the challenge of the neo-technical age on which the nation is now entering. The tradition of a rule of law has consistently provided for a progressive course of political rule from the time of its rebirth in the high Middle Ages7 through to its renewals in the Glorious Revolution (1688)8 and the American Revolution (1776). The judiciary ought to be in the vanguard of contemporary social reform because of its traditional role of imposing an ideal pattern on the life of the nation: 'The present neo-technical age is one of the most dynamic in history and calls for changes in the constitutional system as well as in other aspects of the American way of life. There is no more appropriate means of making the necessary adjustments between the age that is passing away and the age that is coming into being than to put a new spirit into the Constitution. This cannot be accomplished as well by a single revolutionary political act of sweeping content as by a gradual adaptation of traditional rules of law to the changing conditions by the judicial process. In a time like the present the Supreme Court doubtless does act as a lawmaking and not merely a law-administering body.'9 Here I wish to contradict the thesis that the founding fathers con4 5 6 7 8 9

Holcombe Constitutional System 167 Ibid. 164 Ibid. 151 Holcombe Constitutional System 2 Ibid. 7, 8, 22 Ibid. 164

48 Hobbes and America stituted in the Supreme Court a bevy of Platonic guardians with the authority to conform the nation to an ideal pattern of law. Turning to the field of political practice, we may note that only through a selective treatment of Supreme Court cases can one support the position that the Supreme Court upholds a rule of law. To say the least, this is a fairweather philosophy of constitutionalism that averts its gaze from periods in which the Court has ruled in behalf of segregationists, western land speculators, public utility holding companies, slaveholders, and monopolists. In Robert Dahl's study of constitutional history, it is shown that the Supreme Court has not infrequently purchased the rights and liberties of a privileged group at the cost of the rights and liberties of a deprived group.1 This finding should not surprise one familiar with the views of the founding fathers on the role of the judiciary.2 The notion that the Supreme Court can be relied upon to provide progressive solutions to the problems of the neo-technical age seems whimsical in the light of Supreme Court rulings in the early New Deal era.3 A more frequently encountered view of the role of the Supreme Court was expressed by Chief Justice Burger in a 1971 interview. He declared, in essence, that the major contribution made by the Court is to settle finally the cases brought before it for decision and thereby to reinforce the public's faith in the judicial process. Burger pointedly rejected the theory that the Supreme Court constituted a useful instrument of social reform: 'It was never contemplated in our system that judges would make drastic changes by judicial decision/4 Another view of the Court that divests it of any special social significance is that it is one power group among others which must find terms with the coalition of groups that are influential on Capitol Hill and in the White House. The Supreme Court confers legitimacy on the fundamental policies of the successful coalition which has captured the presidency and one or both houses of Congress.5 Richard Nixon's statement, on the eve of the Haynesworth nomination, that it was time to appoint a 'Southern federal appellate 1 Robert Dahl Pluralist Democracy in the United States (Chicago, Rand McNally & Co. 1967) 163-70 2 Charles E. Beard The Supreme Court and the Constitution (New York, Paisley Press 1938) 3 See Alpheus Thomas Mason The Supreme Court: Vehicle of Revealed Truth or Power Group (Boston, Boston University Press 1953). 4 New York Times 4 July 1971, 24 5 DM Pluralist Democracy 167-S

49 De-mythologizing American politics judge who believes in a strict construction of the constitution' 6 illustrates this view. Even if one makes the concession, not a small one, that the Supreme Court demonstrates a praiseworthy sensitivity to social problems, its activities will be limited by an extensive sharing of power with the coordinate branches of government. The obvious reason for the failure of Holcombe's efforts to set the Supreme Court upon a pedestal as the guardian of natural law tradition is that the classical concept of a rule of law was never transmitted into American political tradition at all. Although this thesis will be developed at some length in the succeeding chapter, it may be established, at least provisionally, through a critical look at several of the most important doctrines of the natural law interpretation of American constitutionalism. These doctrines are that separation of powers and checks and balances incorporate a rule of law into the Constitution and that the Supreme Court, as the guardian of the constitution, is vested with the responsibility of training American citizens to virtue in keeping with the moral principles embedded in the fundamental law. In brief, we shall attempt to show that separation of powers originates in political expedients concerned with limiting the powers of government. A rule of law is compatible with an extreme concentration of power checked by an independent judiciary. Second, the classical theory of checks and balances does not apply to the circumstances of American society at any period of its social history. Finally, liberal constitutional theorists reject the view that the state has the responsibility of training its citizens to virtue, preferring to think of this as the private concern of Protestant families. The natural law theory of American constitutional tradition advances the view that the doctrine of separation of powers frustrates the coercive exercise of power and thus assists in the preservation of a rule of law. Holcombe declares that this principle constitutes the 'heart' of the constitutional system because it seeks to reconcile popular sovereignty with the rule of law.7 Separation of powers is also an extension of the principle of an independent judiciary; therefore the independence of the executive, legislative, and judicial branches of government applies a principle of proven worth in preserving a rule of law.8 E.S. Corwin de6 The New Republic 25 April 1970 7 Holcombe Constitutional System 32, 136 8 Ibid. 72

50 Hobbes and America clares that the opposition which separation of powers creates 'between the desire of the human governor and the reason of the law' incorporates the principles of the rule of law into the constitution.9 These views are contradicted by Mcllwain, who finds that the doctrine of separation of powers is not to be confused with the principles underlying an independent judiciary. The principle of separation of powers originates as a political expedient in the theories of Locke, Montesquieu, and Madison to check the powers of representative assemblies. Assuming the rights and duties of earlier kings, these assemblies took on a 'power and a responsibility that had always been concentrated and undivided.'1 Under these circumstances, 'political balances' became, to closet philosophers like Montesquieu, 'a demonstrable necessity.'2 Nevertheless, Mcllwain states flatly, 'the doctrine of separation of powers has no true application to judicial matters.'3 The principle of a rule of law which is manifestly a legal doctrine is perfectly compatible with an extreme concentration of power, when such power is checked by an independent judiciary whose thinking is informed by the rule of law. Holcombe's theory of an 'independent judiciary' in America is confirmed neither by the arrangements of the constitution, nor by the every-day world of American politics. As this is being written, the state chairman of the Democratic Party in New York is being investigated for the sale of judgeships in the Bronx.4 To those who read the newspapers and empirical accounts of the New York City court system, the remarkable fact is the timing of the investigation, not the sale of the judgeships.5 If by independent judiciary Holcombe means that personnel are selected independent of party politics, lowered down from above as it were, then the judiciary in New York City is manifestly not independent. If by independent Holcombe means immune from the pressures which shape decisions in the legislative and executive branches, then Corwin 'Higher Law' Background 8-9 Mcllwain Constitutionalism 142 Ibid. 141 Ibid. Alexander Passerin D'Entreves (The Notion of the State [Oxford, Clarendon Press 1967] 115-22, 90-91) and John Courtney Murray (We Hold These Truths [New York, Sheed & Ward 1960]307-8) agree with Mcllwain's finding that the doctrine of separation of powers has no application to natural law tradition. 4 New York Times 25 January 1976, 34 5 Wallace S. Sayre and Herbert Kaufman Governing New York City (New York, W.W. Norton & Co. 1965), ch. 14 9 1 2 3

51 De-mythologizing American politics again the courts in NYC and elsewhere are not independent. An accurate concept of judicial independence is given by Wallace Sayre: 'It is not impossible to negotiate with, or bring pressures to bear upon, a judge, but it is rather more difficult to reach a judge this way than to reach other public officials who are regarded, and who regard themselves, as having a primarily "representative" function in contrast with the emphasis on judicial independence.' 6 Another view frequently expressed by those who impose natural law doctrine upon American politics is that the principle of checks and balances represented an effort to stabilize competing social and economic forces in early American society and to provide a just solution to competing claims for class rule. The checks and balances exerted by the presidency, Senate, and House of Representatives promote a rule of law by giving each social class an equitable place in political rule.7 In theory, the special talents and virtues contributed by each of the classes to the constitutional system will prevent a decline into a perverted form of government and positively assist in improving the quality of public life. The presidential office, for example, offers an outlet for the claims of singularity, excellence, and heroism. The Senate is an appropriate avenue for the expression of the claims of wealth, learning, and social status. The poor and uncultivated mass will seek to advance their rough concepts of justice through the House of Representatives. The notion that the modern doctrine of checks and balances is derived from the classical tradition of a rule of law is seriously challenged by Martin Diamond. He points out that Madison's focus of concern in the Federalist papers was factional conflict, arising from the market opportunities of a commercial society, rather than class conflict of the variety experienced by ancient Rome and Athens.8 Madison distinguished between the composition of European society, which he considered capable of sustaining 'mixed regimes' consonant with the classical theory of checks and balances, and the composition of American society, in which the absence of monarchical and aristocratic elements made mixed 6 Ibid. 537 7 Holcombe Constitutional System 77-81. For an elaborate discussion of this point of view see Smith The Convention and the Constitution 78-9 and Paul Eidelburg The Philosophy of the American Constitution (New York Free Press 1968). 8 Martin Diamond 'The Federalist' in Leo Strauss and Joseph Cropsey (eds.) The History of Political Philosophy (Chicago, Rand McNally & Co. 1963) 581, 586, 592

52 Hobbes and America government an impossibility.9 In Madison's estimate, America was beginning a novel experiment in establishing an 'unmixed and extensive republic,' where neither the problems nor the solutions of classical political theory were applicable.1 Finally, as an interpreter of the classic tradition of a rule of law, Hoicombe should acknowledge that 'public education,' in the sense of training men to virtue, is rejected by the proponents of liberal constitutional tradition. The chief difference between Aristotle and Locke may be summarized in a sentence by observing that, whereas for Locke education is not a function of the state, for Aristotle it is its principal function. Locke assumed, in deference to the circumstances of his time, that the private family was a genuinely educational institution, molding children in accordance with the principles of Christian morality.2 Locke could therefore divest the state of the function of educating. It should not be surprising that the educational function which Holcombe proposes for the Court is missing from discussion at the Constitutional Convention and is rejected by scholars of a different persuasion from Holcombe in the present day.3 We must suppose that if the founding fathers had sought to constitute in the Supreme Court a bevy of Platonic guardians, they would not have neglected to incorporate a rule of law into the constitution. A provisional analysis of constitutional theory reveals that the classical idea of a rule of law was never transmitted into American political tradition. In the light of this finding, we may justifiably make the same analysis of Holcombe as we have made of Burns. The discrepancy between the performance capabilities of American political institutions and the constitutional theory advanced by Holcombe would ordinarily lead to a revision of the latter in the light of the available evidence. A substantial body of professional opinion, we have seen, does not agree with Hoicombe's view that the Supreme Court is a progressive instrument of social reform. For Holcombe, this re-examination of constitutional theory would have the embarrassing result of deflecting citizen energies to some other purpose than the reform of American political institutions. Holcombe therefore, like Burns, turns to a pleasing myth of constitutional purpose and distorts the field of political practice to agree with 9 The Federalist intro. by Edward Mead Earle (New York, Random House, Modern Library n.d.) 14:81 1 Ibid. 2 M. Foster (ed.) Masters of Political Thought 1 (Boston, Houghton Mifflin 1941): 128-9 3 See Learned Hand The Bill of Rights (Cambridge, Harvard University Press 1958).

53 De-mythologizing American politics the general contours of his story. Again, as in Burns, the hopes and energies of citizen-reformers is purchased through fantasizing the theory and practice of American constitutionalism. The reformer again strikes one as a man of pious hopes but with little intention of realizing the expectations which he engenders. I have so far established that the social goals identified by the reform tradition outstrip the capacity of American political institutions to deliver them. We may honor Burns's and Holcombe's proposals as proof of the good intentions of their authors. However, an infinite effort spent in the reform of American political institutions will not bring these goals nearer to fruition if the institutions were not designed to achieve the purposes that the reformers advance. The reason for the failure of the reform tradition has not been lack of zeal or industry but a mistaken interpretation of the constituent purposes of American political institutions. It makes little sense to vest great hopes in the reform of the judiciary and the national party system if the function which these institutions perform limits their social accomplishment even in a pristine state of reform. It seems neither intelligent nor honorable to direct citizens to reform if American political institutions are ultimately unresponsive to matters of major social importance. American reformers, I have argued, may be compared to those who, after a fruitless search for the hammer, employ the blunt end of a screwdriver to drive a nail into the wood. But an inquiry into the constitutional philosophy of the Founding Fathers seems to reveal that a hammer, an appropriate instrument of social action, was never at hand. This reflection sets the stage for further inquiry into American constitutional tradition. We remain in need of a theory of constitutionalism able to assimilate the elements of American political experience and to absorb the standard teaching about the operative realities of American politics. This political experience is not explained but suppressed by the theories of Burns and Holcombe. Reformist myths, wittingly or not, conceal the dominant forms of American political behavior from view. On the whole, there appears to be more health in the empiricist position. Here, at least, the behavior that is in need of explanation is given partial identification. But a truncated expression of political reality is provided by explanations of this variety. A general theory of the reasons underlying American political behavior is needed by reformers and empiricists. If we consider that these two strands of literature make up virtually all of what is said about American politics, then much information about the real world in which we live has never been brought to light.

3 The roots of American constitutionalism

We are now ready for a theory of constituent principles of American political behavior. It must be consistent with the finding that American political history is dominated by rebels seeking to obtain a form of independence which is ultimately quite private and personal. This theory of constitutionalism must absorb the view that the purpose of American politics, conflict-management, is operationalized through transactional relations between independently situated political actors. Finally, this constitutional theory must account for the perennial blindness of the American sovereign to glaring social problems and susceptibility to petty corruption. I shall show that Hobbes sets forward a constitutional theory meeting these criteria. Another task of the ensuing chapters will be to show that Hobbes's philosophy was conveyed into American political tradition through the mediate influence of Locke and Madison. To avoid excessive biographical and historical detail, the direct influence of Hobbes on Locke or of Locke on Madison will not be emphasized.1 Instead, I shall concentrate on showing that Hobbes is the author of a political tradition which tolerates and unites an internal variety of doctrine while adhering to a single character, and that Locke and Madison are members of this tradition.2 There are two major arguments which will be pursued in developing 1 The direct influence of Hobbes on Locke is established in some detail by Richard Cox and Peter Laslett. See Richard Cox Locke on War and Peace (London, Oxford University Press 1960) ch. 1 and John Locke Two Treatises of Government ed. with an intro. by Peter Laslett (New York, Mentor Books 1965) 88-9. 2 The characteristics of a political tradition are set out by Michael Oakeshott in Thomas Hobbes Leviathan ed. with an intro.by Michael Oakeshott (Oxford, Basil Blackwell 1957) xii.

55 The roots of American constitutionalism the thesis that Hobbes is the true ancestor of American constitutionalism. The first is an historical argument which directs attention to the constitutional crisis which occurred in England during the sixteenth and seventeenth centuries. If Hobbes is placed in the setting of this crisis, he may be seen as the first competent advocate of the claims and aspirations of the rising Protestant middle class. It was Hobbes's view that the authority of institutions founded on classical political tradition had been liquidated by the period of the Civil Wars (1642-6) and that authority in modern society would have to be the free creation of the absolute will of the individual. The principles of liberal democracy - government by consent, inalienable rights, and a right of resistance - are all derived from this single principle that the sole source of right is the absolute will of the individual. Hobbes sought to overturn the most cherished doctrines of classicism because they stood in the way of recognition of this principle. He has a serious claim to be considered as a revolutionary political thinker because he proposed to liberate a society imprisoned in the mold of classical constitutional tradition. The revolutionary views expressed in his philosophy were of critical importance in shaping the events of 1642-6, 1688, and 1776 examined in this chapter. The second major strand of argument, the philosophic case for viewing Hobbes as the parent source of American constitutional thought, will be discussed in chapter 4, which shows that Hobbes is the author of a new constitutional philosophy, conflict-management, suited to the genius of a liberal-democratic people. H O B B E S AND THE CIVIL WARS (1642-6)

We shall begin, as mentioned above, with the historical case for viewing Hobbes as a spokesman for the revolutionary aims of the Protestant middle class in England in the sixteenth and seventeenth centuries as a consequence of the Henrician Reformation. In 1531 Parliament made Henry vin supreme head of the Church of England and vested in him powers of appointment to ecclesiastical office and the property of the Church. Henry vin sold great parts of the confiscated Abbey lands to peers, courtiers, and merchants who resold much of it to smaller men.3 Syndicates of middle men of the commercial class bought the land to 3 George Macauley Trevelyan History of England 3rd ed. (Garden City, Doubleday &Co. 1953)2: 24-5,166-8

56 Hobbes and America speculate in as real estate. Through enclosure, the consolidation of land held in scattered strips into compact holdings, the gentry became free to switch from arable to pasture and to experiment with the rotation of crops.4 The increase in wealth of the gentry and the commercial class conferred upon them, in time, social distinction and political importance. For the views presented here, the most important consequence of the Henrician Reformation is that the middle class acquired political and economic power through the purchase and resale of Church lands and formed a vested interest in the Reformation. Other consequences of the Henrician Reformation were an increase in the power of the state, concurrently with an increase in its resources of property and patronage, and a decline in the power of the Church. The property and patronage of the Church passed into the hands of the reigning monarch. If the spiritual authority of the monarch was not enhanced, he at least stood forth more clearly as the symbol of national unity. Political allegiance which had previously been divided between Crown and Papacy was now totally concentrated in the Crown. Concomitantly with the increased power of the state, an attempt was made to strengthen the justices of the King's Bench. The Common Law dispensed by these justices further displaced the Manorial Law administered by the disintegrated territorial jurisdictions of the nobility.5 Also, with the active support of Parliament, the Common Law courts undertake the gradual absorption of the sphere of jurisdiction claimed by the Church courts.6 The real beneficiary of the developments set in motion by the Henrician Reformation was not the monarchy, however, but the middle class, who throughout the sixteenth and seventeenth centuries sought to augment their political and economic power and to promote reformation of the Anglican Church in accordance with Protestant forms of worship and church organization.7 The energy and enterprise of these classes was concentrated in the House of Commons, and along this avenue the controversial objectives of the middle class were sought with ultimate success. The Tudors, seeking a counterpoise to the landed no4 Christopher Hill The Century of Revolution (New York, W.W. Norton & Co. 1961) 17-18 and R.H. Tawney Religion and the Rise of Capitalism (New York, Mentor Books 1963) 118-28 5 Charles Howard Mcllwain Constitutionalism: Ancient and Modern rev. ed. (Ithaca, Cornell University Press 1947) 95-7 6 Hill Century of Revolution 78-80 7 Christopher Hill Puritanism and Revolution (New York, Schocken Books 1958) 32-49

57 The roots of American constitutionalism bility, had done their best to elevate the country gentry and the commercial class into political importance, and during the sixteenth century these classes had steadily improved their position. The gentry had been enriched by the practice of enclosure and the spoils of the monasteries, while the commercial class had profited by the growth of trade and expanding market opportunities in the New World.8 The Civil Wars in England (1642-6) were brought on by Charles i, who threatened to undo all these gains by discouraging enclosure, restoring High Church forms of religious worship, effecting a marriage alliance with the Catholic throne of France, and asserting a right of taxation without parliamentary supply.9 Charles i dissolved Parliament on numerous occasions following conflicts over ecclesiastical and financial policy. The overthrow of papal rule by Henry vin looked forward, therefore, to the rise of the Protestant middle class, the Civil Wars, and the execution of Charles i in 1649. Monarchs subsequent to Charles i exercised their powers of office on terms substantially defined by Parliament. Hobbes's preference for monarchical rule and his defense of the rights of the monarch in the Civil Wars have obscured the relation between his political philosophy and the goals sought by the revolutionary Protestant middle-class. In his Behemoth, published in 1682 and subtitled 'The History of the Causes of the Civil Wars of England and of the Counsels and Artifices By Which They Were Carried On/ Hobbes condemned the alliance between the Presbyterian divines and Independents, on the one hand, and the commercial classes and landed gentry, on the other; this alliance he held principally responsible for the revolt against the king. Hobbes defended the rights of the monarchy in the Behemoth, and in the Leviathan, published in 1651, he expressed a preference for monarchical rule. Granted these things, numerous considerations force one to the conclusion that Hobbes was, in the circumstances of seventeenth-century England, a spokesman for (though hardly an apostle of) the revolutionary goals of the commercial Protestants. First, the Royalists themselves correctly perceived that Hobbes's regard for the monarchy was not inspired by feudal ties, but by the consideration that the office of the monarchy provided an external framework of order within which the commercial interest of the middle class could be pursued.1 The wisdom of this perspective was later borne out 8 J.R. Tanner English Constitutional Conflicts of the Seventeenth Century (Cambridge, Cambridge University Press 1962) 59 9 Ibid. 51-67 1 See John Bowie Hobbes and His Critics (New York, Oxford University Press 1952) 166-7

58 Hobbes and America as the same alliance (with the exception of the Independents) which had conspired together to overthrow Charles i, brought about the restoration of Charles n. We need to note, in this connection, that John Locke provided a defense of the rights of monarchy on the restoration of Charles u to the throne in 1660, and that Hobbes and Locke were in agreement, at the time of the restoration, that the goals sought by the commercial Protestants could best be obtained through the office of the monarchy.2 Only later, in the Second Treatise of Government (1686) did Locke adjust his theory to the era of parliamentary supremacy brought in with the execution of Charles i and the restoration of Charles n. Hobbes, like Locke, did not defend the person of the monarch but the office he occupied. His opposition to the political objectives of the middle class is a disagreement on a matter of policy, not a substantive disagreement on the source and nature of public authority. The utilitarian considerations at the bottom of Hobbes's defense of the monarchy are made plain in the Behemoth: 'I consider the most part of rich subjects, that have made themselves so by craft and trade, as men that never look upon anything but their present profit; and who, to everything not lying in that way, are in a manner blind ... If they understood what virtue there is to preserve their wealth in obedience to their lawful sovereign, they would never have sided with Parliament; and so we had no need of arming.'3 Second, Hobbes sought to liberate a society imprisoned in the mold of classical constitutional tradition. He sought to clear away the doctrines of classical tradition which stood in the way of recognition of the individual as the sole source of right. Hobbes's insistence on the right of the individual is essential to the preservation of the claim of Protestantism, and of subsequent liberal tradition, that the individual has a right to seek salvation outside the state, by means other than the law of the state. This claim was revolutionary in the circumstances of seventeenthcentury England because it altered the social context within which the rights of the members of society were exercised. The State of Nature is the literary vehicle employed by Hobbes to advance the claims of modern egoism. The device requires the imagining away of constituted authority while retaining, in the mind's eye, the dominant characteristics of the political culture. Insofar as this exercise in imagination takes 2 See C.B. Macpherson Possessive Individualism (London, Oxford University Press 1962)260. 3 Thomas Hobbes Behemoth vol. 6 of The English Works of Thomas Hobbes collected and ed. by Sir William Molesworth (London, John Bohn 1966) 340

59 The roots of American constitutionalism away the presence of constituted authority, it reveals Hobbes's outlook that the legitimacy of classical political institutions had been abolished by the period of the Civil Wars. In Hobbes's estimate, the individual was freed contemporaneously from all law derived from classical 'higher' law and from feudal associations intermediate between the individual and the state, such as guild, manor, abbey, and episcopacy, which had previously served to interpret and apply 'higher law.' A visible demonstration of the absolute right of the individual to define and pursue his own standards of conscience and interest, independent of the restraints exerted by the interpreters of 'higher law,' had been made by the Presbyterian divines and members of Parliament during the Civil Wars. The claims of institutions sustained by 'higher law' and 'right reason' were liquidated by the claims of the rising Protestant middle class. Hobbes's rejection of classical political tradition is stated in terms of a disbelief in the potency of reason and in a determinate aim, or greatest good, for man; but the sovereign reason for his rejection of classicism is that its major doctrines stood in the way of recognition of the individual as the sole source of right. Hobbes rejected the cardinal assumptions of classical tradition that rights and duties, the good of the individual and the good of society, are harmonious and coincident. He deprived the sovereign of authority to seek to procure the salvation of the members of society through an ideal pattern of law. Hobbes sought to establish a philosophic presumption on behalf of an individual right to be a participant in the creation of public authority (as distinguished from a few 'higher natures') and he sought to show that political institutions are created for the benefit of the governed (as distinguished from the imposition of an ideal pattern of human existence).4 The authoritarian elements of classicism are rejected by Hobbes. He states that there is no such thing as 'right Reason constituted by Na4 The opinion that Hobbes originates and is the master of a distinctive tradition in political philosophy is shared by eminent scholars. This estimate rests on a distinction of which Hobbes was well aware - that whereas classical political philosophy begins with the rule of law and deduces all rights and obligations of the citizens from the law, the source of legitimate authority is the right of the individual. See Leo Strauss The Political Philosophy of Hobbes tr. by E. Sinclair (Chicago, University of Chicago Press, Phoenix Books 1952) 154-61, Thomas Hobbes Leviathan ed. and with an intro. by Michael Oakeshott (Oxford, Basil Blackwell 1957) lu, lui, Alexander Passerin D'Entreves Natural Law (New York, Harper & Row Publishers 1951) 59, Ernest Barker Greek Political Theory (New York, Barnes & Noble 1961) 42-6, Macpherson Possessive Individualism 72-9.

60 Hobbes and America ture.'5 The critical words employed by classical philosophers in speaking of the normative standards which order social relationships have a different signification according to the individual who is using them. Good and bad, right and wrong, justice and injustice, are not eternal verities, independent of the intelligences of particular men. These words are simply an index of the affections and dislikes of individuals.6 Reason is always the reason of a particular man, therefore, and there are as many opinions as to what constitutes 'right reason' as there are men. Unfortunately, the men who are most prone to appeal to 'right reason' are also those most likely to define the dictates of reason, according to their private advantage. They reveal 'their want of right Reason, by the claym they lay to it.'7 Men are justifiably suspicious of claims to political rule based on 'right reason,' knowing this is invariably an attempt to disguise private advantage in the furnishings of the public interest.8 Classical political tradition tended to confer political rule on gifted men, preferably philosophers, who sought to conform the life of society to an ideal pattern of individual and collective existence. It was considered that philosophers possessed a special increment of intellect and virtue and were, therefore, best suited to imposing an ideal pattern of law on a community. In accordance with the principle of distributive justice, the constitution of a political society sought to effect a reconciliation between the functional needs of the collectivity and the fulfillment of the individual. The constitution distributed to the members of society a range of opportunities to contribute their skills and talents to constructive social purpose. Through performing his appointed function (rule, prayer, defense, merchandising, tilling the soil), a member of society made an effective contribution to the good of the whole, which was identical with his own good. Thus, the design of the constitution, whether written or unwritten, whether given through the fixed norm of a philosopher-king or the action of a people in entering into a social compact, assisted each man in attaining a degree of virtue commensurate with his talents and capacities. The liberty and salvation of the members 5 Hobbes Leviathan 111. Quotations and citations are from C.B. Macpherson's edition of Leviathan ed. with an intro. by C.B. Macpherson (Baltimore, Md., Penguin Books 1968). 6 Ibid. 109: 'For one man calleth Wisdome, what another calleth feare-, and one cruelty, what another justice-, one prodigality, what another magnanimity-, and one gravity, what another stupidity, etc.' (italics in the original). 7 Ibid. 112 8 Ibid.

61 The roots of American constitutionalism of society consisted in obedience to a rule of law. The practical operation of this theory of society is described by Tawney: 'The facts of class status and inequality were rationalized in the Middle Ages by a functional theory of society ... Society, like the human body, is an organism composed of different members. Each member has its own function, prayer, or defense, or merchandise, or tilling the soil. Each must receive the means suited to its station, and must claim no more ... Peasants must not encroach on those above them. Lords must not despoil peasants. Craftsmen and merchants must receive what will maintain them in their calling and no more ... As a rule of social policy, the doctrine was at once repressive and protective.'9 Political institutions, in Hobbes's view, cannot and should not seek to impose an ideal pattern on the life of a man, simply because there is none.1 Most men are persuaded, and rightly so, that their choice of the ingredients of good living is optimal. Even if a wise man discovered an ideal pattern of life, it is doubtful that he could persuade other men to join him in pursuit of it.2 Hobbes suggests that in the absence of consensual support for political regimes seeking to impose an ideal pattern on a community, force will become a substitute: 'For there are very few so foolish, that had not rather governe themselves, than be governed by others; Nor when the wise in their own conceit, contend by force, with them who distrust their owne wisdome do they alwaies ... get the Victory.'3 The utmost that may be expected of political institutions is that they remove the obstacles which hinder men in the pursuit of the good life, as they, each and every one, have chosen to define this. The sovereign does this, first, by maintaining the conditions which preserve life itself and, second, by issuing such necessary regulations as will keep men from injuring themselves in their separate quests for the good things of life: 'The Office of the Soveraign, (be it a Monarch, or an Assembly,) consisteth in the end, for which he was trusted with the Sovereign Power, namely the procuration of the safety of the people ... But by Safety here, is not meant a bare Preservation, but also all other Contentments of life, which every man by lawfull Industry, without danger or hurt to the Common-wealth, shall acquire to himselfe ... For the use of the Lawes, (which are but Rules Authorised) is not to bind the People from all Voluntary actions; but to direct and keep them in such a motion, as 9 1 2 3

Tawney Religion and the Rise of Capitalism 27 Leviathan 160 Ibid. 211 Ibid.

62 Hobbes and America not to hurt themselves by their own impetuous desires ... as Hedges are set, not to stop Travellers, but to keep them in the way.74 Through these arguments Hobbes restricts the purpose of political institutions to the satisfaction of the mortal needs of mortal men and lays the foundations of the modern theory of government by consent of the governed. Henceforward, it is not the office of the sovereign (he does not have the authority) to seek the salvation of the members of society through an ideal pattern of law. It is the office of the sovereign chiefly to provide an external framework of order within which each of the members of society can pursue happiness (or salvation) as they choose to define this. The most important matters in living are reserved to the judgment of the individual. The liberties of the subject include 'the Liberty to buy, and sell, and otherwise contract with one another; to choose their own aboad, their own diet, their own trade of life, and institute their children as they themselves think fit; and the like.'5 The sovereign, who is an ordinary man, confines his legal activity to the externals of public behavior, never meddling in affairs of conscience and private belief.6 There are many areas of life on which the law will be silent, for the liberty of the subject consists in the silence of the laws.7 Third, and last, Hobbes replaces classical constitutional theory with a philosophy of constitutionalism appropriate to the temper of commercial Protestantism and the enthusiasms of a liberal-democratic people. A full treatment of Hobbes's constitutional theory will come in the next chapter, but the groundwork may be laid now. Hobbes's discussion of the state of nature advances the claims of modern egoism and recognizes the existence of a crisis of authority. He does not seek to promote social revolution through his discussion of the state of nature but to recognize that one has occurred. The State of Nature, we said above, is a literary device which involves imagining away the presence of constituted authority while retaining, before the mind's eye, dominant characteristics of the political culture. Insofar as this exercise in imagination takes away the presence of constituted authority, it embodies the appraisal that the successes of commercial Protestantism had put an end to the legitimacy of classical political institutions. Political institutions can no longer be founded on the authority of classical constitutional tradition. Inasmuch as this exercise in imagination requires a retention of the 4 5 6 7

Ibid. 376 and 388 Ibid. 264 Ibid. 332, 388 Ibid. 271

63 The roots of American constitutionalism dominant characteristics of the political culture, it embodies Hobbes's view that the dominant culture of England is Protestant-bourgeois. A philosophy of constitutionalism suited to the developing genius of the triumphant Protestant culture defines the task of modern political thought. A new philosophy of constitutionalism is needed, Hobbes believed, to resolve an internal crisis within the culture of Protestantism. The instabilities of Protestant culture generate its own crisis of authority. Hobbes seeks to resolve this crisis of authority while remaining faithful to the culture of Protestantism. The principal causes of war in the State of Nature (Competition, Glory, Diffidence) are obviously the product of the special enthusiasms of a Protestant-bourgeois society.8 The ultimate tendency of Protestantism is the exercise of a right of private judgment on all matters, sacred and profane. But the freedom to define one's own standards of conscience leads to the 'zealous maintaining of contravened doctrines,' and, therefore, to sharp interpersonal conflict. When the claim of private inspiration is added to the right of private judgment, the result is a state of extreme vanity and subjectivity, called by Hobbes 'Glory.' 9 The freedom to define and pursue one's own interest leads to a competitive scramble for the felicities of life. The life chances of every man were supposed to be equal before the laws of operation of a market economy. But 'Competition' between individuals goaded by the realization that the value of a man is his 'Price' produces an extraordinary amount of rivalry and insecurity.1 Men seek to allay their insecurity through a 'restlesse desire of Power after power,' but this serves only to intensify their anxieties.2 'Diffidence' makes men fight to protect themselves against those driven by Competition' and in search of *Glory.' The final tendency of Protestant-bourgeois culture, without the presence of constituted authority, is a chaotic conflict of private wills.3 The extraordinary energies of the Protestant middle class, Hobbes believed, issued from an absolute, subjective claim of the individual. There 8 Ibid. 185 9 Ibid. 141 1 Ibid. 151. For an excellent discussion of the relation between Hobbes's political theory and the concept of a possessive market society see Macpherson Possessive Individualism 41-6. An attempt to modify the analysis of Macpherson is made by Keith Thomas 'The Social Origins of Hobbes's Political Thought' in K. Brown (ed.) Hobbes Studies (Cambridge, Harvard University Press 1965) 185-236. 2 Ibid. 161 3 Ibid. 185

64 Hobbes and America was a substantial identity in the energies which animated the Presbyterian divine, exhorting his flock from the pulpit, and those which stimulated the private entrepreneur to exploit opportunities provided by a market economy: 'They [the ministers] did never in their sermons, or but lightly, inveigh against the lucrative vices of men of trade or handicraft; such as feigning, lying, cozening, hypocrisy ... which was agréât ease to the generality of citizens and the inhabitants of market towns, and no little profit to themselves.'4 In the Leviathan Hobbes transmuted the subjective claim of Protestantism into the doctrine of natural right. The concept of the merely energetic man became the fundamental premise of the introduction to Leviathan. Hobbes tells us in the introduction that man is a creative will whose capacities rival those of God. Nature, which is the 'art whereby God hath made and governes the universe,' is imitated by the art of man in the making of the state. The making of the state resembles the creation epic of Genesis: 'Lastly, the Pacts and Covenants by which the Parts of the Body Politique were first made, set together, and united, resemble the Fiat, or the Let us make man, pronounced by God in the Creation.' We should notice that Hobbes did not regard the goals sought by the commercial Protestants with an impartial eye. On balance, he appears far more sympathetic to the right of each man to the product of his labor than to his right to be sole authority on matters of faith. The explanation for this partiality to bourgeois morals lies in the fact that a rational theory of obligation may be deduced from the behavior of men in a market economy, whereas differences of opinion on religion may only be settled by authority. Hobbes identified the 'Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them.' 5 as a major inducement toward civil order. Obligation to a civil sovereign is rational and desirable to one whose personal freedom is a function of the relative equality of each man before the laws of the market. While conflict is produced by the acquired behavior of men in a market society, this condition generates its own solution, a sovereign who will maintain the relationships of possessive individualism.6 Therefore, Hobbes seems relatively cheerful about the known proclivities of the bourgeois for material goods.7 On the other hand, we find Hobbes taking a dim view of the Protestant 4 5 6 7

Behemoth 32-3 Leviathan 188 Ibid. 234. Also, see Macpherson Possessive Individualism 41. Ibid. 151-2,295, 376, 386

65 The roots of American constitutionalism doctrine that salvation is achieved solely through a personal act of faith. The consequence of this principle is that 'we are reduced to the Independency of the Primitive Christians to follow Paul, or Cephas, or Apollos, every man as he liketh best/ 8 This concept of salvation erodes authority in society and creates dangerous opportunities for the charismatic religious leader. Men seeking to escape from the freedom inflicted upon them by their faith will seek refuge in the deliverance promised them by religious leaders: 'When Christian men, take not their Christian Soveraign for God's Prophet; they must either take their owne Dreames ... or suffer themselves to bee led by some strange Prince.'9 Hobbes viewed the charismatic religious leader as either a charlatan, who finds divinity a useful pretence, or a man driven to madness by overweening ambition.1 Whichever it was, the charismatic leader and, indeed, all religious enthusiasts compete with the authority of the civil sovereign. For these reasons Hobbes is rather severe when he speaks of the Protestant tendency toward religious enthusiasm but expresses little disapproval of the commercial propensities and acquisitiveness encouraged by the same faith. Another reason why Hobbes has been misunderstood as the opponent of liberal democracy is that he did not, like Locke, flatter the self-image of the commercial Protestants, nor provide them with rhetoric assisting the political triumph of their particular causes. For Locke, the Whigs who had achieved status and wealth through rack rents, spoliation of the monasteries, and enclosure were 'the Industrious and the Rational/ 2 Natural law protected both inherited and acquired wealth and thus shielded the gains of the nouveau riche and the benefits flowing from the Henrician Reformation against 'the Quarrelsom and Contentious/ 3 The upper classes could take comfort in Locke's doctrine that the acquisition of wealth took place outside of the bounds of civil society and was unregulated by social compact, and that enclosure increased the general supply of wealth in society.4 The 'Quarrelsom and Contentious,' among whom the Leveller group was foremost, pressed for a climax to the Civil Wars. They demanded a redistribution of property, a shift in 8 9 1 2

Ibid. 711 Ibid. 469 Ibid. 141, 411 Second Treatise sect. 34. Quotations are from Peter Laslett's edition of the Two Treatises of Government, 3 Ibid, sects. 27, 73, and 34. See the discussion below in chapter 5. 4 Ibid, sects. 37, 50

66 Hobbes and America the burden of taxes, and an increase in freedom of religious worship. We shall later show that Locke's theory of government provides, for the most part, a negative reply to these demands. Hobbes is perpetually stripping away the mask from the culture of Protestantism, and this has won him the reputation of being an atheist and the opponent of the liberal-democratic faith. Hobbes's portrait of the commercial Protestants is less complimentary than Locke's but seems more nearly to fit the facts. He observes that the Protestant ministers appeared to regard violation of the third and seventh commandments alone - against adultery, carnal lusts, and vain swearing - as sins.5 Young men thought themselves damned because of the delight they took in imagining the naked bodies of young maidens. But the sermons betrayed a significant omission, for 'they did never ... or but lightly inveigh against the lucrative vices of men of trade or handicraft.' 6 As for the manner of their preaching, they so framed their countenance and gesture 'that no tragedian in the world could have acted the part of a right godly man better than these did.'7 Friendships in a commercial society are inauthentic, Hobbes says. If men meet on the street, 'it is plain that every man regards not his fellow, but his business; if to discharge some office, a certain market friendship is begotten which hath more jealousy in it than true love.'8 Professor Macpherson may be right when he says that the reason why Hobbes is disliked is that 'he knows too much about us.'9 He is surely the last to whom we would turn for a testimonial on the virtues of the middle class or the health of the liberal-democratic state. Yet it is clear that Hobbes's personal values overlap with the intense individualism of Protestantism. H O B B E S , L O C K E , AND THE ' G L O R I O U S R E V O L U T I O N ' ( 1 6 88)

At the outset, it may be objected that Hobbes does not adhere to a theory of revolution and is, therefore, irrelevant to the study of political institutions shaped by the revolutionary events of 1688 and 1776. Locke is commonly credited by scholars with having developed the theory of revolutionary change employed by the Whigs in the Glorious Revolution Hobbes Behemoth 33 Ibid. Ibid. 31 Thomas Hobbes De Cive: Or the Citizen ed.by Sterling Lamprecht (New York, Appleton-Century-Crofts 1949) 22 9 Brown Hobbes Studies 5 6 7 8

67 The roots of American constitutionalism of 1688 and by the American colonists in the revolution of 1776. Recent evidence has been provided that Locke composed the Second Treatise of Government before the succession of William, Prince of Orange, thereby giving Locke a role as principal in a revolutionary movement.1 Whatever the date of composition of the Second Treatise, Locke's political theory clearly fits the official Whig interpretation of events as embodied in two resolutions passed by the House of Commons in 1689. The substance of these resolutions was that as James n had, by a gross abuse of his power, violated the limits imposed on his authority by the social compact, the people had a right to vest the powers of his office in some other hereditary claimant and to impose on the new king such conditions as would secure the country against further misrule.2 American scholars have been profoundly influenced by the Whig interpretation of the Glorious Revolution. In their view, the American people are the beneficiaries of a progressive political tradition, originated by Locke and transmitted into American thought by Jefferson, Paine, Adams, and others.3 Jefferson employed Locke's verbiage and his political principles to draft the statement of revolutionary intent of the American colonists. The particular instances of wrongdoing, enumerated in the Declaration of Independence had the object of showing that the king had broken the social compact and furnished the colonists with a right of revolution. The principles of the Social Compact, originated by Locke and transmitted into American political tradition by the Founding Fathers, are reinterpreted for future generations of Americans by the judiciary. American scholars are prone to claim that this historical tradition ensures that our political institutions will set a course of progressive rule. Since the weight of scholarly interpretation finds that American constitutionalism is shaped by a revolutionary tradition originated by John Locke, a critical task of this chapter will be to develop an historical framework within which the contribution of Hobbes to American political tradition may be perceived and his credentials as a revolutionary political thicker authenticated. If we can establish that the Glorious 1 See the remarks by Peter Laslett in Locke Two Treatises of Government 78-9. 2 Tanner English Constitutional Conflicts 265 3 Clinton Rossiter The Political Tradition of the American Revolution (New York, Harcourt, Brace 1963) 135-46, Andrew C. McLaughlin The Foundations of American Constitutionalism (Greenwich, Conn., Fawcett Publications 1961) 107-28, Arthur N. Holcombe The Constitutional System (Glenview, 111., Scott Foresman & Co. 1964) 4-9

68 Hobbes and America Revolution and the American revolution are revolutions in name only and, further, that Locke does not possess a theory of revolutionary change, and, finally, that Locke's view of the source, nature, and limits of public authority is, in all important respects, identical with that of Hobbes, then we shall have greatly strengthened the main thesis that the philosophy of liberal-democratic constitutionalism employed in America is the product of a revolutionary movement in political thought originated by Hobbes. If we undertake the study of Hobbes's relation to the 'revolutionary' events of 1688 and 1776, and most particularly to the theory of revolution of John Locke, an interesting paradox arises. Hobbes has a greater claim than Locke to be considered as a revolutionary political thinker because he justified the liberation of a society imprisoned in the mold of classical constitutional tradition. Locke, on the other hand, did not clearly see the conflict between his teaching and the natural law tradition.4 The revolutionary character of Locke's thought is most often, though quite mistakenly, considered to lie in his arguments justifying the overthrow of James n as monarch of England. Locke is not a revolutionary political thinker on these grounds because the overthrow of James n merely involved a change in the heads of government, not in the principles on which government was constituted. The revolutionary character of Locke's thought truly consists in his politic dissemination of the modern philosophy of constitutionalism provided by Hobbes. But Hobbes, then, emerges as the authentic revolutionary figure. Scholars have not grasped these relationships, I would suggest, because of Hobbes's notoriety and the complexity of his real argument. Let us attempt to provide support for these reflections. Historical interpretation of the revolution of 1688 must first reckon with the fact that Locke is, in essence, a controversialist, not a political philosopher. The Second Treatise is a work of political theory, that is, a work written in the idiom of general ideas to defend particular doctrines concerning the merits of enclosure, the status of inherited wealth, the proper location of sovereignty, and so on.5 Although the Second Treatise 4 The view that Locke used the language of natural law tradition, ingenuously, to extend and promote the dominant interests of commercial Protestants in English society in the seventeenth century is supported, in part, in the pages immediately following and, again, at greater length in the discussion of Locke's views on property at a later point in this volume. 5 For the distinction between works of political theory and works of political philosophy see J.B. Sanderson 'The Historian and "Masters" of Political Thought' Political Studies 16 (February 1968): 43-54.

69 The roots of American constitutionalism succeeds in appealing to the prejudices of Locke's audience, indeed because of Locke's skill in this endeavor, the work fails to provide a general theory of revolutionary change in English society, or, for that matter, a developed theory of the state. By contrast, Hobbes did not, like Locke, flatter the self-image of the commercial Protestants, nor provide them with doctrines assisting the triumph of particular causes. Of far greater significance, Hobbes provided a philosophy of constitutionalism fully consistent with the thrust of the Puritan revolution. This achievement has not been appreciated because, in good part, Hobbes is a political philosopher, not a controversialist, and his relation to the revolutions in England in 1642-6 and 1688 (and in America in the eighteenth century) remains obscure to historians accustomed to interpreting these events according to the tracts of the times. If the study of slogans has dominated the investigation of scholars into the liberal-democratic revolutions in England and America in the seventeenth and eighteenth centuries, it is due primarily to the fact that scholars have consulted Locke for their understanding of the 'revolutionary' changes which occurred. As a political controversialist, Locke occupied a delicate role. On the one hand, he articulated propositions in dispute between the rising Protestant middle class and the church and nobility concerning the social functions of property and labor.6 On the other hand, against the radical-democrats he used the arguments for the rights of inheritance and the legitimacy of existing political institutions to defend the gains made by the middle class against social criticism. Against the church and nobility, which had insisted broadly on the social responsibilities of the ownership of property, Locke professed the views of possessive individualism, the right of each man to be the sole owner of his talents and energies, owing nothing to society for them.7 Locke defended the appropriation and enclosure of land for intensive farming and investment which produced depopulation of the countryside during the sixteenth and seventeenth centuries. He assumed that the introduction of money engendered markets for the produce of land heretofore valueless. This made speculation in land hitherto not worth appropriating a reasonable and justifiable venture.8 Commercial men and the gentry could take comfort in Locke's doctrine that the accumulation of money is not 6 Tawney Religion and the Rise of Capitalism 152 7 Macpherson Possessive Individualism 258 8 Locke Second Treatise sects. 37, 45, 48. See the discussion by Macpherson Possessive Individualism 211-14.

70 Hobbes and America regulated by social compact.9 In sum, Locke justified the vested interest of the middle class in the Henrician Reformation and the mears which they had employed to improve upon their holdings at the expense of the landed nobility and against the teachings of the Church of England. Against the radical democrats, Locke defended the rights of inheritance and the legitimacy of existing political institutions. Locke placated the propertied classes among the Whigs by arguing for both an inherited and a natural right to property.1 The acceptance of an inheritance, Locke states, constitutes a tacit consent to existing political institutions.2 It is apparent that Locke believed that ownership of property, no less than social compact, brings men into civil society.3 That the social compact assumes substantial social inequities will be demonstrated at a later stage in this volume. The people who sustain political institutions in Lockean society are not of the variety found in the Leveller movement.4 The Levellers were the small freeholders and tradesmen who sought an enlarged sphere of political and religious liberty, a redistribution of the land of the gentry and nobility, and a shift in the burden of excise taxes and land taxes from the yeomen to the landed gentry.5 One infers from Locke's chapter 'Of Property' that the people who sustain political institutions are the landed gentry, owners of enclosed land with several servants, a horse, apple orchards, and an ore mine, or wealthy commercial men. These people had been served well by parliamentary institutions throughout the sixteenth and seventeenth centuries, and it is apparent that Locke wished to maintain the protection of the property and privileges of the middle class through a supreme legislative assembly.6 Like Hobbes, Locke tends to confer legitimacy on existing political institutions. Locke maintains in several places that a dissolution of the office of the legislature or of the executive causes a return to the state of nature and a chaotic conflict of private wills.7 Political society never 9 1 2 3 4 5 6 7

Second Treatise sect. 50 Ibid, sects. 27, 72 Ibid, sects. 73, 117 See Sheldon Wolin Politics and Vision: Continuity and Innovation in Western Political Thought (Boston, Little, Brown & Co. 1960) 310-11 and John Plamenatz Man and Society (New York, McGraw Hill Book Co. 1963) 1: 230. G.H. Guttridge English Whiggism and the American Revolution (London, Cambridge University Press 1966) 12 Macpherson Possessive Individualism 156 and Eduard Bernstein Cromwell and Communism (New York, Schocken Books 1963) 87-9 Guttridge English Whiggism and the American Revolution 6-7, Hill Puritanism and Revolution 307-8 Locke Second Treatise sects. 212, 219, 227

71 The roots of American constitutionalism acts in its sovereign capacity except for the purpose of instituting a government, for *in all Cases, whilst the Government subsists, the Legislative is the Supream Power.'8 As in Hobbes's view, the people exercise sovereign power only once, and for an instant of time, for 'this Power of the People can never take place till the Government be dissolved/9 Locke's exaltation of the legislative power compares with Hobbes's defense of the monarchical office. As we have said before, the consideration which moved Hobbes to defend the monarchy was that the office provided an external framework of order within which the commercial interest of the middle class could be pursued. He argued, as unobtrusively as possible, that the substantive goals sought by the middle class could be obtained through the retention of the office of the monarchy. As a political prescription, Hobbes's argument was suited to an era of monarchical supremacy. But the era of parliamentary supremacy, brought in with the execution of Charles i and the restoration of Charles ii, required a different political solution. Locke advances the new view that the protection of the property and privileges of the middle class will be maintained by a supreme legislative assembly, with the cooperation of the monarchical office if possible, but without it if necessary. This view is borne out by the so-called revolution of 1688. The leaders of the Tory and Whig parties, believing that a Catholic monarch threatened the vested interest in the protestant Reformation, joined in an alliance to overthrow the ruling monarch, James n, and to invite William, Prince of Orange, a Protestant, to take on the powers of monarchical office. The revolution was a palace revolution in which the king himself, by vacating his throne, assisted in his own overthrow. The revolution did not involve or seek to conciliate popular demands for a greater sphere of political and religious liberty and a redistribution of property. The notion that the people had a hand in events was a gloss subsequently provided by the Whig parliamentary leadership.1 Indeed, in some respects the overthrow of the king had the appearance of a counter-revolutionary movement since it prevented, for the moment, a greater degree of religious liberty for the sects.2 Seeking to forge an alliance against his parliamentary opposition, James n had used royal patronage to put Roman Catholics and sectarians in political, academic, and ecclesiastical office and had proclaimed a Declaration of Indulgence 8 9 1 2

Ibid. sect. 150 Ibid. sect. 149 Tanner English Constitutional Conflicts 265 Ibid. 256, 267. Also, see Arthur E. Sutherland Constitutionalism in America (New York, Blaisdell 1965) 104-8.

72 Hobbes and America by which the Crown proposed to stop persecution of the sectarians and Catholics. Organized opposition to these measures arose in Parliament. The only principles clearly upheld by the overthrow of James n were parliamentary supremacy and a Protestant succession, but these principles, as put forward by Locke and by the Whigs, were far from revolutionary. The conclusion sustained by this analysis is that the revolution of 1688 was not, in fact, a revolution at all. First, it was not a social revolution because Lockean liberalism, both in the seventeenth century and subsequently, was fully as much a defense against radical democracy as an attack on traditionalism.3 While Locke might appear socially progressive in relation to the squirearchy and the beneficed country clergy of the Tory party, he does not appear in this light in relation to the small freeholders and tradesmen who composed the Leveller and Digger parties. The Whig party, which Locke was closely associated with through his friendship with its leader, Shaftesbury, occupied a position on the social questions of the day roughly intermediate between the Tories and the radical democrats. Second, the revolution of 1688 was not a political revolution because it merely proposed a change in the heads of government, not in the principles on which government was constituted. Neither parliamentary supremacy nor a Protestant succession could be interpreted as introducing novel principles of authority in society. THE A M E R I C A N 'R E V O L U T Í O N ' (1 7 7 6)

Current interpretations of the American revolution of 1776 stress that it fails to qualify as a revolution on grounds similar to those identified above. First of all, it was not a social revolution because no social change occurred. America skipped the feudal stage of history and hence had no social and economic inheritance to liquidate. Revisionist historians such as Hartz, McDonald, and Brown4 have replaced the Beardian notion of 3 Wolin Politics and Vision 293-4. Revisionist historical interpretations of the Glorious Revolution have made this point especially clear. Angus Mclnnes states that it was 'set in train to ensure the dominance and to foster the influence of a propertied and a privileged minority.' See Angus Mclnnes 'The Revolution and the People' in Britain after the Glorious Revolution ed.by G. Holmes (New York, St Martin's Press 1969) 81. 4 See Louis Hartz The Liberal Tradition in America (New York, Harcourt, Brace & World 1955) 20, 29, Forrest McDonald We the People (Chicago, University of Chicago Press, Phoenix Books 1958), 355, 398, Robert E. Brown Charles Beard

73 The roots of American constitutionalism class conflict with de Toqueville's famous observation on American equality: 'The great advantage of the Americans is that they have arrived at a state of democracy without having to endure a democratic revolution, and that they are born equal instead of becoming so.'5 Crane Brinton confirms this general analysis in his comparative study of revolutionary movements. He points out that the absence of a 'social and class movement' culminating in a Victory of the extremists' distinguishes the American revolution from the English revolution (1640-60), the French revolution (1789), or the Russian revolution (1917).6 Secondly, the revolution was not a political revolution because it merely proposed a change in the heads of government, not in the principles on which government was constituted. The Declaration of Independence does not set forward novel rights or principles of government, but seeks to preserve existing rights against an unpopular monarch.7 In many ways the declaration is a succinct restatement of the principles of the Whig rebellion of 1688. Boorstin suggests that the formula which is most suitable for the events which actually transpired is that it was a 'conservative colonial rebellion.'8 If the formula of rebellion is adopted, the revolutionary events of 1688 and 1776 may be brought within the ambit of Hobbes's political philosophy. Hobbes states that a subject has a right to resist a sovereign who threatens to deprive him of life 'or the means of so preserving life, as not to be weary of it.' 9 Once resistance is undertaken, the subject has the right to insure its success through alliance with others.1 Although Hobbes does not say that the right of resistance includes the right to overthrow the sovereign, we have found that neither, for that matter,

5 6 7 8 9 1

and the Constitution (Princeton, Princeton University Press 1956), and Carl Becker Freedom and Responsibility in the American Way of Life (New York Random House, Vintage Books 1955) 20. Alexis de Toqueville Democracy in America ed. by Phillips Bradley (New York, Random House, Vintage Books 1954) 2: 108 Crane Brinton The Anatomy of Revolution (New York, Random House, Vintage Books 1965)24, 100, 190 See Guttridge English Whiggism and the American Revolution 142-3 and Edmund Burke An Appeal from the New to the Old Whigs ed. by J. Robson (New York, Bobbs Merrill Co. 1962) 39. Daniel Boorstin The Genius of American Politics (Chicago, University of Chicago Press, Phoenix Books 1953) 70 Hobbes Leviathan 192 Ibid. 270

74 Hobbes and America does Locke. The consequence of a multitude of individual acts of resistance is surely the dissolution of the government. It seems safe to say that for both Hobbes and Locke a popular rebellion launched against a sovereign who has deprived his subjects of security in the enjoyment of certain essential rights is self-legitimating. But the character of such a rebellion is obviously against the initiation of social change, or the introduction of novel principles of authority into society. It seeks rather to restore the status quo ante. Such a theory of rebellion appears to conform to the events which actually transpired in 1688 and 1776. CONCLUSION The outcome of these reflections is that while Hobbes and Locke together adhere to a theory of rebellion, Hobbes alone possesses a theory of revolutionary change in society. The revolutionary character of Hobbes's thought consists in his proposal to liberate a society constrained by the forms of classical constitutional tradition. The defense of a right of rebellion becomes the stock in trade of every political pamphleteer in the seventeenth and eighteenth centuries and belongs to the dissemination of liberal-democratic ideas in society. This suggests that the true significance of the events of 1688 and 1776, and of the political theory of John Locke, is simply the propagation and popularization of the modern philosophy of constitutionalism provided by Hobbes. Hobbes is differentiated from these later champions of the liberal-democratic idea because he alone proposed to introduce novel principles of authority into society. These reflections, therefore, affirm the main thesis that American constitutional tradition is the product of a revolutionary movement in political thought whose directions and nature are embodied in Hobbes's major works and that Hobbes, not Locke, is the parent source of American constitutional philosophy.

4

Liberal democracy and conflict-management

At this point, the historical case for viewing Hobbes as the fountain-head of liberal thought is put to rest, and I shall seek to provide a philosophical basis for the view that Hobbes is the source of a new theory of constitutionalism - conflict-management - suited to the enthusiasm of a liberal-democratic people. For Hobbes, and his successors in the liberaldemocratic tradition, Locke, Madison, and Dahl, conflict-management becomes a controlling principle, displacing classical and popular sovereignty constitutional ideas. The 'operative realities' of American politics, it will be shown are already implicit in the structural features of Hobbesian political order. The entire phenomenal world of American politics, propensities toward violence, unattended social problems, and petty corruption, are lit up in garish and striking colors in Hobbes's writing. Hobbes did not flatter the self-image of the commercial Protestants, as did Locke, and his portrait gains in fidelity because it is less kind. In sum, this chapter shows that Hobbes provides the most satisfactory exposition of the theory which guides the practice of American politics and shapes the contours of the American political experience. The case for viewing Hobbes as a liberal democrat will be made on these grounds. First, Hobbes is a liberal because he traces the source of government to the consent of the governed, taken one by one. Second, he is a democrat because he asserts that men are equal and have equal rights in the covenant relationship. Third, his doctrines of inalienable rights and a right of resistance show that the sovereign must uphold, not invade, the rights of bourgeois men. Fourth, Hobbes's political thought creates political institutions conforming to the pattern and purpose of politics in a liberal democracy. These arguments, here presented at the level of mere assertion, will be more fully developed in what follows.

76 Hobbes and America Let us begin with the claim that Hobbes is a liberal democrat. Hobbes is a liberal because he traces the source of the government to the consent of the governed, taken one by one.1 Hobbes believed that men, by virtue of their humanity and uniqueness, were individually entitled to be consulted on the terms on which authority would be constituted in society. No philosopher before Hobbes, and one is tempted to say none since, has so emphatically established the individual as the sole source of right. Insofar as Hobbes successfully establishes a presumption in behalf of an individual right to be a participant in the creation of public authority (as distinguished from a few 'higher' natures), and insofar as he traces the source of this right to the nature of the individual, who is an absolute will, not limited by any normative standard or determinate end (as distinguished from the imposition of an ideal pattern on human existence), he stated something which allies him with future generations,2 and supports the view that he is the parent of a new tradition in political thought. Hobbes lays the foundation for the development of liberal democracy because he asserts, with an emphasis that was to endure through two centuries at least, that men are fundamentally equal and have equal rights in the covenant relationship. Hobbes stated that no man had a right to reserve rights in the covenant relationship, more than another man, on the presumption of his superiority in intellect, virtue, or wealth.3 All men everywhere, Hobbes says, are pretty much the same.4 There is no better argument for the equality of intelligence among men than that each man is contented with his share.5 If a man considers that he has special qualifications for political rule because of his virtue, wisdom, or strength, he should, nevertheless, not neglect to obtain the 1 M. Oakeshott remarks that 'His [Hobbes's] theory [of consent] has some claim to be regarded as the only one sufficiently individualistic to make "consent" something more than mere hyperbole.' As noted in Thomas Hobbes Leviathan (Oxford, Basil Blackwell 1957) Ix. 2 Some of the moderns allied with Hobbes cover a broad spectrum of fields - psychiatry, existentialism, utilitarianism, and anarchism. A few of the more influential figures are Thomas Szasz The Second Sin (New York, Doubleday & Co., Anchor Books 1974), Robert Paul Wolff/» Defense of Anarchism (New York, Harper & Row 1970), Albert Camus The Rebel (New York, Random House, Vintage Books 1956), and John Rawls A Theory of Justice (Cambridge, Mass., Harvard University Press 1971). 3 Hobbes Leviathan 211-12 4 Ibid. 183 5 Ibid. 183-4

77 Liberal democracy and conflict-management consent of other men before attempting to exert political sway.6 All men are vulnerable and one man, even a ruler, is as easily killed as the next. Even if men are not equal, Hobbes states, they ought to consider themselves so, since to maintain otherwise is to produce conflict.7 Since the authority of the sovereign is derived in an equal degree from all the parties of the covenant, the sovereign must provide the members of society, rich and poor, smart and stupid, equal treatment before the law.8 In the apportionment of taxes and in conscripting subjects for military service, the sovereign will take care to distribute burdens equitably.9 Unlike many of the subsequent exponents of liberalism, Hobbes is entirely unapologetic about the value of personally defined goals. He does not seek to reconcile individual acts of self-aggandizement with the public good, nor does he discuss the contribution of society, or Interestgroups' in society, toward the definition of personality and its goals.1 Despite these omissions, it is clear that this individualism is the thoroughly modern element in Hobbes and the respect in which he most heavily influenced the temper of subsequent political thought.2 After Hobbes, it becomes a commonplace to consider self-interest as the dominant motive in politics. Enlightened self-interest is viewed as the proper remedy for social ills. This bias of the liberal tradition was created and ably defended by Hobbes. He demonstrated that men were constituted in terms of temperament, biography, and intelligence to identify the good for themselves in radically different ways. Self-interest is evidence of discrete personality rather than a moral defect. In the absence of a public good separate from and superior to the private goods of individual men, a merely policing sovereign provides adequate governance. The term independently situated political actor conveys the thrust of Hobbes's outlook on the sources of political behavior. Liberalism's stress on a doctrine of inalienable rights and a right of resistance receives its most satisfactory expression in Hobbes's political 6 Ibid. 7 8 9 1

Ibid. 210-11 Ibid. 385 Ibid. 385-7 An exception to this statement is Hobbes's description of the part 'interestgroups' played in bringing on the Civil Wars. His analysis anticipates the stress of modern liberalism on the impact of social groups in shaping the values of the members of society. See Thomas Hobbes Behemoth vol. 6 of The English Works of Thomas Hobbes collected and ed. by Sir William Molesworth (London, John Bohn 1966) 5-7. 2 G. Sabine A History of Political Thought (New York, Henry Holt 1956) 475

78 Hobbes and America philosophy. Strictly speaking, the doctrine of inalienable rights signifies those rights which cannot by covenant be alienated to a sovereign. Therefore, a discussion of this topic must take place in the context of a discussion of the nature, provisions, and objectives of the covenant relation. A crucial matter to consider in this regard is the content of those rights not alienated in the covenant relationship and which when invaded by the sovereign furnish the subject with a right of resistance. Ordinarily, Hobbes has been understood to have restricted the content of these inalienable rights to life, meaning solely the physical life of the individual. A more careful reading of Hobbes shows that the inalienable rights protected by the covenant include a right to material property. In the discussion which follows I shall attempt to show that Hobbes develops a theory of inalienable rights, that the rights protected by the covenant include a right to material property as well as to life, and that Hobbes justifies resistance to a sovereign who infringes the inalienable rights of bourgeois men to life and property. Although Locke is commonly credited with having set forward the orthodox view of liberalism on the status of property in society, there is good reason to think that these conventional assessments are in error. If Hobbes is shown to have adhered to the theory of inalienable rights set forward above, then he has a better claim than Locke to be considered the parent source of the liberal tradition. The circumstances which create a disposition on the part of commercial Protestants to enter into the covenant relationship are as follows. The individual's assertion of an absolute right of self-rule leads to a paradoxical situation in which he lacks security in the possession of any rights. In the state of nature the hand of every man is against every other man. A man is in perpetual anxiety about his exposure to attack and death.3 His desire for safety will lead him to accept a limitation of his natural liberty in order to obtain the minimum condition of happiness, freedom from the fear of slaughter. This man, M, will venture so far as to surrender his right of self-rule to x, the civil sovereign, so long as Y promises to do the same. The covenant achieves the condition of peace aimed at because it divests Y of the power to inflict harm on M without reprisal by x, the civil sovereign.4 More generally stated, the covenant achieves the minimum conditions of peace because it provides the subjects with safety in the possession of essential rights. 3 Ibid. 186. A study of the moral basis of the covenant is provided by Leo Strauss The Political Philosophy of Hobbes, tr. by E. Sinclair (Chicago, University of Chicago Press, Phoenix Books 1952) 6-29. 4 Ibid. 192-6

79 Liberal democracy and conflict-management The voluntary agreement to transfer our natural right to x through the covenant gives x authority to rule over us. The authority of x is measured by the right surrendered; it is coextensive with the right surrendered.5 Since the individual cannot really transfer his right, he must promise to respect the conditions of the covenant.6 x has the right to take any action, not contrary to the covenant, which may operate on any and therefore all parties to the covenant. For our part, we recognize x as the person authorized to maintain the covenant by issuing rules backed by sanctions.7 The civil sovereign's right of rule is an artificial right, created by covenant. His right of rule does not lie in any power, capacity, or virtue which he possesses in his natural aspect, but merely on account of his occupancy of the office created by covenant. The terms of the covenant impose several limitations on the authority of the sovereign. First of all, the transference of right to the sovereign is conveyed by way of covenant. A covenant is a form of contract. It differs from a contract in the respect that it requires a present transfer of a right without the delivery of the thing. In a contract of the ordinary sort the thing is delivered at the same time that the right is transferred. Or we may transfer title binding ourselves to deliver the thing at a future date.8 But Hobbes states that the transference of right to the sovereign is not like the transference of property, goods, or cash, whereby we give up the thing presently and for all time, or bind ourselves presently to deliver at a specific future time. We cannot relinquish our will itself to the sovereign. We can only promise to maintain a certain state of will toward the sovereign. The state of will we are obliged to maintain is a willingness to perform the covenant. We will not interpose our will against the 5 Ibid. 190-1. In Hobbes's theory civil society is constituted in two stages: (1) in which individuals covenant each with one another to accept as sovereign that person or persons designated by a majority, (2) the designation by the majority of the future sovereign. In some sense, then, Hobbes is an advocate of 'popular sovereignty' in accordance with the principle that whosoever has the power to dispose of sovereignty is the true sovereign. Hobbes guards against this conclusion by observing that (1) the covenant obliges each man to all the others, not to a majority, and (2) there is a distinct obligation to the sovereign acknowledged by every man. The people are, therefore, sovereign only once, and for an instant of time. 6 See the remarks of Michael Oakeshott in Thomas Hobbes Leviathan ed. with an intro. by Michael Oakeshott (Oxford, Basil Blackwell 1957) xxxviii, Ivii. 7 Hobbes Leviathan 218 8 Ibid. See the discussion of Contract and Covenant 193-5.

80 Hobbes and America will of the sovereign, or of other parties to the covenant, insofar as we are afforded security in the enjoyment of essential rights. Hobbes's purpose in designating 'covenant' as the form by which transfer of right occurs is to give the subject a right to judge when the conditions of safety of performance are fulfilled: 'There is difference, between transferring of Right to the Thing; and transferring, or tradition, that is, delivery of the Thing it selfe. For the Thing may be delivered together with the Translation of the Right; as in buying and selling with ready mony ; or exchange of goods or lands: and it may be delivered sometime after.'9 Secondly, the covenant shows that the subject performs on condition, and that the judgment of when the conditions are satisfactorily fulfilled belongs to the subject, not to the sovereign. The individual performs in the covenant relationship (1) to the extent that other parties to the covenant do, (2) to the extent that the sovereign is able to provide the subject with safety in performance.1 The first of these conditions limits the capacity of the sovereign to fulfill the requirements of the second and so justifies the subject in reserving rights against the sovereign.2 Hobbes wished to show that in most cases the safety of the individual lay in obedience to the sovereign. Nevertheless, he gives numerous examples which affirm the right of the individual to judge when the condition of safety of performance is fulfilled. Since the covenant is a transfer of right, contingent upon safety of performance, we may, consistently with the covenant, prefer our private need to public order, in cases of conflict. For example, a subject who throws down his arms and flies from the field of battle may perform an act of cowardice, but not of injustice.3 A criminal who resists punishment does not perform any 9 Ibid. 193 (italics mine). The concept of covenant appears to be appropriate to those occasions where it is difficult to stipulate the conditions under which performance is required. The concept of contract is more suited to market relationships where the thing transferred is susceptible to definition in terms of time, amount, and properties. Hobbes states that the meaning of contract and covenant converges in 'buying and selling' where the thing is to be delivered at a future time. See ibid. 195. 1 The propensity of the covenanting parties to 'take the law back into their own hands' has called out the suggestion from Michael Oakeshott that the covenant is undertaken by men sufficiently magnanimous to bear the cost of being bilked (Michael Oakeshott Rationalism in Politics [New York, Basic Books 1962] 298300). 2 Hobbes Leviathan 192, 262, 272 3 Ibid. 720

81 Liberal democracy and conflict-management new injustice.4 Rebels who collaborate for their own defence do not perform any new injustice.5 The obligation of subjects to their sovereign is taken away if, when they are threatened, he is powerless to protect them.6 A subject is not obliged to give evidence against himself, except where he has been provided with assurance of pardon.7 Third, the obligations assumed by the subject under the terms of the covenant are negatively expressed. The ideal arrangement for Hobbes's subject, which the form of the covenant relation tends to preserve, is for all parties to incur its obligations, excepting himself, leaving him free to prey on all others from outside the law. The form of the covenant tends to promote the search for escape clauses rather than grounds for additional obligation. Some of these escape clauses are made plain by Hobbes. We are not bound not to resist the sovereign when he uses the power of the sword against our person (as distinguished from threatening its use). Nor are we bound not to influence the actions of the sovereign when we can and it is to our advantage to do so even by means which are questionable. A subject who seeks to bribe a legislative assembly does not perform an injustice unless it is specifically prohibited by law.8 Hobbes declares that the subject is obliged at least to the extent of payment of taxes and military service.9 Yet the case of the recalcitrant soldier strikingly illustrates that the subject is perpetually engaged in recalculating the advantages against the costs of performance of the covenant.1 The form of the covenant encourages deliberation along these lines, always preserving the possibility that the individual will return to a life of lonely violence. Propensities toward violence and a tendency to petty corruption are thus evident in Hobbes's discussion of the minimal obligations which the covenant imposes. To provide legal protection for the subject too dull to take adequate precaution in the covenant, Hobbes adheres to a theory of 'inalienable rights,' namely rights which no man could be understood as having transferred even if by words, signs, or acts he indicated that this was his wish.2 Hobbes does not announce this doctrine with propagandistic fan4 Ibid. 5 6 7 8 9 1 2

Ibid. Ibid. 272 Ibid. 269 Ibid. 287 Ibid. 197 Ibid. 270 Ibid. 192. Hobbes's marginal note expressly states 'Not all rights are inalienable.'

82 Hobbes and America fare but presents it as a precaution which a man of ordinary intelligence would take in the transactional relations through which public authority is constituted. As already mentioned, ordinarily Hobbes is understood to have afforded protection to physical life alone in the doctrine of inalienable rights. Here I wish to maintain that Hobbes's view on the rights protected by the covenant is multi-faceted, pointing to the existence of an inalienable right to property in addition to an inalienable right to life. The seeds of Locke's theory of an inalienable right to material property are present in Hobbes's discussion of rights not alienated by covenant. Hobbes states that the object of the covenant is not merely '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.' 3 Summarizing his theory of inalienable rights, Hobbes says that it embraces 'all things without which a man cannot live, or not live well.'4 Among the passions which inspire men to enter into the covenant Hobbes lists alongside fear of death a 'Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them.' 5 Hobbes states that it is the responsibility of the sovereign to procure the safety of the people. But by 'safety' is not meant a 'bare Preservation' but also 'all other Contentments of life, which every man by lawfull Industry ... shall acquire to himselfe.'6 If the sovereign makes an original distribution of lands, he shall take care not to offend against accepted notions of equity in property: 'And consequently, whatsoever Distribution he shall make in prejudice thereof, is contrary to the will of every subject, that committed his Peace, and safety to his discretion, and conscience; and therefore by the will of every one of them, is to be reputed voyd.'7 These passages stand in marked contrast to the narrow definition of inalienable rights commonly attributed to Hobbes. It seems clear that an inalienable right to material possessions, as well as to life, is defended by Hobbes, and that Locke's doctrine of an inalienable right to material possessions alone should be construed as a narrowing of the position of Hobbes. Hobbes's views on property are more complex than Locke's, a reason perhaps why they have been neglected by scholars solely attentive to the tracts of the times. He seems to have held that 'property' is a subjective concept, depending on the ordering of individual intelligences, 3 Ibid.

4 5 6 7

Ibid. 212 Ibid. 188 Ibid. 376 Ibid. 297

83 Liberal democracy and conflict-management and he would agree with the view of Madison that government is 'instituted to protect property of every sort.'8 Hobbes lists those things in which a man may be supposed to have a strong sense of property in rank order: *Of those things held in propriety, those that are dearest to a man are his own life and limbs; and in the next degree (in most men) those that concern conjugall affection ; and after them riches and means of living.'9 With Locke the sense of property is narrowed in chapter 5 of the Second Treatise to money and landed wealth and to one's self, but only insofar as the self toils and produces commercial property. Missing from the Second Treatise is a concern for property in religious opinions, not overlooked by Madison, and Hobbes's stress on property in life and in marital relations.1 The extraordinary position of Locke can be grasped through supposing that material property has become invested with life and commands the highest place in the scale of human values. One reading of Locke suggests that life is an alienable right which can be contracted away to the sovereign, whereas property in cash, skills, and land is an inalienable right protected by the covenant. Evidence that Locke reached this grotesque conclusion is furnished by his assertion that the sovereign can command a man 'to march up to the mouth of a Cannon ... where he is almost sure to perish.' But he cannot command the same man 'to give him one penny of his Money.'2 To conclude this discussion, both Hobbes and Locke defend the absolute rights of property and both justify resistance to a sovereign who infringes against those things in which a man has an especially keen sense of property. But the things in which property is most emphatically defended differ in Hobbes and Locke according to their personal tastes and general orientation within the Protestant culture. As will be seen, Locke wrote in an era when the commercial enthusiasms of Protestant8 Madison states that a man may have property in numerous things, not only in 'land, or merchandize, or money,' but also, and perhaps especially, in 'the free use of his faculties ... in his religious opinions ... and in the safety and liberty of his person' (The Forging of American Federalism ed.by Saul Padover [New York, Harper & Row 1953] 267). 9 Hobbes Leviathan 382-3 1 In a later work Locke defends each man's 'inward persuasion of the mind' against interference from civil authority. Although he neglects a property in religious opinion in the Second Treatise, this concept of property is expressed in his letter on toleration. See John Locke A Letter concerning Toleration ed. by Patrick Romanell (Indianapolis, Ind., Bobbs-Merrill Co. 1955) 18. 2 John Locke Second Treatise sect. 139 in Two Treatises of Government ed. with an intro. by Peter Laslett (New York, Mentor Books 1965)

84 Hobbes and America ism overwhelmed all other considerations. The concerns of this cultural shift are reflected in Locke's chapter 'On Property' and in the doctrine of a right of resistance against the sovereign who infringes against landed or financial wealth. But Hobbes takes a more generous view of those things in which a man may be said to have a strong sense of property, and Hobbes defends, in language which is more general than Locke's, those inalienable rights, not restricted to but including material possessions, which cannot by covenant be transferred and which, when infringed by the sovereign, justify the individual in resisting him. A man who ranked property in material possessions above life (as did Locke) would still find support for his outlook in the more humane philosophy of Hobbes. A reason why Hobbes has been misunderstood on this point is that he is less inclined than Locke to define property in the narrow commercial sense.3 It is Hobbes, therefore, who defines those rights which are non-alienable with greater latitude than Locke, whose concept of the covenant is more protective of these rights than Locke's, and who has a better claim than Locke to be considered the father of the liberal tradition. Hobbes appears to contradict much of what has been said about the restraints imposed by the covenant on the sovereign in a devastating passage: 'It is ... in vain to grant Soveraignty by way of precedent Covenant. The opinion that any Monarch receiveth his Power by Covenant, that is to say on Condition, proceedeth from want of understanding this easie truth, that Covenants being but words, and breath, have no force to ... protect any man, but what it has from the publique Sword.'4 This passage must be reconciled with the previous discussion of the limits, arising from the covenant, upon the exercise of sovereign power. In context the passage reveals that Hobbes is refuting the notion that the sovereign receives his power by way of a covenant between himself and the 'people,' taken either as a corporate body or as individuals: 'That he which is madeSoveraignemaketh no Covenant with his Subjects/beforehand, is manifest; because either he must make it with the whole multitude, as one party to the Covenant; or he must make a severall Covenant with every man.' 5 Accepting the view that the sovereign does not make a covenant with the 'people' does not rule out the view that the sovereign receives his power by way of covenant from the 'people.' The 3 But see the article by Benjamin Lopata 'Property Theory in Hobbes' Political Theory 1, no. 3 (May 1973): 203-18. 4 Hobbes Leviathan 231 5 Ibid. 230

85 Liberal democracy and conflict-management sovereign does receive his power through covenant relations, to which he is not a party, between each individual and every other: 'Because the Right of Bearing the Person of them all, is given to him then make Soveraigne, by Covenant onely of one to another, and not of him to any of them.' 6 Therefore the covenant, correctly understood, is the source of the sovereign's power and it imposes limitations on his power which Hobbes, consistently with his whole teaching, would affirm. The conclusion that Hobbes's philosophy is formative of political institutions whose central purpose is to manage conflict through transactional relations is a deduction from Hobbes's treatment of the sources of public authority. Attention should be focussed on the manner in which public authority is constituted and why it is constituted.7 Public order has its origins in transactional relations (the covenant) between individuals wherein agreement to limit one's right of self-rule occurs among consenting parties. Subsequently, we infer, public order is sustained through transactional relations which adjust the absolute right of the sovereign to the right of the individual. Of course, there is some point at which negotiations between sovereign and subject over their respective scope of rights must stop. The sovereign has a monopoly of the means of legitimate coercion. The power of the sword will be brought into play where the rights and immunities asserted by the subject strike at the basis of the covenant and the authority of the sovereign: But the sovereign will use the sword reluctantly and only where the state is endangered. When he can the sovereign will avoid the use of drastic sanctions and provide moderate political rule. When he is in conflict with powerful individuals and groups, bargaining and negotiation will constitute the essence of the political process. The elements of the argument leading one to the conclusion that transactional relations constitute the essence of the political process are these. The use of the sword to settle conflicts of right between the sovereign and the subject is clearly unsatisfactory, for when the sovereign uses the power of the sword (as distinguished from threatening its use), the subject recovers his natural liberty. The covenant, as we have seen, is a transfer of right contingent upon safety of performance. Under its 6 Ibid. 7 For an essay which reaches a similar conclusion about the pattern of politics in a society constituted on Hobbesian principles see Francis Devine 'Hobbes: The Theoretical Basis of Political Compromise' Polity Fall 1972, 58-76.

86 Hobbes and America terms, the subject recovers the right to use whatever helps he can in his defense when the sovereign directly endangers his life or livelihood. The lack of utility of the sword in settling conflicts of right between sovereign and subject points to some other means of adjustment. Second, the authority of the sovereign arises out of transactional relations between individuals. If bargaining may be defined as a deliberative process between two (or more) parties, concerning appetites and aversions, ended by an agreement (executed through an exchange of promises) to do or forbear from doing something which will bring to each party some future good, then the covenant relation is a bargain. Hobbes's discussion of the covenant shows that public authority is based on the mutual perception of private parties of a need to restrict their natural liberties. The deliberative process of men in the state of nature, instructed by the fear of death and hopeful for the commodities of life, will accept as a good bargain the restriction of their natural liberty in exchange for security of property and person.8 The inference may be drawn that in the ordinary process of making and enforcing the law, the sovereign will be drawn into the transactional relations from whence his authority derives. Third, the society described by Hobbes is extraordinarily litigious. We have seen that we are not bound by the terms of the covenant not to resist the sovereign when he uses the power of the sword against our person, nor are we bound not to attempt to influence the actions of the sovereign when we can and it is to our advantage to do so. A subject who seeks to bribe a legislative assembly does not perform an act of injustice unless the law specifically prohibits it. Hobbes accepts the principle that money is legitimate coin in the conduct of transactional relations between sovereign and subject: 'But if he, whose private interest is to be debated, and judged in the Assembly, make as many friends as he can; in him it is no Injustice; because in this case he is not part of the Assembly. And though he hire such friends with mony, (unlesse there be an expresse Law against it,) yet it is not Injustice. For sometimes, (as mens manners are,) Justice cannot be had without mony; and every man may think his own cause just, till it be heard, and judged.' 9 Fourth, Hobbes states that the sovereign has a right to exploit the powers of his office to serve his private need or the needs of clientele groups which are vital to his success in office. This is because the sov8 Ibid. 127, 186-8, 190-2 9 Ibid. 286-7

87 Liberal democracy and conflict-management ereign is vested not only with an artificial right of rule (arising from the covenant) but also with an unfettered natural right (arising from the circumstance that the sovereign is not a party to the covenant).1 Under these circumstances, Hobbes recommends the institution of the monarchical office as being less susceptible to corruption by special interests.2 The corruptibility of the monarch, unlike the assembly, is lessened by the natural limitations on the extent of his appetite and his circle of acquaintances. Also, in a monarchy the private interest of the monarch and the requirements of public order are more nearly united, and the monarch is less accessible to private parties seeking to exert influence upon the legislative process. Whether the sovereign is a monarch or an assembly, some degree of corruption is to be expected: 'Whosoever beareth the Person of the People, or is one of that Assembly that bears it, beareth his own naturall Person. And though he be careful in his politique Person to procure the common interest; yet he is more, or no lesse careful to procure the private good of himselfe, his family, kindred, and friends; and for the most part, if the publique interest chance to crosse the private, he prefers the private... And whereas the Favorites of Monarchs are few, and they have none else to advance but their own Kindred; the Favorites of an Assembly, are many; and the Kindred much more numerous, than of any Monarch.' 3 The conclusion seems warranted that in the ordinary process of lawmaking and law-enforcement, the sovereign will be drawn into the transactional relations from whence his authority derives. Where the acts of the sovereign impinge on the rights of his litigious subjects, each of whom is busily engaged in gaining special privileges and exemptions for his personal right, bargaining and negotiation between sovereign and subject will become the natural element of public discourse. The subject will be disposed to bargain with the sovereign to extend and promote his interest through the political process. The sovereign will not be reluctant to accept considerations, including money, to bend the law into conformity with private interests because the sovereign has a natural right to exploit the powers of his office. Another reason for favoring monarchical institutions, according to Hobbes, is that they are less likely to perpetuate the conflicts of private 1 Ibid. 230 2 Ibid. 241-4. Most writers on Hobbes have missed the utilitarian considerations underlying his preference for monarchy. An exception is Richard Peters Hobbes (London, Peregrine 1967) 222-3. 3 Ibid. 241 and 243

88 Hobbes and America right which sovereignty was meant to end. Representative institutions are often internally divided in their judgments and apt to dissolve into factions which contrive to dominate the legislative process.4 A monarch is more capable of exercising the sovereign power of choice because he is a single man and his deliberations are easily terminated.5 On the other hand, 'the Passions of men ... in Assembly are like many brands, that enflame one another, (especially when they blow one another with Orations) to the setting of the Common-wealth on fire.'6 To compensate for the solitary nature of the monarchical office, Hobbes recommends that the monarch appoint counsellors, whose judgments he may consult at his own choosing.7 The view may linger on that Hobbes intended the sovereign to eliminate all political conflict through coercion, or threat of coercion, and that the conflict-management thesis must be in error. This opposing view has a large and respectable following among students of Hobbes and must be given a hearing. The charge most frequently brought against Hobbes is that the sovereign will use the power of the sword, as a first resort, to resolve all conflicts of right between the sovereign and subject and that the office of the sovereign is sustained, in this event, by the fear which the sovereign is able to inspire through the coercive exercise of his power.8 It is maintained that Hobbes is an advocate of the principle that 'might makes right' and that this places him in conflict with the liberal-democratic principle that government is derived from the consent of the governed.9 Since the rights of individuals and groups are the creation of the state, Hobbes's theory of government is said to be incompatible with the pluralist composition of a liberal society.1 Justification for this opposing view is often drawn from the dramatic passage in which Hobbes invokes the power of Leviathan 'that by terror thereof, 4 Ibid. 242 5 6 7 8

Ibid. 243 Ibid. 309 Ibid. 241-2 H. Laski Authority in the Modern State (New Haven, Yale University Press 1919) 23,33 9 See W.T. Jones Masters of Political Thought (Boston, Houghton Mifflin 1941) 2: ch. 4, C.E. Vaughan Studies in the History of Political Philosophy ed. by A. Little (New York, Russell & Russell Publishers 1960) 1: ch. 2, J.W. Gough The Social Contract (Oxford, Clarendon Press 1936) 102, R. Collingwood The New Leviathan (Oxford, Clarendon Press 1942). 1 Laski Authority in the Modem State 84

89 Liberal democracy and conflict-management he is inabled to forme the wills of them all, to Peace at home, and mutuall ayd against their enemies abroad/ 2 Against this view of Hobbes, we need to weigh his principles of the limited utility of coercion, inalienable rights of property, and a right of resistance. If these principles are placed in concert, Hobbes may be seen as the forerunner of the modern liberal emphasis upon politics as conflict-management. Locke and Madison are usually credited with the notion that property in material possessions is the most fruitful source of conflict and that it is the function of the state to manage conflict among the actively involved contenders. But the true source and most satisfactory expression of these ideas is found in Hobbes. Hobbes's views on the utility of coercion suggests that the sovereign will seek to manage, rather than suppress, social conflict. His general position is that the threat of force, as an element of communication between sovereign and subject, is itself a part of politics. The use of force implies the defeat of politics. If force is applied, the conversation between sovereign and subject leading to a consensual basis for political rule is terminated. The threat of force may be an element, and a substantial element, of these communications, but it is only successful if not applied. The case of 'conquest' demonstrates that force alone may lead to the defeat of political objectives: 'He ... that is slain is Overcome, but not Conquered: He that is taken and put into prison ... is not Conquered, though Overcome.'3 'Conquest'is achieved, not by victory itself, but when the subject recognizes the acquisition by victory of a right of rule over his person. The argument that the sovereign will avoid the use of coercion may be further developed if we reflect that the threat of force is unsatisfactory, although to a lesser degree than the actual use of force. The threat of force is unsatisfactory simply because in order to succeed it must be a bluff that no one ever calls. The threat of force must signal an actual intention to use force in every case in which it is threatened. But the use of force in an Hobbesian polity calls down all the objections we have raised above. The threat of force still creates problems for an Hobbesian sovereign, although not to the same extent as the actual use of force. These reflections make it appear highly unlikely that the sovereign will threaten force, as a first resort, in dealing with his subjects. Trans2 Hobbes Leviathan 227-8 3 Ibid. 720

90 Hobbes and America actional relations between sovereign and subject, dealing in the mutual coin of self-interest, offer a way out of the dilemma. Force does not create the rights of sovereignty and force cannot be relied upon, in the final analysis, to sustain the rights of sovereignty. The sovereign will have to sustain himself in office by means other than the power of the sword, 'because they [the rights of the sovereign] cannot be maintained by any Civill Law, or terrour of legall punishment.' 4 Hobbes's distinction between the authority and the power of the sovereign makes it abundantly clear that he could never sanction the principle of Might makes Right. The authority of the sovereign to employ the sword derives from the independent acts of authorization of the members of political society. The covenant which confers authority on the sovereign also reserves, on the part of the subject, a right to resist when the sovereign employs the sword against his person.5 There will always be some element of fear in the consent of subjects to the rule of the sovereign, Hobbes allows, but the sovereign's authority is derived from the consent of the governed and not from the power which he wields. In driving home this important distinction between the authority and the power of the sovereign, between government by consent and government by force, between the unbridled anxiety such as would be experienced by men in a lawless state and a reasonable fear of state power, Hobbes states in the passage just cited that to 'conquer' a man (and to make him a subject), one does not wield power over him by shooting or jailing him. Then a man is 'overcome' but not conquered. A man is conquered when he willingly obeys in order to have his life and liberty allowed him.6 To sum up, the authority of the sovereign is created by covenant; his power reinforces his authority but does not create it. In view of the tendency of Hobbes's critics to impose alien categories on his thought and to exaggerate the power of the sovereign, it may be useful to consider for the moment whether Hobbes is an absolutist or an authoritarian. I shall not argue, conversely, that Hobbes is & libertarian , indeed, I shall show that Hobbes is not as simple as those who fit this label. If it can be established that the application of the labels authoritarian and absolutist to Hobbes do not work, then the way will have been prepared for further argument that Hobbes is a liberal-democrat and the author of a philosophy of constitutionalism appropriate to the genius of liberalism. 4 Ibid. 377 5 Ibid. 192 6 Ibid. 720

91 Liberal democracy and conflict-management Hobbes is the enemy of authoritarian rule because he declares that the authority of the sovereign does not depend on any power or capacity which he possesses in his natural aspect. According to Hobbes, the authority of the sovereign is based solely upon the occupancy of an office which is the deliberate creation of a multitude of individuals.7 Under these conditions, the authority of the sovereign is hedged in by the terms of the covenant, which are, in brief, that he provide his subjects with security in the enjoyment of their rights.8 Authoritarian rule vests sovereignty in a person or a group of persons, not in an office. This form of rule abolishes the tension between the rights of the sovereign and the rights of the subject by making special claims on behalf of the wisdom and virtue, and, therefore, the right of the former. Under authoritarian regimes, the sovereign is sole judge of what serves the good of the people, whereas Hobbes shows in numerous places that the right of judging where his safety lies belongs to the subject, not to the sovereign.9 A second argument against the authoritarian charge is that there is no confusion in Hobbes's thought between the will of the sovereign, issuing in the law, and the will of the subject, obeying the law. Although the sovereign has, in principle, an unfettered right to make laws by willing, the natural liberty of the subject remains intact, because the subject does not take the sovereign's will for his will, but recognizes that the sovereign exercises his own will in the subject's behalf.1 Hobbes isolates the will of the sovereign from the will of the subject because the obligations incurred by the subject, under the terms of the covenant, are negatively expressed.2 The sovereign cannot, therefore, make the claim characteristically made by authoritarian regimes that he is the representative of the common will. The sovereign does not represent the common will; he is the common object of our separate wills. If the sovereign claimed that he represented the general will, he would have unlimited authority to meddle in the rights and liberties of his subjects. But, if the sovereign is the common object of our separate wills, he is restrained by the purposes for which he is instituted.3 7 Ibid. 229. On this point see the discussion by M. Oakeshott in his edition of Leviathan lv-lviii. 8 Ibid. 272 9 Ibid, 270, 272, 375 1 Ibid. 269 2 Ibid. 190, 191 3 See Bertrand De Jouvenel Sovereignty tr. by J. Huntington (Chicago, University of Chicago Press, Phoenix Books 1963) 239.

92 Hobbes and America Hobbes cannot be categorized as an absolutist because the authority of the state is not, in the final analysis, absolute, but depends on the independent acts of authorization of its subjects. Although the subjects promise in covenant relationship to transfer their right of self-rule to the sovereign, the keeping of the promise is dependent on the protection of essential rights by the sovereign. There are certain things the sovereign must do and certain things he must not do, if he is to retain his authority. The sovereign must provide the subject with security in the possession of his rights. The obligation of subjects to their sovereign is taken away if, when they are attacked, he is powerless to protect them.4 The sovereign must not make the life of his subjects miserable, if he is to retain his authority.5 A sovereign who struck heedlessly at the objectives of the covenant would force his subjects into resistance. A sovereign who was partial in distributing the burdens of taxation and military service would forget that his authority is equally derived from each member of society. Hobbes states that a sovereign who is negligent of his subjects invites rebellion.6 It must be presumed that the sovereign will have the same anxiety to preserve his life as the subject, and the life of the sovereign is dependent on the independent acts of authorization of his subjects. The admission that Hobbes cannot be categorized as a libertarian either may be made without damage to the arguments above that he is not an absolutist or an authoritarian. Hobbes did not believe, like the laissez faire liberals of a later day, that the by-product of individual egoism is the public good.7 A touch of this view appears in Hobbes's doctrine that monarchy is superior to other forms of government for the reason, among others, that in a monarchy the natural and the public person are most closely united.8 But Hobbes rejected the view that man is a social animal.9 He predicts that disaster will follow from taking away constituted authority and is deeply skeptical about the capacities of the Hobbes Leviathan 272 Ibid. Ibid. 407 M. Oakeshott remarks that 'it was Richard Cumberland with his "social instinct" and later Adam Smith with his "social passions" who bewitched liberalism by appearing to solve the problem of individualism when they had really only avoided it' (as noted in Oakeshott's edition of Leviathan Ivii). 8 Hobbes Leviathan 241 9 Ibid. 225-6

4 5 6 7

93 Liberal democracy and conflict-management individual for intelligent self-direction. Hobbes spoke of the individuals who had stepped outside the protective custody of feudal institutions as *masterlesse men.'1 Public order, if it is to arise, is the product of costly deliberation, not the fortuitous consequence of individual acts of self-aggrandizement. I have argued above that Hobbes cannot be categorized as an authoritarian or an absolutist. Indirectly, these arguments support the view that Hobbes is a constitutionalist. But Hobbes is not a constitutionalist in the sense that classical philosophy understands the use of the term. Constitutional order, in the meaning of the term developed by classicism, is replaced by Hobbes with a theory of conflict-management. The theory of conflict-management originated by Hobbes employs the terms of classical political tradition - rule of law and office - but Hobbes purges these terms of their authoritarian content in making them consistent with the principles of liberalism and so renders them vacuous. So completely are these terms divested of the function given them by classicism that Hobbes may be said to deprive liberalism of a true constitutional philosophy. As pointed out earlier, classical political tradition begins with the rule of law and deduces all rights and obligations of the citizens from the law. The law is reason, uninfluenced by passion, and reason discovers in nature a norm which provides a pattern of political rule. The rule of law is prior to and creative of office; its function is to conform the life of the members of society to an ideal pattern of individual and collective existence. Originally, the ideal purposes of the rule of law were articulated by a gifted philosopher, but later the idea arose of a social compact through which a people conforms itself to a pattern of law. The function of the official in classical tradition is to adjust the members of society to the positive and developmental forces embodied in the rule of law. Ultimately, classicists suggest that the sources of social conflict can be eliminated, or at any rate much reduced, through conformity to the rule of law. The liberty and salvation of the members of society, in classical political tradition, occurs through obedience to the rule of law. Hobbes differs from the classical tradition of a rule of law by declaring the priority of the state (the office of the sovereign) to the law and by refusing to affirm an inner content of the law. The authority of the 1 Ibid. 238

94 Hobbes and America law is dependent neither on its reasonableness nor on its agreement with custom, but on its source as the will of the sovereign.2 The function of the law is to create and maintain the boundaries of social conflict through a definition of permissible actions.3 A modicum of stability will be secured by the sovereign who will finally settle conflicts of private right arising in society. But the sovereign cannot resolve the conditions which give rise to social conflict. These conditions are irremediable because they lie in the private and utterly discrete needs of man himself. The law of property is the most important expression of the will of the sovereign because by this law each man knows what is his own and the uneasy peace of civil society is established.4 The liberty of the individual does not consist in obedience to the rule of law, but in those things the law neglects to regulate.5 The office of the sovereign is the end (or object) for which sovereign authority is constituted, and this end is the 'safety of the people/ But 'safety' does not mean bare preservation alone, but further the maintenance of those external conditions within which one can pursue happiness.6 The sovereign assists his subjects in the pursuit of happiness not by defining the goals which the members of society ought to pursue, but by removing the obstacles to happiness, privately defined.7 The object of Hobbes's political theory is to encourage commercial Protestants, weary of conflict and hopeful of comfortable preservation, to negotiate their differences rather than fight them out. Public order 2 Ibid. 311, 316. The sole source of authority in modern society in this new outlook is the right of the individual. As I have emphasized, Hobbes bases the authority of the sovereign on the consent of individuals, each of whom has a natural right of self-rule. Cf. Hobbes Leviathan 189-91, 334. 3 Ibid. 234. In theory, if not in terms of the exigencies of maintaining his authority, there are no limits on the law-making authority of the sovereign because there is no law which he cannot make or repeal. But, insofar as the sovereign administers the law, he will settle cases and controversies according to existing law because the essence of the state is law. The subject who commits an act under statutes then in force has authority from the sovereign for what he does. Insofar as the sovereign makes the law, for reasons we have already examined, he will studiously avoid attacking the essential rights of subjects and he will insure that the laws are equitable. The formal characteristics of the law are that it is published, prospective, and general in application, applies to those who are cognizant, and is the command of the sovereign. Cf. ibid. 346, 385, 317-20. 4 Ibid. 234, 296 5 Ibid. 271 6 Ibid. 376, 388 7 Ibid. 388

95 Liberal democracy and conflict-management has its sources, as I have said, in negotiations (the covenant) between independently situated political actors; afterwards, public order is sustained by transactional relations which adjust the absolute right of the sovereign to the right of the individual. There is no binding obligation on the part of the sovereign to achieve the objectives of the covenant through administering office and the rule of law, nor are subjects obligated to serve the sovereign in those cases where it might truly matter. A contemporary of Hobbes's observed that subjects take the sovereign for better, but not for worse. All parties to the covenant support its provisions only to the extent that they intersect with private interest; the sovereign best administers office and the rule of law when they are most closely identified with his person, property, and clienteles. Nevertheless, the prudential calculations which lie at the center of attention of commercial Protestants will encourage sovereign and subject, and parties to the covenant, to negotiate their differences rather than resort to the sword. Subjects will realize that most of the people most of the time will find that comfortable preservation is promoted through obedience to the sovereign. The sovereign must be given credit for awareness that were he to strike heedlessly at the objectives of the covenant he would undermine the authority of his office. The theory of conflict-management set forward by Hobbes anticipates the view of Locke and Madison that property is among the most frequent and durable sources of conflict within society and that it is the sovereign's task to manage conflict among the principal contenders. We have seen that the rights of property are extensively defined by Hobbes and afforded protection through the covenant and the doctrine of inalienable rights. Those things in which a man has a strong sense of propriety depend on the subjective ordering of his individual intelligence. Hobbes tends to take a generous view of those things in which a man has a strong sense of propriety, and he defends those inalienable rights, amongst which he sometimes includes material possessions, which cannot by covenant be transferred and which, when infringed against by the civil sovereign, furnish the individual with a right of resistance. A reason why Hobbes has been misunderstood is that he is less a propagandist of inalienable rights than his descendants in the liberal tradition, Locke and Madison. Nevertheless, it is Hobbes, we have seen, who defines property rights with greater latitude than the above authors, whose concept of the covenant is more protective of these rights than the references of Locke and Madison, whose concept of the limited utility of coercion paves the way for the conflict-management view of politics

96 Hobbes and America developed by later theorists, and who, therefore, has an excellent claim to be considered the father of modern liberalism. A final objection to the view that Hobbes is the father of liberal democracy is that his theory of representation is inconsistent with the genius of democracy. Hannah Pitkin says that Hobbes does not set forward the criteria which a proper representative must fulfill if he is to keep his office. He does not make the representative do specific things and refrain from doing other things to remain in his post. The sovereign has rights but it appears no duties. We are obliged by the covenant to take the representative's actions for our own, but the representative is not obliged to consult our interests in taking the actions that he does.8 My reply to this objection is that Hobbes possesses a theory of representation which approximates the position of Calhoun, and that the views of Hobbes and Calhoun on representative government can fairly claim to be the orthodox position of liberal democracy. The position of Calhoun that the sovereign, when constituted as a democracy, acts under the constraints of the concurrent majority is well known. The numerical majority has a right of rule; yet it is clear that there are rights that remain untransferred in the covenant even to a numerical majority. A right of resistance to acts of the numerical majority which infringe against person and property remains in possession of the concurrent majority. Therefore, the numerical majority must bear continually in mind, Calhoun says, that it requires 'the consent of each interest either to put or keep the government in action.' 9 If Calhoun's theory of representation is Hobbes's theory, then Pitkin's charge is true to the extent that the sovereign is not legally obligated to consult the interests of the members of society. Given the right of resistance which remains in the possession of the concurrent majority, however, prudence dictates that the sovereign conciliate the diverse interests of the concurrent majority. In Hobbes the first form of all instituted government is a democracy. Since all men in the state of nature are equal in rights, the first part of the covenant must be an agreement of each man with every other man to accept as their representative that person or persons designated by a majority of all of them.1 The representative person appointed to rule is an ordinary man, holding office by virtue of an election in which all 8 Hannah Pitkin 'Hobbes's Concept of Representation - I and II' American Political Science Review June and December 1964, 328-40, 902-18 9 John C. Calhoun A Disquisition on Government and Selections from the Discourse ed. by C. Gordon Post (New York, Bobbs-Merrill Co. 1953) 20 1 Hobbes Leviathan 228-9

97 Liberal democracy and conflict-management have taken part, each man having one vote. If the person designated as the representative person is a democracy, then the numerical majority has a right of rule.2 But elsewhere, in the Leviathan and the De Cive, Hobbes is emphatic about the right of the individual to reserve rights in the covenant even against a numerical majority.3 'It is not from nature that the consent of the major should be received for the consent of all/ Hobbes says, *but it proceeds from civil institution.'4 It follows that the numerical majority is restrained by the covenant relationships which are creative of a representative democracy. Much of the force of Pitkin's interpretation of Hobbes is derived from minimizing the importance of the covenant and the doctrine of inalienable rights. If this course is taken one may conclude that the representative person, whether a monarch, an aristocracy, or a democracy, will ignore the interests of subjects from whom his authority derives. As in other matters, Hobbes's prejudices have obscured a clear perception of his basic theory. Although pure democracy is the original form of all instituted government, the reader cannot help becoming aware that this, to Hobbes, is nothing in its favor. Hobbes does not celebrate the rights of the concurrent majority, as Calhoun did, and this has led to the opinion that they are undefended by his theory. But in fact it is precisely the 'un-natural' propensity of the numerical majority to rule which leads Hobbes to formulate the theory of the covenant and the doctrine of inalienable rights. These doctrines, offering protection to each of the parties to the covenant relationship, prepare the way for Calhoun's later theory of the concurrent majority.5 This chapter has sought to clear away objections to the view that Hobbes is the parent source of American political thought. First, we have seen that Hobbes was alert to changes in the political culture of 2 Ibid. 221 3 Thomas Hobbes Man and Citizen ed. by Bernard Gert (New York, Doubleday & Co., Anchor Books 1972) 127, 189, 195 4 Ibid. 189 5 The view that Hobbes is the forerunner of the modern theory of representative government is set forward in studies by Harvey Mansfield. Mansfield's discussion, on which the above account partly relies, also takes issue with the allegation of Pitkin that Hobbes's theory is opposed to representative government. See Harvey Mansfield 'Hobbes and the Science of Indirect Government1 American Political Science Review March 1971, 97-110, 'Modern and Medieval Representation' in J. Roland Pennock and John Chapman (eds.) Representation (New York, Atherton Press 1968) 58-82.

98 Hobbes and America England which had precipitated novel ideas about the principles on which government ought to be constituted. Responding to the challenge of a revolutionary condition, Hobbes sought to develop a theory of government consistent with the goals of commercial Protestantism. Second, the charge has been answered that Hobbes is an authoritarian or, worse, the forerunner of totalitarian institutions. On the contrary, Hobbes's doctrines of inalienable rights, a right of resistance, equality before the law, and government by consent lay the foundation for a liberal-democratic philosophy of constitutionalism. The principles on which Hobbes proposed to constitute authority in society appear here as wholly consistent with liberal democracy, perhaps more so than those of any writer since Hobbes. Hobbes is certainly more open than the liberal theorists who follow after him about the extent to which coercion reinforces the office of the sovereign. But it appears that Hobbes's position in favor of a reasonable fear of state power is quite consistent with a liberal-democratic society and very contemporary.6 Finally, the seeds of a democratic theory of representative government are planted by Hobbes. It appears that critics of Hobbes have erroneously identified the might of the sovereign as the central dilemma of his political thought. There is much reason to believe that reports of the sovereign's power are grossly exaggerated. The conditions of the covenant impose the view that the power of the sovereign is always in the process of formation, never formed, that it is being created, although never fully realized. In dealing with parties as influential as he, at least in terms of wealth, the sovereign will negotiate from a position of weakness. In dealing with the rampant paranoia of a liberal society, the sovereign will be completely helpless. The parties to the covenant relation will invariably seek to reserve rights to themselves, more than another, and will think themselves justified in concealing the weapon by which they will be enforced. Randomly directed and uncertainly timed, these propensities toward violence will produce a reservation of rights against the sovereign and other parties to the covenant. The central dilemma of Hobbesian politics is that the sovereign cannot resolve the conditions which give rise to conflict in society. These con6 While Hobbes's theory of government does not include a doctrine of instutionalized checks on the power of the sovereign, this doctrine is not inconsistent with the Hobbesian philosophy. I shall show in the succeeding chapters that this doctrine, when viewed correctly, is in agreement with Hobbes's emphasis on institutions suited to managing social conflict.

99 Liberal democracy and conflict-management ditions are irremediable because they lie in the private and utterly discrete needs of man himself. While public authority performs an essential service in finally settling conflicts of private right, it can do no more than maintain a modicum of civil order. Thus the sovereign is deprived of an adequate ideal of civilization in terms of which the members of society may be organized. Segments of public order may relapse into the state of nature with no identifiable sense of loss on the part of bourgeois men. If public order is presented with some new and severe trial, requiring a more creative use of public authority, the sovereign will be incapable of action. Only threats to the whole structure of constituted authority will assuredly elicit a response. Equally assuredly, the response will be a feeble one. The members of the Hobbesian polity exhibit fine powers of calculation in the trivial business of protecting their interests and gamble like madmen when confronted with the serious issues of political survival.7

7 See Leo Strauss Natural Right and History (Chicago, University of Chicago Press 1953)4.

5 The Lockean connection

Locke transmitted to America an ungraceful version of Hobbes's new constitutional philosophy of conflict-management. Locke's view of the source, nature, and limits of public authority is in all important respects identical with Hobbes's. Like him, Locke considers the individual to be freed, contemporaneously, from all the restraints formerly imposed by 'higher law' on rights of property acquisition. Like Hobbes, he advances the view that where private rights are pushed to their utmost extent, public authority must be empowered to settle absolutely conflicts of private right. Locke differs from Hobbes in vesting sovereignty in a pattern of offices, a representative and hereditary assembly and monarchy, rather than a single office, monarchy. The reason for this change is that Locke believes that separate institutions sharing power are better suited to managing social conflict. The change, therefore, is a matter of policy and does not involve the substantive authority of the sovereign. In Locke, Madison, and Hobbes political institutions suited to managing social conflict are the overriding criterion of constitutional design. Several other major, though not substantive, changes occur for the first time in Locke. One such change is that with Locke the Hobbesian sovereign is transmuted into a social no less than a political structure. In Locke, a parental sovereign operating in the social sphere reinforces the position of the institutional sovereign operating in the political sphere. This metamorphosis of the Hobbesian sovereign, which occurs for the first time in Locke, anticipates the formal characteristics of sovereignty in the American context. Second, natural law becomes in Locke a rhetorical device employed by a propertied elite to conceal the operative realities of Hobbesian politics and, thereby, to purchase political

101 The Lockean connection quiescence. Symbolic manipulation is employed by Locke to augment the position of social and institutional authority. If American political reformers appear to be badly misled, it is because they are influenced by Locke's artful gifts of rhetoric and myth-making. Third, we should notice that property absorbs virtually the whole content of Locke's idea of natural right. A substantial narrowing of the claims of modern egoism occurs with Locke's exaggerated and monotonous emphasis on the rights of property appropriation. Although the main emphasis here is upon Locke's place in a political tradition originated by Hobbes, there is no intention of abandoning the view that Hobbes directly influenced Locke. Peter Laslett implies that direct influence exists in remarking that 'the thinking of Hobbes was of systematic importance to Locke and enters into his doctrine in a way that goes deeper than any difference of political opinion.'1 Locke's own writings show that he was familiar with the major doctrines of the author of Leviathan. Locke observes, pretending to be neutral, that the 'old philosophers' and Hobbes give conflicting answers to the question 'why men should keep their compacts.' 2 If a'Hobbist' is asked the question, the response is 'because the public requires it, and the sovereign will punish you if you do not.' 3 If a classical theorist is asked the same question, the answer is 'because it [is] dishonest, below the dignity of a man, and opposite to virtue, the highest perfection of human nature, to do otherwise.'4 Locke agrees with the Hobbesian view that a reasonable fear of state power is the basic motive for compliance with the law. In language reminiscent of Hobbes he states 'robberies, murders, rapes, are the sport of men set at liberty from punishment and censure.' 5 The direct influence of Hobbes on Locke plainly exists but is not of great importance. A more significant enterprise is to show that Locke embraces and disseminates Hobbes's new constitutional philosophy of conflict-management. 1 John Locke Two Treatises of Government ed. with an intro. by Peter Laslett (New York, Mentor Books 1960) 81. In numerous footnotes to the Second Treatise Laslett points out the underlying influence of Hobbes. See ibid, sects. 19,21, 123, 139,212. 2 John Locke An Essay concerning Human Understanding ed. by Alexander Campbell Fraser (New York, Dover Publications 1959) 1: 69 3 Ibid. 4 Ibid. 5 Ibid. 72. Compare Hobbes's remark about 'masterlesse men, without subjection to Lawes, and a coercive Power to tye their hands from rapine, and revenge' (Hobbes Leviathan 238).

102 Hobbes and America We might begin by showing that Locke's theory of the source, nature, and limits of public authority is identical with the view of Hobbes. This confronts the obstacle that the most widely accepted version of Locke's political philosophy links him to the natural law tradition in political thought.6 In the view of most of his interpreters, Locke sought to establish that the source of public authority is a pattern of law, discernible to all men of reason and goodwill. This pattern of law is 'natural' to men in the sense that the law provides a guide to personal fulfillment in harmony with the objective needs of social order. Certain deficiencies in the administration of the natural law out of the bounds of civil society are remedied by a social compact. In the social compact, the members of society agree to the formation of public institutions which will establish the efficient administration of the rule of law within society. The limits of public authority are governed by 'higher law.' Official acts not in accordance with the higher law are not binding on subjects. Where the government has repeatedly acted outside the limits of the law prescribed by the social compact, the members of society have a right of revolution. Specifically, the people have a right to discharge governors from their office and to reconstitute the government on such principles as they think best. If Locke's theory of government is in conformity with natural law tradition, then he does not share Hobbes's view of the source, nature, and limits of public authority and does not transmit the Hobbesian philosophy of constitutionalism into American political tradition. Classical constitutional tradition maintains that the law is the formal and efficient cause of political association, that law is a rule of reason uninfluenced by passion, and that law reconciles individual with social purpose. Hobbes's efforts were directed toward refuting the philosophical basis of these principles. Despite his formal allegiance to the principles of natural law, there is much evidence that Locke, like Hobbes, traces the source of public authority to the prior and absolute right of 6 See W.T. Jones Masters of Political Thought (Boston, Houghton Mifflin Co. 1941) 2: 163, Carl J. Friedrich An Introduction to Political Theory (New York, Harper & Row Publishers 1967) 18-19, Arthur N. Holcombe The Constitutional System (Glenview, 111., Scott Foresman & Co. 1964) 5, Sterling P. Lamprecht Moral and Political Philosophy of John Locke (New York, Russell & Russell Publishers 1962) 9-21, John Plamenatz Man and Society (New York, McGraw Hill Book Co. 1963) 1: 216, Ernest Barker (ed.) Social Contract (New York, Oxford University Press 1962) xxvi, J.W. Gough John Locke's Political Philosophy (Oxford, Clarendon Press 1950) ch. 1.

103 The Lockean connection the individual. To demonstrate the proposition that Locke, no less than Hobbes, is an advocate of the rights of the individual, whatever their consequences for society, I shall focus on this theory of a right of property appropriation and of a corollary right to inflict punishment on those who violate the rights of property. Locke's doctrine of a right of property appropriation plays a crucial role in his theory because he makes it the chief purpose of a duly constituted government to protect property acquired within the limits specified by natural law. The natural law limits on property acquisition imposed by Locke are spoilage, sufficiency, and labor.7 If Locke is to remain a faithful adherent of natural law tradition, these limits on property acquisition must implement the cardinal rule of classical tradition, that the rights of the members of society are contingent upon the social utility of their possession. Recent scholarship has shown that natural law limitations on the right of property appropriation are removed by other parts of Locke's theory. If it is the case that Locke places no limits on the right of property acquisition, then it is plain that Locke defends an absolute right of property appropriation, a position taken rather more modestly by Hobbes,8 and that Locke's theory is more at variance with natural law tradition than Hobbes on this particular point. It seems clear that the initial limitation on property acquisition involving spoilage is overstepped by other parts of the Lockean theory. The initial limitation is that the individual be able to consume the fruits of his labor. The standard is a consumption standard applying to perishable goods. The initial limitation is overstepped through the introduction of money. Money is not a perishable good and therefore one can accumulate as much of it as one likes.9 Since one can accumulate as much money as one likes, one can also accumulate as much as one likes of other forms of wealth which are convertible into money. Hence we find Locke justifying the unlimited acquisition of land, as well as the unlimited acquisition of money.1 All this takes place out of the bounds of 7 Locke Second Treatise sects. 31, 36; 27; 28, 30 8 Hobbes puts forward that no right of property exists before the creation of civil authority, whereas Locke maintains the doctrine of a right to grab and hold unlimitedly. On this point compare Thomas Hobbes Leviathan (Oxford, Basil Blackwell 1957) 234 and Locke Second Treatise sect. 139. 9 Locke Second Treatise sect. 50. For the general argument which follows, I am indebted to C.B. Macpherson Possessive Individualism 197-220 and Leo Strauss Natural Right and History (Chicago, University of Chicago Press, Phoenix Books 1965)240-5. 1 Locke Second Treatise sects. 37, 45, 50

104 Hobbes and America civil society and is unregulated by social compact: 'It is plain, that Men have agreed to a disproportionate and unequal Possession of the Earth, they having by a tacit and voluntary consent found out a way, how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus, Gold and Silver, which may be hoarded up without injury to any one, these metals not spoileing [sic] or decaying in the hands of the possessor. This partage of things, in an inequality of private possessions, men have made practicable out of the bounds of Societie, and without compact.'2 Locke's justification of an unlimited right of appropriation of land is in conflict with the sufficiency limitation initially laid down. This limitation is that a man has a right to appropriate property 'where there is enough and as good left in common for others.'3 The limitation may be construed against the enclosure movement which produced dislocations in the countryside and in the vicinity of London at periodic intervals in the sixteenth and seventeenth centuries. However, Locke specifically defends enclosure4 and justifies an unlimited right of appropriation of land, concurrently with the introduction of money. The 'inconveniency' which happens to some because of rack rents, dispossession, and the transference of copyholds to leaseholds is offset by the fact that the total supply of wealth in society is increased through enclosure.5 If there is not enough and as good land left for others, so the argument goes, there is enough and as good (indeed a better) living left for others.6 Finally, the limitation on self-labor is removed by other parts of Lockean theory. Locke appears to establish that a man may appropriate only as much property as he has set apart through his labor.7 Elsewhere, he assumes that payment of a wage gives a master title to the labor of his servant and, consequently, a right to the goods set apart through the labor of his servant.8 Ownership of the labor of one's servant is casually assumed in passages such as the following: 'Thus the Grass my Horse 2 3 4 5

Ibid. sect. 50 Ibid. sect. 27 Ibid. sect. 37, 50 Leo Strauss draws the inference that the emancipation of acquisitiveness is not merely compatible with general plenty, but the cause of it. Therefore 'unlimited acquisition without concern for the needs of others is true charity.' See Strauss Natural Right and History 243 -4. 6 See Macpherson Possessive Individualism 211-12. 7 Locke Second Treatise sect. 27 8 Ibid, sects. 28, 85

105 The Lockean connection has bit; the Turfs my Servant has cut, and the Ore I have digg'd in any place where I have a right to them in common with others, become my Property, without the assignation or consent of any body. The labour that was mine ... hath fixed my property in them.' 9 From this analysis, it is plain that Locke justifies an absolute right of property appropriation on behalf of the individual. Locke replaces the natural law, which seeks to reconcile personal acquisitiveness with the needs of social order, with a law which sanctions personal acquisitiveness, whatever its consequences for social order. If we ask why Locke used the language of a political tradition unsuited to his basic doctrines, an answer suggests itself. Locke, himself a member of the gentry and associated with influential commercial men, used the language of natural law, rhetorically, to support the property rights of the landed gentry and the commercial classes. These classes had become comfortable with the language of natural law and used it indiscriminately to justify their wealth, both inherited and acquired, which all flowed from the Henrician reformation.1 Locke may have been unaware of the clash between his teaching and the content of natural law, but careful attention to his doctrine reveals that natural law concepts are surreptitiously revolutionized.2 Locke, then, endows the individual in the state of nature with an absolute right of property appropriation. Locke also invests individuals in the state of nature with a corollary right to punish and exact reparations from those who violate 'the laws of nature.' Locke's doctrine of a natural 'executive right' provides another test of his conformity with the principles of natural law tradition. Locke states that the right of exacting reparations belongs only to the injured party; the right of inflicting punishment belongs to all.3 The extent of reparations which an injured party can inflict includes killing where the offence committed 9 Ibid. sect. 28 (italics mine) 1 For a discussion of the vagueness of natural law and to whose benefit it accrued, see Christopher Hill The Century of Revolution (New York, W.W. Norton & Co. 1961) 66-8. Locke placates the propertied classes among the Whigs by arguing for both an inherited and a natural right to property (Second Treatise sects. 27, 73). For a further discussion of this point see below. 2 Less charitable interpretations of Locke state that he was quite aware of the conflict between his own doctrine and the natural law and that his constant reference to natural law is a deceit practised to obscure his relation with Hobbes. See Richard Cox Locke on War and Peace (London, Oxford University Press 1960) 21 and Strauss Natural Right and History 246. 3 Locke Second Treatise sect. 11

106 Hobbes and America justifies it, such as, for example, theft of a horse or coat.4 Anxiety, uncertainty, and fear, Locke says, are the natural consequence where private persons function as judges and executives in their own case.5 Men are partial in their own case and are motivated by passion, ill nature, and revenge to carry their judgments against others too far.6 There is no enjoyment in the possession of property in the state of nature because of the prevailing condition of insecurity, 'for all being Kings as much as he, every man his equal, and the greater part no strict observers of Equity and Justice, the enjoyment of the property he has in this state is very unsafe, very unsecured 7 Locke's discussion of a natural right of punishment supports the view presented above that Locke revolutionizes the tradition of natural law. Locke's position is that each man in the state of nature is an authority with respect to punishment. Then when Jones says 'Martin deserves punishment' and Smith says 'Martin does not deserve punishment,' they are both, if equally conscientious, issuing binding judgments. But this is incoherent. Where everyone is said to be an authority, the concept of authority, as Hobbes stated, operates without sense.8 It is clear that in the absence of an external standard of right, punishment cannot be distinguished from damage. Locke's insistence that punishment must be conscientiously applied does not distinguish his view from Hobbes's, because mere conscientiousness, as Hobbes knew, does not give a man the authority to punish.9 The white racist who organizes his compatriots to lynch a Negro for the 'crime' of befriending a white woman would surely allege that he was acting in the interest of all mankind, or at least of all white men.1 Locke's defense of an executive right, therefore, is a defense of a right to inflict damage when life or property are threatened. Hobbes 4 5 6 7 8

Ibid. sect. 19 Ibid. sect. 136 Ibid. sect. 13 Ibid. sect. 123 For an excellent discussion of this point and related issues see Jeffrie G. Murphy 'A Paradox in Locke's Theory of Natural Rights' Dialogue September 1969, 256-71. 9 Hobbes Leviathan 354: 'Neither private revenges, nor injuries of private men, can properly be stiled Punishment; because they proceed not from publique Authority.' 1 In this connection we may note that Locke found the capture and sale of Negroes on the African coast consonant with the natural law. He said that the Negroes were captives taken in a just war and that they had forfeited their lives 'by some act that deserves death' (Second Treatise sect. 24 and see footnote).

107 The Lockean connection and Locke agree that it is fair to construe theft as an attempt on one's life and to respond to the maximum degree.2 It seems obvious that Locke vie ws the 'laws of nature 'as instrumentalities to advance the unlimited right of individuals. The cumulative effect of the right of property appropriation and the corollary right to inflict punishment and reparations is to make the individual the sole judge of the means conducive to his preservation. Such a position is identical with the Hobbesian view that the rights of the individual are absolute. Lockean natural law conceals operative realities which are Hobbesian. Having shown that Locke does not belong to natural law tradition, let us now compare his theory of government with that of Hobbes. Symmetry is achieved by comparing Hobbes's and Locke's theory of the source, nature, and limits of public authority. Hobbes, we saw, traces the source of public authority to the private need of independently situated political actors, each of whom is vested with a prior, if not necessarily superior, right of self-aggrandizement. Secondly, public order is an indispensable convenience, a mere artifact after the manner of home plumbing fixtures. Public order is of no value in itself, but in the absence of a non-private (common) good transcending the private need of individual actors public order acquires a surrogate political value. Public order is created by consent, but it is maintained by sanctions, or by threat of sanctions. Finally, according to Hobbes, the authority exercised by public officials is absolute but it is not arbitrary. Public authority must be absolute because there must be in society a determinate person, or body of persons, responsible for saying what the law is. Public authority is not arbitrary because it is limited by the object of its institution and according to its mode of action. The existence of a private need for public order is demonstrated by Locke through the literary device of imagining away the presence of constituted authority, while retaining dominant characteristics of the political culture. The concept of political culture found in Locke's discussion of the state of nature retains Hobbes's dominant motif of the self-destructive tendencies of Protestant-bourgeois society while differing in some interesting details. Hobbes, whose chief works were written at the high tide of the Puritan revolution, grasped more clearly than Locke that the creative energies of the Protestant middle class were fed by the circulation of Hebraic Biblical ideas in society. Hobbes tended to see a substantial identity between the energies which animated the 2 Hobbes Leviathan 184 and Locke Second Treatise sect. 19

108 Hobbes and America Presbyterian divine exhorting his flock from the pulpit and the energies which stimulated the entrepreneur to exploit opportunities provided by an open market economy.3 Glory, no less than competition, was a cause of the deterioration of the Protestant culture into a state of war.4 Writing in the Restoration period, some time after the tide of the Puritan revolution had crested, Locke shows less anxiety than Hobbes over the animosities stirred by religious conflict and less sensitivity to the inspiration provided by the Bible to Protestant-bourgeois culture. Locked philosophy reflects changes in the evolution of the Protestant ethic observed and commented upon by Tawney and Weber.5 They state that in the seventeenth and eighteenth centuries Calvinist groups underwent a significant change in outlook and behavior. The driving force which had been enlisted in the service of religious ends was now transferred to social and economic concerns. Instead of the preoccupation with salvation, thought and activity was directed to getting ahead in the world. Locke was in sympathy with the new trend in attitude: 'We are not born in heaven but in this world, where our being is to be preserved with meat, drink, and clothing, and other necessaries that are not born with us, but must be got and kept with forecast, care, and labour, and therefore we cannot be all devotion, all praises and hallelujahs, and perpetually in the vision of things above ... ' 6 For Locke, the spokesman of the narrowing commercial drive of the Protestant middle class, the sources of interpersonal conflict center on the objects of commercial rivalry. Competition and Glory are both important elements in the Protestant-bourgeois syndrome for Hobbes, whereas for Locke Competition alone is productive of the state of war. Locke defines the state of war as a frequent incidence of the use of force without right, a definition which conforms to the circumstances described above.7 Tacitly acknowledging that the final tendency of the 3 Thomas Hobbes Behemoth vol. 6 of The English Works of Thomas Hobbes collected and ed.by Sir William Molesworth (London, John Bohn 1966) 33 4 Hobbes Leviathan 185 5 See R. H. Tawney Religion and the Rise of Capitalism (New York, Mentor Books 1963) 191 and Max Weber The Protestant Ethic and the Spirit of Capitalism tr. by Talcott Parsons (New York, Charles Scribner's Sons 1958) 175. 6 As quoted in Sheldon Wolin Politics and Vision: Continuity and Innovation in Western Political Thought (Boston, Little, Brown & Co. 1960) 298 7 The conclusion that the state of war is the outcome of the state of nature is also reached by Richard Goldwin 'John Locke' in Leo Strauss and Joseph Cropsey (eds.) The History of Political Philosophy (Chicago, Rand McNally & Co. 1963) 436-52 and by Cox Locke on War and Peace 84-5. For a reply to Cox and

109 The Lockean connection state of nature is the state of war, Locke states that 'the State of War is excluded' only 'where there is an Authority, a Power on Earth from which relief can be had by appeal... and the Controversie is decided by that Power.'8 Locke agrees with Hobbes that political society without the presence of constituted authority declines into a chaotic conflict of private wills. Locke's discussion has shown that man without civil society is alone and insecure. The insecurity of man arises from his isolation and from the consequence that inequalities in talents and industry result in inequality in possessions. The condition of man's isolation is irremediable, but the anxiety of man without civil society can be reduced by a creative act. Man enters into a covenant relationship, each man with every other man, to transfer his independent right of self-rule to a political society in exchange for security of property and person. A man will continue to be alone, but where there is the presence of constituted authority he will have less need to be afraid. Public order is created by covenant relationships between each individual and every other individual patterned after the transactional relations of a commercial society.9 Public order is, therefore, an artifact. It is the deliberate creation of a multitude of individuals for their own convenience. Although public order is created by the consent of individuals, it is maintained by sanctions, or by threat of sanctions. Locke states 'Political power then I take to be a Right of making Laws with Penalties of Death, and consequently all less Penalties, for the Regulating and Preserving of Property.'1 In the covenant relationship, the parties to the covenant exchange promises to give up the executive right of the state of nature and to vest this right in the community. 2 Locke denies that the individual is divested of the right of property appropriation by the covenant.3 The political society created by the covenant is not an organic community representing a real concord of wills, but an artificial body de-

8 9 1 2 3

Goldwin see Richard Ashcraft 'Locke's State of Nature' American Political Science Review September 1968, 62: 898-915. Locke Second Treatise sect. 21 Locke Second Treatise sects. 14, 99. John Plamenatz observes that 'becoming a member of society is, indeed, conceived of by Locke as something very much akin to making a bargain.' See Man and Society 1: 223-4. Locke Second Treatise sect. 3 Ibid, sects. 87, 95, 130 Ibid, sects. 130, 131

110 Hobbes and America pendent upon majority rule to conclude its deliberations.4 Majoritarian democracy, or popular sovereignty, in both Hobbes's and Locke's philosophy is an intermediate stage on the way to vesting sovereignty in a determinate office or pattern of offices.5 Locke's discussion of the distribution of the powers of public office proceeds on the assumption that political society, which is an incipient and temporary sovereign, deliberates, for a space of time, on the set of political institutions in which to vest its sovereign power. The most important of the powers of the sovereign is the legislative power and the chief subject of these deliberations is where it should be located: 'For the Essence and the Union of Society consisting in having one Will, the Legislative, when once established by the Majority, has the declaring, and as it were keeping of that Will. The Constitution of the Legislative is the first and fundamental Act of Society, whereby provision is made for the Continuation of their Union under the Direction of Persons, and Bonds of Law made by persons authorized thereunto by the Consent and Appointment of the People.'6 Locke's grasp of the indispensable logical function performed by the principle of absolutism is shown by his emphatic warning against vesting less than absolute authority in political institutions.7 His discussion of the origins of political institutions shows that the absolute authority possessed by the individual in the state of nature is transferred to primitive political society and then conveyed, in a final step, to the legislative power. The distribution of the power(s) of public office, a subject occupying the attention of a primitive political society, will be taken up below. Here I wish to emphasize that the scope of authority of the government, precisely as in Hobbesian theory, is to be absolute. The distribution of the powers of public office is a political principle, involving an attempt to reconcile the conflicting rights of sovereign and 4 Ibid, sects. 97, 98 5 Leo Strauss draws the inference that both Hobbes and Locke are the exponents of 'popular sovereignty.' See Strauss Natural Right and History 232. This inference is substantially correct, but it is necessary to distinguish the doctrine of Hobbes and Locke from that of Rousseau. For Rousseau, the popular will cannot be calculated by the simple addition of private wills in society and it is a permanent and permanently acting sovereign. For Hobbes and Locke, the people are sovereign only once and for an instant of time, in the constitution of civil society, and the only means of determining the popular will is through the will of the majority. 6 Locke Second Treatise sect. 212. Compare Hobbes Leviathan 228. 7 Locke Second Treatise sects. 21, 87, 212

I l l The Lockean connection subject. The authority of public office is a legal principle which maintains that the sovereign must have the equivalent of the absolute right claimed by the individual in the state of nature.8 The absolute authority of the legislative power and of primitive political society is upheld by Locke on the grounds of Hobbes's central teaching, that where private rights are pushed to their utmost extent, public authority must be empowered to settle absolutely conflicts of private right: 'The Community comes to be Umpire, by settled standing Rules, indifferent, and the same to all Parties; and by Men having authority from the Community, for the execution of those rules, decides all the differences that may happen between any Members of that Society, concerning any matters of right ... Civil Society being a State of Peace, amongst those who are of it, from whom the State of War is excluded by the Umpirage, which they have provided in their Legislative, for the ending all Differences, that may arise amongst any of them, 'tis in their Legislative, that the Members of a Commonwealth are united, and combined together into one coherent living Body.' 9 Locke's grasp of the indispensable, logical function performed by absolutism is balanced by a stress on the principle that the sovereign is supreme only within an authorized sphere of action. Consistently with his statement that the executive right alone is transferred in the covenant,1 Locke declares that the sovereign may rightfully command us to give our life in battle, but may justly be resisted if, without the consent of the subject, he seeks to take 'one penny of his Money.' In a dramatic passage in a treatise otherwise notable for its drabness, Locke shows that the authority of the sovereign is absolute, but it is not arbitrary: 'And to let us see, that even Absolute Power, where it is necessary, is not Arbitrary by being absolute, but is still limited by that reason and confined to those ends, which required it in some Cases to be absolute, we need look no farther than the common practice of Martial Discipline. For the Preservation of the Army, and in it of the whole Common8 For confirmation of this view see Alexander Passerin D'Entreves The Notion of the State (Oxford, Clarendon Press 1967) 114-22, 206-9, John Courtney Murray We Hold These Truths (New York, Sheed & Ward 1960) 307-8, and Charles Howard Mcllwain Constitutionalism: Ancient and Modern rev. ed. (Ithaca, Cornell University Press 1947) 141-4. 9 Locke Second Treatise sects. 87 and 212 1 Ibid, sects. 87, 95, 130. In an apposite doctrine, Locke declares that conquest provides absolute dominion over the lives but not the property of the conquered. See ibid. sect. 178.

112 Hobbes and America wealth, requires an absolute Obedience to the Command of every Supérieur Officer, and it is justly Death to disobey or dispute the most dangerous or unreasonable of them: but yet we see, that neither the Serjeant, that could command a Souldier to march up to the mouth of a Cannon, or stand in the Breach, where he is almost sure to perish, can command that Soldier to give him one penny of his Money.'2 Public authority is also limited according to its mode of action. Insofar as the sovereign adjudicates the law, he will follow settled, standing law, because the essence of the state is law.3 A subject who commits an act which is lawful under statutes then in force has authority from the sovereign for what he does. The sovereign will not make unnecessary laws because the liberty of the subject consists in those things which are not regulated by law. Freedom, Locke says, is 'a Liberty to follow my own Will in all things, where the Rule prescribes not.' 4 The sovereign will not make inequitable laws because the authority of the sovereign is derived in an equal degree from each and every one of the members of society. There is to be 'one Rule for the Rich and Poor, for the Favourite at Court, and the Country Man at Plough.'5 The purpose of the law, Locke says in a passage carrying echoes of Hobbes, is to provide a framework of order within which the members of society can pursue happiness without fear of injury, 'that ill deserves the Name of Confinement which hedges us in only from Bogs and Precipices.'6 There is no better illustration of the witticism 'Locke is ambiguous; you can pick your "Locke"' than Locke's discussion of the locus of sovereignty. I have been maintaining that Locke vests the power of sovereignty in the Legislature. Alongside this view must be placed the passages where Locke states that the Legislature has only 'a Fiduciary power to act for certain ends' and that the 'Community perpetually retains a Supream Power of saving themselves from the attempts and designes of any Body.' 7 Despite the reiteration of this doctrine,8 Locke, 2 Ibid. sect. 139. Locke seems to be here acknowledging that absolute power is really implicit in all governments, as can be seen in the case of officers who are granted absolute powers, temporarily, in time of war. For only a government possessing absolute power can grant it even temporarily. 3 Ibid, sects. 137, 212 4 Ibid. sect. 22 5 Ibid. sect. 142 6 Ibid. sect. 57 7 Ibid. sect. 149 8 Ibid, sects. 222, 226

113 The Lockean connection in contrast to Rousseau, guards against the notion that the Community is a permanent and permanently acting sovereign. He states that 'this Power of the People can never take place till the Government be dissolved,'9 and he is unmistakably alarmed by the possibility that political society will be unable to survive the dissolution of the government. 'When the Legislative is broken, or dissolved, Dissolution and Death follows/1 Locke warns. The problem is that Locke is unable to decide whether the locus of sovereignty is in the community or in the state. He oscillates between these two possibilities as policy dictates which is most likely to promote the advantages of comfortable preservation for which men entered into civil society. This contradiction is resolved if we reflect that, in Locke, the Hobbesian Leviathan is beginning to emerge, for the first time, more as a social than a political structure. The coercive sovereign of Hobbes is transferred to the social realm operating externally as the judgment of others and internally as the commands of the super-ego. While the political sovereign installed in the office of the state continues to function through an appropriate use of sanction, he is reinforced in his position by a parallel authority, acting in the social sphere, committed to the values and institutions of commercial Protestantism. The principal agency through which socialization occurs in Locke is parental authority, especially the father. Locke states that there are 'two Powers, Political and Paternal.'2 Although he carefully notes that paternal power does not include a right 'to make Laws, and inforcing them with Penalties that may reach Estate, Liberty, Limbs and Life,' 3 nevertheless the influence of the parents is extensive. The father controls the children, including their political views, through his control over patrimony. The inheritance of the father is often settled by the law and custom of the country, 'yet it is commonly in the Father's Power to bestow it with a more sparing or liberal hand, according as the Behaviour of this or that Child hath comported with his Will and Humour ... By this Power [over inheritance] indeed Fathers oblige their Children to Obedience to themselves, even when they are past Minority, and most commonly too subject them to this or that Political Power.'4 9 1 2 3 4

Ibid. sect. 149 Ibid. sect. 212. Also see sects. 21, 227. Ibid. sect. 71 Ibid. sect. 69 Ibid, sects. 72, 73

114 Hobbes and America The need for a coercive sovereign in the political sphere diminishes with the introjection of the values of commercial Protestantism into the super-ego. This development in Locke's theory may place him closer to the prevailing American ideology which, for reasons which are understandable, is distinctly more comfortable with social rather than institutional forms of coercion. Nevertheless, while Locke may make us more comfortable with the role of coercion, his views on coercive power are not substantively different from those of Hobbes. The purpose for which coercion is applied remains the same - to sustain the values of commercial Protestantism and liberal-democratic institutions. But the form through which coercion is applied has altered. The Hobbesian Leviathan has metamorphosed from a political into a social structure. Fear remains an element of consent to political institutions but it is disguised from view, except when fathers chasten their sons, because it is invisibly applied through the pressures of the super-ego.5 Even so, Locke leaves no room for doubt that the political sovereign will continue to hold sway, perhaps especially on those occasions when parental authority has failed to produce submission. To return to the locus of sovereignty, the community and the state are, for Locke, coeval and mutually reinforcing authorities instituted to preserve liberal democracy and commercial Protestantism. A sobering reflection on this development is that the authority of the Lockean Leviathan is far more extensive than the sovereign proposed by Hobbes. The Hobbesian Leviathan requires a rule of action merely, never meddling in affairs of conscience and private belief.6 The Leviathan installed by Locke superintends the innermost details of our lives from childhood. There is more than a whiff of repression in Locke. How are the children to be protected against the trauma of Locke's parental sovereign? What if the political sovereign usurps the functions assigned by Locke to parents? As will be seen when we consider William Graham Sumner in the following chapter, Locke's theory of parental power and community sovereignty anticipates the process by which Leviathan is transmuted into its specifically American form. 5 Freudian analysis is brilliantly applied to Locke's political theory in an article by James Glass 'Schizophrenia and Perception: A Critique of the Liberal Theory of Externality' Inquiry 15: 114-45. The interpretation of Locke on this page is heavily influenced by this article. 6 Hobbes Leviathan 700

115 The Lockean connection We are now prepared to consider whether the philosophy of constitutionalism extrapolated from Locke by the Founding Fathers is the Hobbesian constitutional philosophy. Before analysis of the thought of the Founding Fathers, we must consider a final objection to Hobbes's influence on Locke - Locke's doctrine of separation of powers apparently conflicts with Hobbes's emphasis on the absolute and unitary power of the sovereign. I believe that Locke's argument for separation of powers does not involve disagreement with Hobbes concerning the nature of sovereignty but concerning the organization of the power of sovereignty. The power of the state, for Locke as well as for Hobbes, is absolute and unitary. Locke states that there is 'one, Supream Power, which is the Legislative, to which all the rest are and must be subordinate.' 7 Unlike Hobbes, Locke preferred that sovereignty be vested in separate offices sharing in the power of the state, rather than in a single office, but the principle of the absolute authority and power of the state is upheld. In accordance with this view, Locke states that the Legislative is 'placed in the Concurrence of three distinct Persons,'8 the monarchy, and offices of a representative and hereditary assembly. None of the several governmental institutions is supreme because each must have the concurrence of the others to act. When the several offices of government concur in the exercise of power, the liberty of the subject is as much restricted as under any form of government. There is one government possessing absolute authority and power but the use of the sovereign power is divided among several political offices. Locke is not in disagreement with Hobbes about the principle of sovereignty, but on how it is to be implemented. Locke's preference for separate institutions sharing power indicates a substantial amount of agreement with Hobbes about the principles to be employed in organizing the power of the sovereign. Hobbes originated the notion that public power should be organized to channel selfinterested calculations of rulers and ruled toward identities of interest. Hobbes's defense of monarchy is based on the beneficial secondary 7 Locke Second Treatise sect. 149 8 Ibid. sect. 213. Locke is here using the term 'Person' in the technical sense employed by Hobbes as an office of the state. Locke states that the monarchical executive, for example, is a 'publick Person, vested with the Power of the Law' (Second Treatise sect. 151).

116 Hobbes and America effects of royal egoism. The self-interest of each and every member of society is served, in most cases, by vesting power in a monarch because the safety and prosperity of the commonwealth advances that of the monarch.9 The vesting of power in the single office of the monarch is also less likely to perpetuate the conflicts of private right that sovereignty was meant to end.1 In essence, Hobbes urged that political theory turn away from efforts to control the causes of self-interested political activity to efforts to blunt the less wholesome of its effects.2 The tendency of Hobbes's argument is in conflict with natural law tradition because it surrenders the notion of a public interest separable from and superior to the interests of private men, and because it rejects the notion of conforming private interests to a public purpose. Classical tradition taught that the public good is implemented through educating men to regard themselves as selfless instruments of a social purpose.3 Having rejected the notion of a non-private or common good, Hobbes and his successors have the urgent task of finding ways of controlling the effects of self-interested political activity. Hobbes's defense of monarchy has the ring of modernity because the principles of the argument were later to shape Locke's and Madison's arguments in behalf of separate institutions sharing power. Hobbes would emphatically agree with the aphorism of Madison 'The causes of faction cannot be removed ... relief is only to be sought in the means of controlling its effects.' 4 The rationale provided by Locke for separate institutions sharing power has much in common with Hobbes's theory of state power.5 Locke's discussion of the best plan for the distribution of the power of the state proceeds on the assumption that political society deliberates 9 Hobbes Leviathan 241-3 1 Ibid. 309. These views are fully discussed in the previous chapter. 2 This concept is developed by J. A.W. Gunn Politics and the Public Interest in the Seventeenth Century (Toronto, University of Toronto Press 1969) 65, 107-8. 3 See Wolin Politics and Vision 51-5. 4 The Federalist intro. by Edward Mead Earle (New York, Random House, Modern Library, n.d.) 10: 57 5 The phrase 'separate institutions sharing power' is derived from Richard E. Neustadt Presidential Power (New York, John Wiley & Sons 1960) 33. The phrase 'separation of powers' is a misnomer because the power of the state, in all cases, is absolute and unitary. Separation of powers implies that the power of the state is divided among separate institutions which thereafter exercise 'separated powers.' But in fact it is not the power of the state but the use of that power which is divided. Therefore, 'separate institutions sharing power' conveys the meaning of the concept which Locke is putting forward.

117 The Lockean connection on a set of political institutions in which to vest the sovereign power.6 Locke states that the executive and federative power should be vested in the office of the monarch; 7 the legislative power should be lodged in the office of a representative assembly.8 The monarch will share in the exercise of the legislative power; conversely the representative assembly will share in the exercise of the executive and federative power.9 The rationale for separate institutions sharing power, Locke says, is that it hinders the monarch from using the 'Force, Treasure, and Offices of the Society, to corrupt the Representatives, and gain them to his purposes,'1 and it makes it difficult for the members of the assemblies to 'suit the law, both in its making and execution, to their own private advantage.'2 Locke's rationale for separate institutions sharing power agrees with the Hobbesian principle of organizing public power to channel selfinterested calculations of rulers and ruled toward identities of interest. Also, it preserves the absolute authority of the sovereign in managing social conflict. Hobbes's original contribution to liberal constitutional tradition is the thesis that where private rights are pushed to their utmost extent, public authority must be empowered to settle absolutely conflicts of private right. Although this proposition resolves the legal problem of the conflicting rights of sovereign and subject, it does not confront the problem that the sovereign is vested not only with an artificial right of rule (by virtue of the covenant), but also with a natural right to exploit the powers of his office to serve his own need or those of his political clientele (arising from the circumstance that the sovereign is not a party to the covenant). Locke was the first to see that separating the use of the sovereign power among several offices provided a technique for reducing the scope of power available to any given official (thereby moderating the scale of corruption) and for checking the exercise of power with power (thereby, in theory, achieving the mechanical resultant of non-tyrannical rule). Since the doctrine of separate institutions sharing power discourages corruption and tyranLocke Second Treatise sect. 212 Ibid. sect. 148 Ibid. sect. 143 Ibid, sects. 151, 153 Ibid. sect. 222. Locke's complaint is directed against the activities of James II. See Frederick George Marcham A Constitutional History of Modern England (New York, Harper & Row Publishers 1960) 157. 2 Locke Second Treatise sect. 143

6 7 8 9 1

118 Hobbes and America nical rule, it organizes public power to preserve the liberties of the subject and to preserve the absolute authority of the sovereign in the management of social conflict. Locke's doctrine of separate institutions sharing the power of the state furthers ends of which Hobbes would have approved and which only apparently depart from his own. Locke's theory of separation of powers is usually thought to confirm his place in the teaching of natural law tradition. Historically, natural law tradition advocated a 'mixed' constitution consisting of a monarchical executive, an aristocratic judiciary, and a popular body with the power of the purse. The accepted rationale for mixed government is provided by Aristotle, who states that it constitutes a just solution to conflicting claims to political rule advanced by differing social classes. Mixed government provides an ideal solution to claims advanced by social elements in possession of wealth and talent, on the basis of distributive justice (equals to equals), and to the claims of social elements possessing numbers, the mass, on the basis of commutative justice (to each alike).3 Since mixed government incorporates both principles of justice, it promotes justice and social stability at once. Locke would seem to agree with this view, for he supposes a form of government consisting of a hereditary monarchical executive, an assembly of hereditary nobility, and an assembly of representatives chosen by the people.4 This view overlooks the fact that Locke distributes the use of the power of the state among a pattern of offices, not among social classes in English society, and that the object of the distribution of sovereign power is to protect the negative liberties of the subject, not to provide an ideal solution to conflicting claims to class rule. Locke does, to some extent, view the right of the individual as absorbed by the right of the class of which he is a member, but the principal thrust of his theory is the rights of possessive individualism. The individual is the sole owner of his talents and labor, owing nothing to society for them. If the right of organic social groups were superior to and absorbed the right of the individual, then Aristotle's doctrine of mixed government would assist in explaining Locke's preference for separate institutions sharing power. But the sources of Locke's argument are, instead, rooted in an Hobbesian emphasis on the absolute right of the individual. As I have shown, 3 The Politics of Aristotle, ed. and tr. by Ernest Barker (New York, Oxford University Press 1962)bk.3,ch.9 ; bk.4, ch.ll; bk.5,ch. 1 4 Locke Second Treatise sect. 213

119 The Lockean connection Locke accepted Hobbes's basic postulate that the state must have the equivalent of the unrestrained sovereignty that belongs to each man in the pre-political state. But he adds the further postulate that separating the use of the power of the state among several offices prevents the sovereign from undermining the covenant on which his authority rests. It is conceivable that Hobbes would have accepted the principle of separation of powers if he had been aware of the ingenious uses to which it might be put.5 The unfortunate experience of England with the principle of rex in parlementum prior to the period of the Civil Wars, as well as other considerations which have been discussed earlier, pointed Hobbes in a different direction. He ignored the 'wisdom' of imposing institutional checks on the power of the sovereign and promoted the concept that sovereignty ought to be vested in a determinate office.6 At the time of the restoration of Charles n to the throne, Locke was in agreement with Hobbes's preference for monarchical government. But the conduct of James n later suggested to him a different policy in the distribution of the powers of public office. The thesis that Hobbes is the parent source of American constitutional philosophy has now been tested against several major objections. I have shown, first, that Locke, unlike Hobbes, does not possess a theory of revolutionary change in society and that, properly considered, Locke is a spokesman for conservative rebellion merely, not for social revolution. Locke is a revolutionary political thinker only in his role as a vehicle of Hobbesian constitutional philosophy. Second, I have shown that Locke's views on the source, nature, and limits of public authority are, for the most part, the same as those of Hobbes, and that on some points, such as the right of property appropriation, Locke is more at variance with natural law than Hobbes. Natural law has a rhetorical rather than a substantive role in Lockean theory. Primarily, its function is to screen the operative realities of Hobbesian politics from public view. The true issue 5 Hobbes's rejection of the concept of mixed government should not be confused with a rejection of separation of powers. Mixed government establishes rival authorities over the body politic in order to provide a just solution to conflicting claims to class rule. In Hobbes's view the existence of rival authorities is the very definition of a state of war and not a form of government at all. Separation of powers, I have said, accepts the principle of a supreme governing authority, but seeks to amend this position by the further postulate that separation of powers is essential to the protection of personal liberties. 6 Hobbes Leviathan 372

120 Hobbes and America is the form, not the substance, of Locke's transmission of Hobbesian constitutional principles into American political tradition. While providing an augmented role to social forms of coercion and differing with respect to the institutional pattern of sovereignty (though not its nature), the weight of evidence is that Locke transmits a lackluster version of the Hobbesian constitutional system to America.

6 American constitutional philosophy: Madison, Thoreau, Calhoun, and Sumner

The concept of a chain of influence connecting Hobbes to Locke and the Founding Fathers is strengthened by these considerations. First, American political society, especially in the beginning, was extraordinarily congenial to the chief doctrines of Hobbes's and Locke's philosophy. The physical geography of American and its social composition provided Hobbes's and Locke's portrait of the origins of civil society with touches of verisimilitude denied them by the class structure of England. Louis Hartz writes that in America 'history was out on a lark, out to tease men, not by shattering their dreams, but by fulfilling them with a sort of satiric accuracy.'1 Political culture in America was formed by selecting from the larger world of values those special ones congenial to the circumstances of early American society. The frontier was a 'state of nature' extending opportunity to 'the industrious and the rational' to appropriate in the standard fashion approved by Locke of grabbing and holding on unlimitedly.2 The conditions of natural equality envisioned by Hobbes and Locke were far more perfectly realized than in English society. In isolation, the culture proceeded to make its selected values radical individualism and minimal government - into a total ideology which could not be challenged, or even questioned. These unique historical circumstances had a profound and far-reaching influence on the ethos underlying American political institutions. The Lockean image of a social compact formed by 'isolated and hostile individuals' became 1 Louis Hartz The Liberal Tradition in America (New York, Harcourt, Brace & World 1955)60 2 Henry Nash Smith Virgin Land (New York, Vintage Books 1950) ch. 22

122 Hobbes and America (and still remains) the 'only contractual metaphor that comprehended American social reality. ' 3 A second reflection strengthening the interpretation of a chain of influence connecting Hobbes to Locke and the Founding Fathers is that the American 'revolution' did not introduce novel principles of authority into society. It was not, in real substance, a revolution. The American revolution is best understood, in conformity with the theories of Hobbes and Locke, as a conservative, colonial rebellion. Revisionist historians are in general agreement that the American revolution involved no change in the principles on which government was constituted nor in the composition of American society. It is emphasized that the composition of American society was no different after the revolution of 1776 than it was before. Becker was wrong when he asserted that 'the question of home rule' was followed by the question 'who should rule at home.'4 The American revolution involved an effort not to democratize an aristocratic social order but to preserve 'an already existing democratic social order.'5 The salient characteristics of colonial society were 'much economic opportunity, a broad franchise, representation that favored agricultural areas, educational facilities that favored the common man, and much religious freedom.'6 The constitution served the goals of diverse social and economic interests in the country, rather than those of a particular class. The attempt by progressive historians to inject class struggle into the American revolution and the formation of the constitution are overshadowed by evidence indicating an absence of class distinctions and social change. These reflections point to the conclusion that the American revolution was, in substance, a conservative, colonial rebellion, not a social revolution. Revolution is a misnomer because the colonists were only seeking to restore the status quo ante. One revisionist flatly states 'The American Revolution occurred because Americans were reasonably satisfied with the status quo and did not want Britain to change it.'7 If the formula of rebellion is adopted, then the Hobbesian theory of politics is an entirely satisfactory explanation of the war between the colonies and Great 3 Gordon S. Wood The Creation of the American Republic: 1776-1787 (Chapel Hill, NC, University of North Carolina Press 1969) 601 (italics mine) 4 Robert E. Brown Reinterpretation of the Formation of the Constitution (Boston, Boston University Press 1963) 20 5 Ibid. 21 6 Ibid. 19 7 Brown Reinterpretation 21

123 American constitutional philosophy Britain. Hobbes had shown that the subject has a right of resistance when the sovereign has denied him safety in the enjoyment of essential rights. He stated that the subject has a further right to ally himself with others to assure the success of his resistance. As I have argued, the conclusion seems warranted that Hobbes would view a successful rebellion against an unpopular sovereign as self-legitimating. Locke's theory of revolution turns out, on inspection, to be no different from Hobbes's case for successful rebellion. The American 'revolution,' therefore, is more accurately viewed as an instance of rebellion, restricted as it was to extracting short-term gains from presently constituted authority. A new emphasis of this chapter will be to show that the social influence of the fathers has effected a pre-formation of the national political consciousness. Until this point this volume has relied upon the works of empirical theorists and selected master theorists to provide information on the ideals, origin, nature, and predicament of the philosophy of liberal democracy. While these sources have been of indispensable value in advancing the main argument, the influential role of fathers and surrogate fathers in transmitting the ideals of the liberal-democratic heritage should not be overlooked. In the works of William Graham Sumner, regarded here as one of the patrius patriae, the meaning and operation of the Hobbesian Leviathan are transferred from the political to the social realm. For Hobbes liberalism is precariously sustained by a coercive sovereign operating in the political realm. But for Sumner coercion in behalf of liberal democracy is applied by the fathers, a metamorphosed sovereign, now operating in the social realm. The interpretation of Madison's political thought is handicapped by the role he played in the drafting and defense of the constitution. Madison is chiefly a controversialist, not a political philosopher, and it is difficult to extract from his writings a coherent account of the source, nature, and limits of public authority. He is the source of much confusion, persisting into the present day, concerning the principles of 'dual* sovereignty. To our disappointment, he never engages in a formal analysis of the culture of Protestant-bourgeois society, on which Hobbes and Locke had placed great stress, and he does not seem to have thought very deeply on the principles of legitimate government. Like the pluralists who follow him, Madison is apparently incapable of articulating the purposes embedded in the working arrangements of American politics. I suggested above that the limitations of the American political mentality are to be attributed to the historical circumstances in which

124 Hobbes and America the philosophy of liberal-democratic constitutionalism took root. Neither Madison nor the pluralists have ever been required to defend their ideology against positions differing in a systematic and sustained manner and they have therefore become blind to the idiosyncrasies of their own position. Contrary to many statements made about the intellectual stature of the founding fathers, the writings of Madison and his peers are marked by a timid reluctance to venture beyond the intellectual outlook of their predecessors. The purpose to which Madison directed his best efforts was the implementation of the theory of government contained in Locke's Second Treatise, not the development of any original view of the nature and purpose of civil society. Elements of the account which follow will appear repetitious in the light of the opening chapter's discussion of the operative realities of American politics. The justification for further treatment of Madison lies in the circumstance that his theory of constitutionalism cannot be properly understood without the interpolation of major doctrines of consent, natural rights, sovereignty, and resistance supplied from Hobbes. Not until now has it been opportune to approach Madison from the perspective of the Hobbesian philosophy of constitutional-liberal democracy. An important theme connecting Madison to Locke and Hobbes is that man is an 'independently situated political actor.'For Madison, as for Hobbes, men are constituted in terms of temperament, biography, and intelligence to identify the good for themselves in radically different ways. To cast doubt on the propriety of pursuing self-defined goals of conscience and interest is a meaningless denial of the character and existence of a man. In the famous essay on factions in The Federalist, Madison states that the differentials in the faculties of men lead to differentials in the amount and the kind of property which they possess.8 Differentials in amount divide society into creditors and debtors, the relatively rich and the relatively poor. Differentials in the kind of property which men possess produce factional conflicts between a landed interest, a mercantile interest, a moneyed interest, and a manufacturing interest.9 While we might reasonably expect that Madison is preparing to state that ownership is conditioned by social obligation, or to urge cooperative uses of property, the point he wishes to make is very different. Madison issues a warning against placing any limits on 'liberty.'1 8 The Federalist intro. by Edward Mead Earle (New York, Random House, Modern Library, n.d.) 10: 55-6 9 Ibid. 56 1 Ibid. 55

125 American constitutional philosophy There is an ineluctable tie between a man's 'reason and his self-love,' which makes any restriction on the rights of ownership of property futile and immoral.2 While the chief cause of social conflict is the 'diversity in the faculties of men from which the rights of property originate,' this is not the only cause of social conflict.3 A man has a 'property' of peculiar value in his opinions, especially his religious opinions.4 'A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice,' renders men 'more disposed to vex and oppress each other than to cooperate for the common good.'5 The difficulties which men encounter in reaching agreement on the principles of government and religion are compounded by the obscurities of language. The signification of words differs with different men, as one discovers when addressed by the Almighty: 'His meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.'6 Under these circumstances, each man is his own authority on all points which affect his conscience and interest. There is no external standard by which private good can be measured against the public good. The object of Madison's discussion of conflict among independently situated political actors is to demonstrate a private need for public order. In the state of nature, Madison states, reverting to Hobbesian imagery, both the weak and the strong individual realize a private need for public order. There is general paranoia because 'the weaker individual is not secured against the violence of the stronger,' and because '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.'7 Again, as Hobbes uses the state of nature as a literary device to scare men into acceptance of a civil sovereign, so Madison expertly plays upon the fears of unregulated factional conflict. At the root of factional conflict is 'diversity in the faculties of men,' 8 from which originate differentials in amount and kind of property in society. The sharp conflict among interests in a commercial society makes evident, upon reflection, 2 Ibid. 3 Ibid. 4 James Madison The Forging of American Federalism ed.by Saul Padover (New York, Harper & Row 1953) 267 5 Federalist 10: 55-6 6 Ibid. 37: 230 7 Ibid. 51: 340 8 Ibid. 10: 55

126 Hobbes and America a private need for public order: 'The protection of these faculties is the first object of government.'9 If, as Madison says, 'one nation is to another what one individual is to another/ 1 then it is plain that only Hobbes's concept of a political society constituted through covenants between discrete and hostile sovereign individuals will satisfy the conditions of political creation which have been set forward. Madison retains the Hobbesian concept of sovereignty while altering the method of its implementation in government. For Madison, as for Hobbes, there is one government to which crucial differences ultimately come, and which gives, as the authority of the last resort, the ultimate and final decision. The Hobbesian view of the locus of sovereignty is that it is vested in a single office, the office of the monarch. In Madison's theory, the power and authority of the sovereign is vested in a pattern of offices, but the principle of the absolute authority and power of the one government is upheld. In Hobbes's view, there is one government in which a single actor, authorized by the covenanting multitude, exploits the powers of his office for his private advantage. In Madison's theory, there is one government in which many actors participate, each of whom seeks to make the powers of public office work for himself and each of whom, therefore, checks the exercise of power by all the rest. Madison's support of the principle of the absolute and unitary power of the one sovereign government is to be inferred from his account of the sources of public authority, from his denial of the principle of 'dual' sovereignty, and from his rejection of the notion that the Constitution created separate institutions exercising separated powers. Having shown in my preceding remarks that for Madison, as for Hobbes, there exists a logical need for a political sovereign authorized to settle finally conflicts of interest among the members of society, I shall pass to a consideration of 'dual' sovereignty and separation of powers. The concept of dual sovereignty rests upon the principle that the people of the United States have vested sovereignty in a pattern of law creative of two governments (federalism), each supreme within its authorized sphere of action. One government operates in a national territorial sphere over matters national in scope and the other government operates in a local territorial sphere over matters local in nature. The doctrine of separation of powers is that each of the several branches of government exercises a grant of power distinct from the others. 9 Ibid, (italics mine) 1 Ibid. 62: 405

127 American constitutional philosophy Madison states that it is a false reading of Montesquieu that finds him in support of separate institutions exercising separated powers. Close attention to Montesquieu's writings shows that he approves of an extensive sharing in the exercise of the powers of each department by the others.2 Montesquieu meant that the 'whole power of one department' should not be exercised by the same hands which possessed 'the whole power of another department.'3 But a partial agency in, or control over, the acts of each of the other departments is both necessary and desirable. To give effect to Montesquieu's doctrine no more is required than a ban on plural officeholding and independent modes of determining appointments and salary.4 Separation of powers is, therefore, a misnomer. The powers of office are not separated; their use is. No one of the departments is supreme, for each has a partial agency in the exercise of power by the others and each must have the concurrence of the others to act. The Constitution creates separate institutions sharing power. Madison asserts that not only is a separation of powers between an executive, legislative, and judiciary a misconception, but so is the notion of a territorial separation of power between a government operating in a national territorial sphere and a government operating in a state and local sphere. Here, too, he warns, the demarcations of power outlined in the Constitution create a false impression.5 The laws of the national government will require interpretation and implementation by the officials of the state governments.6 On the other hand, the organization of power at the state and local level will have a decisive influence on the selection of candidates to national political office.7 One should avoid the notion that the Constitution created two governments, each supreme within its authorized sphere of action. Not only is such a theory inattentive to the extensive sharing of power between the two 'governments' but it leads to the pernicious doctrine of dual sovereignty. For Madison, as for Hobbes, dual sovereignty is the very definition of the state of war and not a form of government at all: 'A sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice 2 3 4 5 6 7

Ibid. 47: 314 Ibid. Ibid. 51: 336-7 Ibid. 37:228 Ibid. 45: 302, 303 Ibid. 45: 301

128 Hobbes and America it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy.'8 The conclusion to which these reflections point is that the Constitution organizes the sovereign power of one government among a pattern of offices, each of which shares in the exercise of power by the others.9 The power of the one government, as in Hobbes, is the sum total of the unrestrained sovereignty which in the state of nature is every man's. The officials in whom sovereignty is vested exercise authority in agreement with the general terms of the Constitution, not because they are obedient to a rule of law, but because the Madisonian system keeps the power of each office-holder checked by those with whom he shares power. Madison warns against reposing confidence in a 'demarcation on parchment,' 1 or in 'enlightened statesmen,'2 to preserve the balances of the constitutional system. The protection of liberty should never be entrusted to an enlightened leadership, nor to the restraints on public authority exercised by natural law and an independent judiciary. Instead, Madison proposes to contrive 'the interior structure of government' to preserve a balance of power among contending political actors.3 Liberty is preserved by setting the wolves to guard each other. Madison's account of the source and nature of public authority leads to the profoundly Hobbesian problem of the conflicting rights of sovereign and subject and to a search for means to resolve this problem. Like Hobbes, Madison believed that the design of political institutions should adhere to the criterion of conflict-management. As I have shown, the purpose of political institutions in Hobbes's philosophy is to manage conflict, unexpunged by entry into civil society. This function is typically performed through a transactional pattern of politics which adjusts the conflicting rights of sovereign and subject. Hobbes's preference for monarchy is dictated by the consideration that monarchy is less likely to perpetuate the conditions of conflict which sovereignty was meant to end and less susceptible to corruption through a transactional pattern of politics. While Hobbes's preference for monarchy appears anachronistic in the light of current prejudices, the criteria which govern this preference are strikingly modern. 8 Ibid. 20: 124 9 Ibid. 41: 259; 51: 336 1 Ibid. 48: 326. Madison cites Jefferson as an authority in support of this view in ibid. 48: 324. 2 Ibid. 10: 57 3 Ibid. 51: 336

129 American constitutional philosophy Hobbes stated that it did not matter whether the form of government was democracy, aristocracy, or monarchy because the rights of sovereignty were the same. No form of government can perfectly adjust the conflicting rights of sovereign and subject. A profound and irremediable tension persists in Hobbes's thought between the right of the individual and the authority of the government. This tension threatens to undo the delicate relationships which uphold civil society and to bring about the disintegration of public order. Madison sought to resolve the conflicts within Hobbesian thought in a practical fashion by speculating on the expedients by which private rights may be protected against coercive public authority. If the liberties of the individual can be secured through a particular organization of governmental power, so Madison's reasoning went, then a practical resolution would be provided to the conflicting rights of sovereign and subject. The practical solution advanced by Madison was to contrive the interior structure of government to require the sovereign to negotiate with each of the interests affected by his rule. This solution simply institutionalized the transactional relationships between sovereign and subject envisioned by Hobbes. The consent of each individual was necessary not only to put but to keep the government in action. Madison's contributions to The Federalist abundantly testify to his preoccupation, derived from Hobbes, with the design of political institutions suited to manage social conflict. He states that it is the counsel of perfection to base political action on the principle that the sources of social conflict can be removed: 'The latent causes of faction are ... sown in the nature of man' and 'cannot be removed.'4 Wherever, as in government, 'the impulse and the opportunity' for oppression are allowed to coincide, then corrupt rule is the certain result.5 Relief from oppression, therefore, is 'only to be sought in controlling [the] effects' of selfinterested political activity.6 As in Hobbes, political institutions must be shown to be generated from, the consistent in the manner of their constitution with, the justifiable preference of each man for his own interests. If political institutions are constituted in accordance with the principle of separate institutions sharing power and republicanism, Madison asserts, the safety and prosperity of the individual will be reasonably advanced beyond the conditions of the state of nature. If political institutions are not established on these principles, the miseries of man's 4 Ibid. 10: 55, 57 5 Ibid. 58 6 Ibid. 57

130 Hobbes and America natural condition will persist: 'In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in the state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter 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; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful/ 7 The object of Madison's constitutional design, as Calhoun correctly put it at a later date, is to 'require the consent of each interest either to put or keep the government in action.'8 This object is a logical extension of Hobbes's proposition that each and every individual has a right to be consulted on the terms on which authority is constituted in society. To this notion of government by consent of the governed, Madison adds the proposition, implicit in Hobbes, that consent also means that each and every individual has a right to be consulted on public policies which impinge on his interests. This object is implemented, as stated above, by contriving the interior structure of government to prevent the sovereign from achieving transfers of power within society without the concurrence of each affected interest. In civil society, as in the state of nature, individuals contend for power after power. To prevent the sovereign power from upsetting the conditions of relative equality among the political actors, power must be organized to equip each individual with the means to resist transfers of power from himself to others: 'Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.'9 Contributing to the same purpose of managing social conflict is Madison's theory of republicanism. It is insufficiently noticed that Madison stresses the advantages of an extensive republic over a republic limited 7 Ibid. 51; 340 8 I have already made reference to the connection between Calhoun's doctrine of the concurrent majority and Hobbes's theory of government by consent of the governed. See John C. Calhoun A Disquisition on Government, and Selections from the Discourse ed.by C.Gordon Post (Indianapolis: Bobbs-Merrill Co. 1953) 20 (italics mine). 9 Federalist 51: 337. To make sure that he will not be misunderstood concerning the self-interested basis of these political calculations, Madison repeats himself on the same page. The rationale of republicanism and separate institutions sharing power is 'that the private interest of every individual may be a sentinel over the public rights.'

131 American constitutional philosophy in size, to the same extent that he emphasizes the benefits of a republican government over a direct (majoritarian) democracy. Republicanism is preferable to democracy because it employs the principle of representation and thus avoids the direct impact of popular majorities on the decision-making process. Representation creates a divide between people and their political institutions and thereby reduces opportunities for demagoguery. * The first advantages of an extensive republic over one limited in size is that in a small republic society is divided into only a few parties and interests, and these divisions are insufficient to prevent these interests from combining to execute plans of oppression. But in a large republic, numerous and powerful divisions will make it 'less probable that a majority of the whole will have a common motive to invade the rights of other citizens.'2 Second, an extensive republic may succeed in quarantining, for a space of time, some of the parties to the social conflict. An extensive republic flings the conflicting parties into space and thus makes it difficult for them 'to discover their own strength, and to act in unison with others.'3 Therefore, in the same degree to which a republican government manages social conflict more efficiently than a democracy, so an extensive republic manages social conflict more efficiently than a limited republic: 'It clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic.74 Madison's arguments in behalf of republican government turn the traditional view of republicanism on its head. He insisted that America was undertaking a novel experiment in the creation of 'an unmixed and extensive republic,'5 whose principles were systematically different from the republics of antiquity. The traditional view held that a republic could flourish only in relatively small communities under the guidance of an elite. Madison countered the argument with the theory that faction, the inevitable and fatal disease of small republics, could be mitigated only in a republic of large size.6 He further denied that the authority of republican institutions depended upon the opportunities 1 Ibid. 10: 59 2 Ibid. 61

3 4 5 6

Ibid. Ibid. Ibid. 14:81 Ibid. 10: 61; 14: 80; and 63: 410. Hamilton's argument for an extensive republic is based on identical considerations, in ibid. 9: 49-50. Also, see Robert A. Dahl 'The City in the Future of Democracy' American Political Science Review 61 (December 1967): 953-70.

132 Hobbes and America for the virtuous life created by a political elite. The authority of republican institutions was derived 'from the great body of society, not from an inconsiderable proportion, or a favored class of it.'7 The object of republican institutions was to mute the interest-group conflicts of a commercial society rather than conform the lives of the members of society to an ideal pattern. Since 'neither moral nor religious motives can be relied upon as an adequate control/ republican institutions would supply, 'by opposite and rival interests, the defect of better motives.'8 To sum up, Madison clearly followed Hobbes's views about the pattern and purpose of politics but came to different conclusions about the appropriate design of political institutions. His preference for separate institutions sharing power and republicanism is dictated by the consideration that these instruments provide a necessary and efficient means of managing social conflict. The dispersion of powers, accomplished by separation of powers and republicanism, offers multiple points of access to individuals and interest groups seeking to induce the sovereign to incorporate their demands into the making and enforcing of the law. Through these transactional relations, an adjustment of the conflicting rights of sovereign and subject is effected which, at least in theory, achieves stable government. Madison's instrumentalities politicize the helium omnium in omnes and thus achieve the goal of Hobbesian politics in a more moderate manner.9 On the other hand, Hobbes's preference for monarchical government has the merit of avoiding petty corruption widely diffused among many small office-holders throughout society.1 Madison did not provide an authentic solution to the Hobbesian problem of sovereignty because the concurrence of all interests, save one, 7 Federalist 39: 244. In the same number, Madison argues that the absence of a class structure in America precludes the development of a political elite even were it considered desirable. 8 Federalist 10: 58; 51: 337 9 These conclusions are supported by several articles on Madison*s thought. See Martin Diamond 'Democracy and the Federalist' in Bernard E. Brown and John C. Wahlke (eds.) The American Political System: Notes and Readings (Homewood, 111., Dorsey Press 1967) 99-105, and 'The Federalist' in Leo Strauss and Joseph Cropsey (eds.) The History of Political Philosophy (Chicago, Rand McNally & Co. 1963) 573-93. Also, see John P. Roche 'American Liberty* in John P. Roche (ed.) Origins of American Political Thought (New York, Harper & Row, Harper Torchbooks 1967) 15-58. 1 The trend toward decentralization of political authority is discussed by Robert Wood 1400 Governments (New York, Doubleday & Co., Anchor Books 1964).

133 American constitutional philosophy restored the problem in its original form. Individuals and groups in society would remain in need of recalculating the conditions of the covenant to determine whether their interests lay in obedience to the sovereign or in recovery of the original right of self-rule. These considerations did not escape the attention of Hamilton, who straightforwardly proposed to strengthen the hand of the sovereign in preparation for the inevitable crunch. Hamilton is far less confident than Madison that structural solutions can be reached to conflicts of right between sovereign and subject. The diffusion of interest groups in an extensive republic will not indefinitely delay the day in which the groups will compete within a limited political arena for the goods and services of government. Negotiation between sovereign and subject may postpone but will not avoid unpopular acts. In the face of these considerations, a supreme policing authority, able to keep the parts of society in awe, was essential. Hamilton's arguments in behalf of a strong executive power, like Hobbes's arguments in behalf of monarchy, are not inconsistent with the principles of liberalism. They merely differ from the conventional prejudices of how these principles shall be implemented. 'A vigorous Executive,' he asserted, is not 'inconsistent with the genius of republican government.'2 Republican liberty is served by imparting 'energy' to the actions of the government through a strong executive. The Constitution required the concurrence of such a large number of interests that the situation of the government 'must always savor of weakness,' and 'sometimes border upon anarchy.'3 To compensate for the inconclusiveness of representative institutions, it is necessary to vest authority and power in a single man. A vigorous executive will, at the least, maintain the external features of sovereignty through 'protection of the community against foreign attack,' and through 'the protection of property... against the enterprises and assaults of ambition, of faction, and of anarchy.'4 A clear advantage of the federal government over the Confederation is that 'the general government could command more extensive resources for the suppression of disturbances.'5 While setting forward differing solutions, the common objective of Madison and Hamilton is to contain secessionist tendencies. Hamilton placed stress on a sovereign who would coerce the parts of society into 2 3 4 5

Federalist 70: 454 Ibid. 22: 136 Ibid. 70:454 Ibid. 16: 100

134 Hobbes and America an unnatural harmony. The emphasis of Madison is upon incorporating the demands of individuals and groups into the interior process of making and enforcing the law. Secessionist politics, nevertheless, remains a central element of American constitutional tradition. The tenets of this position are most interestingly expressed in the writings of John Calhoun and Henry Thoreau. Calhoun's doctrine of the concurrent majority and Thoreau's doctrine of civil disobedience establish the identical position that the individual has a right, an absolute right, to act according to self-defined standards of conscience and interest. Both Calhoun and Thoreau repudiate the legitimacy of the numerical majority acting through existing political institutions. As Calhoun says, ideally 'the consent of every citizen or member of the community' would be sought in determining the will of the concurrent majority, society's only legitimate authority.6 In his usual style Thoreau asserts the same view, saying 'Any man more right than his neighbors constitutes a majority of one already.'7 Although pure democracy is also the most natural form of government in the Hobbesian constitutional philosophy, to Hobbes this is nothing in its favor. Hobbes states that government is constituted in two steps: (1) when each and every individual covenants with all the others to establish a government; (2) when the members of society deliberate in rudimentary assembly over the form the government is to take. The original act of creation requires the consent of each member of the commonwealth to the creation of the government. In the second stage the numerical majority determines the form of the government and, if it is a democracy, the numerical majority has a right of rule. Hobbes states 'It is not from nature that the consent of the major should be received for the consent of all but it proceeds from civil institution.'8 Yet it is clear, as I have shown, that there are rights which remain untransferred in the original covenant even to a numerical majority. The covenant involves a promise of transfer of right contingent upon safety of performance, and the individual is the judge of when this condition is met. Pushed to the extreme, Hobbes's position approaches the view of Calhoun that the sovereign, when constituted as a democracy, acts under the legal constraints of a concurrent majority. But Hobbes guards against this view, 6 Calhoun Disquisition on Government 24 7 Henry D. Thoreau Walden and 'Civil Disobedience' ed. by Perry Miller (New York, Signet Books 1960) 230 8 Thomas Hobbes Man and Citizen ed. by Bernard Gert (New York, Doubleday & Co., Anchor Books 1972) 189

135 American constitutional philosophy as Calhoun and Thoreau do not, by emphasizing the rights of the sovereign by institution, whether democracy, aristocracy, or monarchy. It is illuminating to ask why Thoreau and Calhoun did not take the more sensible position of Hobbes with respect to the rights of the numerical majority. The answer is that Thoreau and Calhoun had more to gain from rebellion than from maintaining fidelity to existing political institutions. For Calhoun the motive for secession is pretty clearly the protection of the rights of slave-holding interests. After all, Locke had said that the same sovereign who could order a soldier to march up to the mouth of a cannon, 'where he is almost sure to perish, can[not] command that Soldier to give him one penny of his Money/ 9 But Locke's acceptance of majority rule was by no means ill-considered. If the minority principle is carried to its logical conclusion, it unravels itself out into the state of nature where isolated individuals execute the law of nature for themselves.1 Thoreau is a more difficult case because the rewards of secession are invisible to the seeing eye. The advantage of secession for Thoreau is that it appeared to sever him from complicity in morally objectionable policies of the government. The divorce was more apparent than real because, as Thoreau was sufficiently candid to reveal, his 'war' with the state did not prevent him from existing on comfortable terms with the artifact of civil order which it provided: 'I will still make what use and get what advantage of her I can, as is usual in such cases.'2 Resistance afforded Thoreau a purely imaginary triumph over the authority of the state. But it was necessary publicly to maintain the fiction of virtuous triumph in order to allay private conscience. The dividend of resistance for Thoreau, therefore, was self-justification. Thoreau's personal life embodies to an extraordinary degree the Hobbesian principle of absolutism. Like the Protestant saint who had stepped outside the confining roles of classical political order, he claimed to be saved outside the state by means other than the law of the state. To put the matter in strongest language, Thoreau embodied the Hobbesian principle that the sole source of right within society is the absolute will of the individual. We may recall that Hobbes took a dim view of the Protestant doctrine that salvation is achieved through a personal act of faith. The consequence of this principle is that 'we are reduced to the 9 John Locke Second Treatise sect. 139 in Two Treatises of Government ed. with an intro. by Peter Laslett (New York, Mentor Books 1960) 1 Louis Hartz 'South Carolina vs. the United States' in Margaret Coit (ed.) John C. Calhoun (Englewood Cliffs, NJ, Prentice-Hall 1970) 152-6 2 Thoreau 'Civil Disobedience' 236

136 Hobbes and America Independency of the Primitive Christians to follow Paul, or Cephas, or Apollos, every man as he liketh best.'3 In Hobbes's view Protestantism encourages a certain 'asperity of Nature' which makes a man unwilling to 'strive to accomodate himselfe to the rest.'4 Such a man is apt by the 'stubbornness of his Passions'5 to undo the delicate relationships on which civil order depends and to contend with the sovereign on insubstantial and unimportant grounds. While Hobbes's views about the dangers of 'independency' seem exaggerated in retrospect, his judgment about the difficult nature of Protestant saints is amply vindicated in the case of Thoreau. The absolute subjective claims of Protestantism were revived by Thoreau in secular form in the doctrine of 'genius': 'If one listens to the faintest but constant suggestions of his genius, which are certainly true, he sees not to what extremes, or even insanity, it may lead him; and yet that way, as he grows more resolute and faithful, his road lies ... No man ever followed his genius till it misled him.' 6 The only goods worth pursuing in life are those which are identified by the idiosyncrasies of personal genius. Consequently, a government which acts creatively to provide public goods is acting inconsistently with the function for which it is constituted. It imposes obligations on men which are onerous, expensive, and immoral and interferes with their attention to the hermetic intimations of genius: 'For government is an expedient by which men would fain succeed in letting each other alone; and ... when it is most expedient, the governed are most let alone by it.'7 Thoreau asserted, along with Emerson, that genius is the sole source of right within society and the only final authority for meaning. Their audience supported the claim that the individual possesses 'a power literally realizable by no man, and openly fantasied by most people only when they are infants: the power to dispose of the whole felt and imagined world as a woman arranges her skirt .... This imagined man has become the only effectual power in human things, greater than priests and kings.'8 Unlike Hobbes, who stressed that the sovereign must have the equivalent of the absolute Thomas Hobbes Leviathan (Oxford, Basil Blackwell 1957) 711 Ibid. 209 Ibid. Henry D. Thoreau Walden and Other Writings ed.by Brooks Atkinson (New York, Random House, Modern Library 1950) 194 7 Thoreau 'Civil Disobedience' 223 8 Quentin Anderson The Imperial Self (New York, Random House, Vintage Books 1971)56, 14

3 4 5 6

137 American constitutional philosophy right claimed by individuals, Thoreau elevates the claims of genius above the existence of the state: 'There will never be a really free and enlightened State, until the State comes to recognize the individual as a higher and independent power/ 9 Although the state, supported by the community, will normally assert its pre-eminence, one should never be easily intimidated. Once more, 'any man more right than his neighbors, constitutes a majority of one already.'1 And no man ought to have 'an undue respect for the law.'2 The government ideally suited to embody the doctrine of personal sovereignty is one which 'governs not at all.'3 There is much logic, within the context of this essay, for Emerson's judgment that 'No truer American existed than Thoreau.' The Hobbesian response to Protestant absolutism was two-fold: (1) the sovereign must have the equivalent of the absolute right claimed by the individual in the state of nature; (2) the commercial enthusiasms of Protestantism should be encouraged. The rights of sovereignty, as I have said, were merely a logical deduction from the rights asserted by the parties to the civil covenant. Better than Thoreau or Calhoun, Hobbes perceived the consequences to which their real position led. The explanation from Hobbes's partiality to bourgeois morals is that a rational theory of obligation may be deduced from the behavior of men in an open-market economy, whereas differences of opinion on matters of faith may only be settled by authority. While conflict is produced by the behavior of men in a market society, this condition generates its own solution - a sovereign who will maintain the relationships of possessive individualism. Obligation to the sovereign is rational and desirable to one whose personal freedom is a function of the relative equality of each man before the rules of the market. It was easy, relatively speaking, to institute a civil sovereign over men who had a *Desire of such things as are necessary to commodious living.'4 Thoreau agreed with the Hobbesian analysis of a split within the soul of commercial Protestantism but stressed an orientation just the reverse of Hobbes's. The possessive individual unavoidably sacrificed both his conscience and his creative energies. First of all, acquisitiveness implicated one in a political order in which the relationships of production and exchange regularly worked to the disadvantage of the laboring class: 9 1 2 3 4

Thoreau 'Civil Disobedience' 240 Ibid. 230 (italics mine) Ibid. 223 Ibid. 222 Hobbes Leviathan 188

138 Hobbes and America 'It certainly is fair to look at that class by whose labor the works which distinguish this generation are accomplished.'5 Labor created the dominant values of a capitalist society *the cost of a thing is the amount of what I will call life which is required to be exchanged for it'6 only to be subsumed by the works of its own hand: 'We do not ride on the railroad; it rides upon us. Did you ever think of what those sleepers are that underlie the railroad? Each one is a man, an Irishman, or a Yankeeman.'7 Second, the mere pursuit of wealth required a sacrifice of those creative energies which, otherwise employed and directed, might lead a man to confront himself in the objects of his creation. Like Marx, Thoreau perceived man as potentially an artist confronting nature who would knowingly fulfill himself in the products of his mental and physical labor. But capitalism's systematization of mutual selfishness negates these possibilities. Men work not for themselves but for a wage, and at tasks bearing only a minimal relation to their artistic potential: 'Money comes between a man and his objects and obtains them for him.'8 Therefore, 'The mass of men lead lives of quiet desperation. What is called resignation is confirmed desperation. From the desperate city you go into the desperate country, and have to console yourself with the bravery of minks and muskrats. A stereotyped and unconscious despair is concealed even under what are called the games and amusements of mankind. There is no play in them, for this comes after work.' 9 Sensitive to the dilemmas of class oppression and alienated work as Thoreau may be, his response to these dilemmas remains consistent with the philosophy of Hobbes and Locke. As a rebel, opposing his absolute right to the authority of the state, Thoreau succeeds only in justifying the premises which constitute the liberal-democratic state. Encounters between the individual and the state are invariably imagined in a oneto-one relationship. One of the parties to the conflict, i.e. the state, is asserted to be virtually imbecile, 'like a lone woman with her silver spoons'1 or imagined away,2 thereby justifying the individual in his 5 6 7 8 9 1 2

Thoreau Walden 31 Ibid. 27, 28 Ibid. 83 Thoreau'Civil Disobedience'231 Thoreau Walden 7 Thoreau'Civil Disobedience'234 Ibid. 238. The government does not concern me much, and I shall bestow the fewest possible thoughts on it. It is not many moments that I live under a government, even in this world. If a man is thought-free ... unwise rulers or reformers cannot fatally interrupt him.'

139 American constitutional philosophy recovery of his original right of self-rule. There is not, and cannot be, in these encounters any conversation between the principals, the individual and the state, because both exist within a self-contained universe of meaning. Therefore, there cannot be any prospect of changing the principles on which authority in society is constituted. The position of rebellion adopted by Thoreau deprives its spokesman of a coherent set of values in terms of which its challenge to civil authority is issued. It is very far from the position of, say, Socrates, sometimes linked with Thoreau as an apostle of civil disobedience. From Socrates we may extrapolate a coherent theory of civil disobedience because he does not sever the links of communication which bind the individual to society: 'Both in war and in the law courts and everywhere else you must do whatever your city and your country command, or else persuade them with universal justice, but violence is a sin against your parents, and it is a far greater sin against your country.'3 If there is merit in the argument I have been pursuing, then Thoreau, despite his passionate opposition to slavery, shares with Calhoun responsibility for the government's failure in the pre-Civil War era. Calhoun has been conventionally regarded as the villain in the events leading up to the Civil War. But Thoreau's assertion of an absolute right of selfrule - 'I cannot for an instant recognize that political organization as my government which is the slave's government also' 4 - in no way helped the slave. No less than Calhoun's doctrine of the concurrent majority, it ensured that the government would be incapable of grasping the slavery issue in terms of an ideal of social action. Instead the government is effectively confined to the task of managing conflict between two isolate, hermetic, and hostile individuals, Thoreau and Calhoun, neither of whom is capable of communicating with the other, neither of whom perceives any prospect of social action through the government, and both of whom are therefore dependent on the activity of a policing sovereign for the coherence of their position. If ruling authority prior to the Civil War was unable to formulate and implement a gradualist policy transforming the status of the Negro from slave to citizen,5 this is a failure for which Thoreau should receive his share of the blame. No less than Calhoun, he was unable to sustain the government on principles other than those which would ensure its failure. 3 Crito sect. 51, c (italics mine) 4 Thoreau 'Civil Disobedience' 224 5 See Frank Tannenbaum Slave and Citizen: The Negro in the Americas (New York, Random House, Vintage Books 1946).

140 Hobbes and America The social philosophy of William Graham Sumner reveals a distressing tendency on the part of American social scientists to read into 'Nature' all the elements of the national ideological inheritance. Sumner's theory of 'natural selection' and 'survival of the fittest' is ostensibly derived from Herbert Spencer's Social Statics, and this in turn is based on biological science. In fact the pre-formation of national consciousness by the liberal ideology instills a taste for ideas of competitiveness, isolation, and struggle. The consciousness molded by this tradition does not approach the natural world in search of the rules by which it is governed. Whenever an author projects into nature such concepts as working to destroy 'whatever is a failure in its line'6 we may be sure that we are not beholding the same nature which is studied by the scientist in his laboratory or speculated upon by the philosopher. Such a view is the product of nurture rather than the world of nature as it presents itself to the inquiring eye. In Sumner the tendency to transmute the Hobbesian Leviathan from a political into a social structure, a development roughly beginning with Locke, is carried forward to a frightful conclusion. The operation and meaning of the coercive sovereign of Hobbes are vigorously transferred by Sumner to the social realm - externally, as the judgment of others and, internally, as the commands of the super-ego. The writings of Sumner are, in essence, hortatory; in many places a passage will take the startling form of commandment, such as, for example, 'Get Capital!'We may fairly suppose that an important element of Sumner's popularity with students at Yale is that he embodied, in convincing and dramatic fashion, a general social will committed to the values of commercial Protestantism and that, in the immemorial manner of a patriarch, he transmitted these values in compelling terms. Sumner may have had a lively appreciation of the role he played: 'Now, parental affection constitutes the personal motive which drives every man in his place to an aggressive and conquering policy toward the limiting conditions of life. Affection for wife and children is also the greatest motive to personal ambition and personal respect - that is, to what is technically called a "high standard of living.'"7 At the same time that the values of commercial Protestantism become comfortably nestled in social dogma, 6 William Graham Sumner Social Darwinism with an introduction by Stow Persons (Englewood Cliffs, NJ, Prentice-Hall 1963) 122 7 William Graham Sumner What Social Classes Owe to Each Other (Caldwell, Idaho, Caxton Printers 1952) 64

141 American constitutional philosophy eclipsing conflicting trends in Western culture, the need for a coercive sovereign diminishes in the political sphere. Fear remains an element of consent to social and political institutions, but fear is disguised from view, except when surrogate fathers such as Sumner openly terrify to reinforce a commandment, because it is invisibly applied through the pressures of the super-ego.8 In Sumner the Hobbesian Leviathan emerges in its characteristically American form as a social structure vigorously sustained by the commandments of the fathers. The faith of the fathers is blindly, even superstitiously, adopted by the sons. They are so traumatized as not to question the adequacy of America's dominant liberal ideology. Among the controlling principles of Sumner's philosophy is the Hobbesian view that men have an unlimited right to employ whatsoever helps they can in the struggle for existence. Although Sumner does not speak of 'Natural Rights'(indeed in one place he denies their existence),9 nevertheless a major thrust of his philosophy is providing justification for the right of men, by nature, to assault nature and each other in competition for a limited supply of amenities: 'The struggle for existence is aimed against Nature ... Nature is entirely neutral; she submits to him who most energetically and resolutely assails her. She grants her rewards to the fittest, therefore, without regard to other considerations of kind.'1 The struggle between man and man is removed from the realm of human responsibility to Mature.' Sumner asserts that the rule of the 'fittest' has changed in formal characteristics, if not in substance, with advancing levels of expertise in technology, science, and social organization: 'Nature still grants her rewards ... but it is now the man of highest training and not the man of heaviest fist who gets the reward.'2 Another position which Sumner shares with Hobbes is that men not only have, by nature, illimitable rights, but that they are by nature solitary. The individual who creates and becomes the subject of civil authority must not have his individuality compromised by the nature of political institutions. The state misconceives its function if it considers that its purpose is to alleviate distress, or to make men good, or to make men happy. Public policy directed to these objectives deprives the indigent or the misguided of an opportunity to discover and assert their 8 See James Glass 'Schizophrenia and Perception: A Critique of the Liberal Theory of Externality' Inquiry 15: 114-45. 9 Sumner Social Darwinism 65 1 Ibid. 76 2 Ibid.

142 Hobbes and America manhood and it deprives others, who provide maintenance and care, of proprietorship over their labors. A man is, by nature, alone; he must rescue himself from whatever misfortunes befall him: 'A human being has a life to live, a career to run. He is the center of powers to work, and of capacities to suffer. What his powers be - whether they carry him far or not; what his chances may be, whether wide or restricted; what his fortune may be, whether to suffer much or little - are questions of his personal destiny which he must work out and endure as he can.' 3 The state can, and indeed must, for Hobbes and Sumner, consistently with doctrine of individual worth, provide the members of society with equality of opportunity. It is implicit in Hobbes's position that since all men are by nature equal, public authority must provide them with relatively equal prospects in their pursuit of the amenities of life. The sovereign assists his subjects in the pursuit of the felicities of life, not by defining the goals which the members of society ought to pursue, but by removing the obstacles to happiness privately defined. The sovereign may consistently with this function provide employment for the ablebodied and income assistance to the incapacitated. For those who 'become unable to maintain themselves by their labor; they ought not to be left to the charity of private persons; but to be provided for ... by the Lawes of the Commonwealth.'4 But 'for such as have strong bodies ... there ought to be such Lawes, as may encourage all manner of Arts; as Navigation, Agriculture, Fishing, and all manner of Manifacture [sic] that requires labour.'5 The role of the state is visualized by Sumner in terms analogous to those of Hobbes; it provides for equality of opportunity while abstaining from imposing an ideal pattern of life. The standard concept of liberal reform, providing equal opportunity to individuals to struggle upwards, is embodied in Sumner's policy recommendations. Antimonopoly measures should be undertaken, even if not successful, to create opportunities for 'the man on the make' no less than for 'the man who has made it.' Public education should equip individuals with saleable skills so that they can compete on terms of relative parity with the graduates of private colleges. Capital should be provided at lowinterest rates over a long period to small businessmen and farmers. Labor organizations should be encouraged and protected so that labor can win 3 Sumner Social Classes 30 4 Hobbes Leviathan 387 5 Ibid.

143 American constitutional philosophy its share of the profits of capital enterprise. But in none of these activities should the state attempt to conform the subsidized and the regulated to an ideal pattern of society: 'It is not the function of the state to make men happy. They must make themselves happy in their own way, and at their own risk. The functions of the state lie entirely in the conditions or chances under which the pursuit of happiness is carried on, so far as these chances can be affected by civil organization.'6 An historical problem for Sumner was that the egalitarian premises underlying the construction of liberal-democratic institutions had come increasingly into conflict with the political realities. A cluster of men, called by Sumner a 'plutocracy,' now employed the power of the state to augment its already disproportionate share of physical, human, and financial capital. The inequalities introduced by the plutocrats were not a direct outgrowth of the equal opportunity doctrine but proceeded from the use of the state as an instrument of capital accumulation. Sumner openly defended the inequalities inherent in the doctrine of equal opportunity. While the state is under some obligation to put men on a footing of relative equality in their pursuit of the good life, it must not deprive those who have succeeded in 'an aggressive and conquering policy toward the limiting conditions of life'7 of the fruits of their success. 'Millionaires' were, therefore, consistent with the liberal-democratic ideology as the products of 'natural selection,' but 'plutocrats' were not.8 The inequalities introduced by the plutocracy did not flow from differentials in talents and industry but involved plundering the state for subsidies, contracts, tax write-offs, tariff protection, and the like. Since electoral democracy appeared unable to dislodge the plutocrats from positions of influence in the government, the inequalities within society threatened to become cumulative.9 The genesis of the plutocracy put Sumner in the difficult position of providing compelling reasons to the great mass of men, the 'Forgotten' men, for continuing to compete within the system. Of what avail was Sumner's command 'Get Capital!' when cumulative disparities were building up in the relative opportunities of men to acquire it? As withThoreau, whose awareness of the problems of class oppression and alienated work have been mentioned before, the revealing element is the solutions which Sumner did not consider to the problems he had 6 7 8 9

Sumner Social Classes 80, 81 Ibid. 64 Sumner Social Darwinism 157 Ibid. 146

144 Hobbes and America identified. No more than Thoreau was Sumner able to grasp the social problem which he had raised in terms of an appropriate ideal of social action. A logical development following from his own analysis pointed to the socialization of the uses of capital, corresponding to the activity of the state as an instrument of capital accumulation. Since the state was increasingly being invited into the private sector as a business partner, it seemed reasonable that it should have some control over the manner in which its investment was used. The state might even venture to provide services directly where the amount, risk, and projected deployment of capital made investment by the private sector unsuitable.1 Sumner guarded against this tendency of thought. In the main he focussed resentments downward on the poor, diverting attention from the circumstance that the plutocracy was by far the greater beneficiary of state assistance, and he stressed the virtues of competition, deflecting consideration from the social uses of capital. In Sumner's case, as in others, the faith of the fathers was an imperfect guide to political action. This chapter has shown that the Founding Fathers extrapolated from Locke those elements of thought where he is in closest agreement with Hobbes, that the Hobbesian philosophy of constitutionalism has periodically changed in the idiom of its expression in America while remaining the same in terms of principles, and that in the later phases of its development the Hobbesian sovereign in America emerges as a social no less than a political structure. The direct influence of Hobbes on Locke, of Locke on the Founding Fathers, and of Hobbes on the Founding Fathers has been discussed at several points in this and the preceding chapter. But the substantive relations which exist between Hobbes, Locke, and the Founding Fathers are most clearly brought to view through an exploration of dominant themes. The elements of political thought extracted from Locke by the Founding Fathers connect both to the Hobbesian constitutional philosophy. These elements are radical individualism, transactional relations, conflict-management, and a merely policing sovereign. Madison, I have shown, does not offer the best philosophic defense of his own design for American political institutions. For example, a full appreciation of Madison's arguments in behalf of separate institutions sharing power and republicanism requires an understanding of the Hobbesian problem of public authority. In general, 1 This line of argument is currently being developed by Galbraith. See John Kenneth Galbraith Who Needs the Democrats? (New York, Doubleday & Co. 1970).

145 American constitutional philosophy Madison's design of the constitution achieves coherence only through the interpolation of major principles of sovereignty, government by consent, a right of resistance, and the office of the state derived from Hobbesian political philosophy. In the course of American constitutional history elements within the Hobbesian political tradition have received varying degrees of emphasis. Madison, for instance, stressed the role of a government of dispersed power in managing conflict between independently situated political actors. The essence of Madison's solution to the severe interpersonal conflict which creates and provides the raison d'être for civil authority is a design of political institutions which encourages individuals and groups to negotiate their differences rather than fight them out. In some respects the Madisonian solution is more Hobbesian than Hobbes because it assumes universal ruthlessness, to some extent underplayed by Hobbes, and because the solution advanced reinforces the position of the sovereign as the final authority in the management of conflict. In retrospect, nevertheless, there is merit in the position of Hobbes and Hamilton that a monarchical figure is less susceptible to corruption through a transactional pattern of politics, at least marginally so, and better suited to maintain the external features of sovereignty. We may reflect that Hobbes's solution will be tried again, if conditions warrant. A second variant of the tradition of liberalism is the secessionist politics of Calhoun and Thoreau. In contrast to Madison's emphasis on conflict-management and transactional relations, the stress of Calhoun's and Thoreau's teaching is upon radical individualism and a policing sovereign. Thoreau and Calhoun hide their commitment to a sovereign charged with policing the external conditions of public order. But the deliberations which lead to the authorization of the sovereign are easily overwhelmed by competing passions of pride and acquisitiveness. Calhoun and Thoreau lay stress, therefore, on the rights of the concurrent majority, which even in the Hobbesian philosophy limit the authority of the numerical majority. Hobbes and Locke stress the right of the numerical majority, and so does Madison after first making sure that it will be broken into so many parts that it will be unable to discover a common principle of action. To this Calhoun and Thoreau offer the rejoinder that according to the original covenant the numerical majority has an artificial right of rule from each of us, taken one by one. The final sovereign for Thoreau and Calhoun, especially the former, is the individual who is an ens completum, complete within himself, needing nothing outside himself to complete himself. As we have seen, Tho-

146 Hobbes and America reau's and Calhoun's assertion of an absolute right of self-rule, while employed in justifying rebellion, paradoxically reinforces authority in American society on the principles on which it has traditionally been constituted.2 In Social Darwinism the principles of liberal-democratic ideology are transmuted, through the acquisition of a social basis, into mere dogma. The coercive sovereign of Sumner is installed, not so much in an office of the state, but in the inner chambers of the mind and in society. The commands of Leviathan are issued, externally, as the judgment of others and, internally, as the commands of the super-ego. If the need for a coercive sovereign in the political sphere is diminished through the transmutation of liberalism into social dogma, it is at the cost of a far more pervasive system of coercion than dreamed of by Hobbes. The Hobbesian sovereign requires a rule of action merely. With Sumner the sovereign is charged not only with policing the external boundaries of public order but with regulating the thoughts and wishes of men. Hereafter, a repressive political consciousness sets in, unable to discern the roots of its political convictions and blind to the social tendencies of its position. The pluralists are later to join Sumner in the opinion that the liberaldemocratic heritage, and only that, is consistent with the lineaments of pure nature. While Hobbes was at least aware of his rivals in Western intellectual tradition, Sumner is clearly incapable of defending his position against adversaries whom he cannot perceive and so whom he must necessarily overwhelm. The case of Sumner is revealing because it clearly shows that the agency by which a pre-formation of national consciousness has occurred is the family, particularly the father. Sumner considered his father a 'hero of civilization' and sought to model his own character and views upon his father's example. But the extent to which American constitutional history may be viewed as so many variations - pluralism, secessionism, Darwinism, conflict-management - on a single ruling ideology strongly implies that there are other, no less powerful agencies of socialization at work. The president as the embodiment of a general social will, committed to the values of commercial Protestantism, would not 2 For an assessment of Thoreau also stressing his conservative, liberal persuasion see John Diggins 'Thoreau, Marx, and the Riddle of Alienation' Social Research February 1973 571-98. An account of Thoreau squarely opposed to the one offered here is provided by Harry Jaffa 'Reflections on Thoreau and Lincoln' in Robert Goldwin (ed.) On Civil Disobedience (Chicago, Rand McNally & Co. 1968)33-60.

147 American constitutional philosophy be fulfilling the responsibilities of his office, as that has been redefined for us by Sumner, if he did not periodically counsel the nation on the proper rearing of its sons and daughters. The point is that fathers and surrogate fathers have disposed Americans to consider the contents of their mental consciousness and the institutions which they sustain as identical with pure nature. Children are not advantageously situated to disagree in a systematic and sustained way with their parents, and so evidence for a contrary view of the matter is seldom procured and brought forward.

7 The predicament

In this study, Hobbes emerges as a masterful figure. Both Locke and Madison are indebted to Hobbes for their conception of the source, nature, and limits of public authority. The theories of liberal-democratic constitutionalism advanced by Locke and Madison achieve coherence only after the interpolation of major principles of government by consent, equality, a right of resistance, and sovereignty derived from Hobbes's political philosophy. Hobbes foreshadows the arguments underlying the preferred place which Locke and Madison give to separate institutions sharing,power. He showed that, in modern times, the sovereign power ought to be organized to channel self-interested calculations of rulers and ruled toward identities of interest and to reinforce the position of the sovereign in the management of social conflict. Stability, as an overriding goal of liberal-democratic constitutionalism, originates with Hobbes and becomes, with Madison, an obsession. After Hobbes, liberal democrats understand by the term 'constitutional' institutional arrangements managing social conflict. The idiom of expression of Hobbesian constitutional philosophy has changed periodically in the course of American history while, in terms of its controlling principles, the tradition descended from Hobbes has not been altered. These reflections affirm the view that Hobbes is indispensable to the study of American politics. Scholars have been misled about the intellectual underpinnings of American politics because of Hobbes's notoriety and the complexity of his real argument. Not to be underplayed, however, is the reluctance to accept an interpretation which questions the brand names of American politics. It is not easy to penetrate the rhetoric of social progress and programmatic reform with the message that America, as a national

149 The predicament society, stands uncertainly on the edge of the state of nature. It is difficult to obtain a hearing when the conventional discourse of American politics takes refuge in fantasy and naïve empiricism. Why should a theory locating the sources of American constitutionalism in Hobbes prevail over competing views linking American politics with natural law or popular sovereignty constitutional ideals? The theory that Hobbes is the founding father of American constitutionalism should prevail because it is consistent with the several forms in which the constitution exists in American national society. The Hobbesian model of constitutionalism is consistent with the American constitution considered as the historical enthusiasm of a people and as the process of American politics. The alternative views of Burns and Holcombe can be accepted only by ignoring a vast amount of evidence concerning the historical trajectory of American liberalism and the empirical literature of American political science. A philosophy of constitutionalism, let us remember, is a ruling cluster of ideas, working and controlling all the time. Philosophy, through the acquisition of a social basis, is transformed into an ideology. The dominant ideology of a national society establishes the goals to be pursued and the working arrangements to be employed in pursuing them. Only the theory of constitutionalism found in Hobbes can be reconciled with the nature of the American constitution as just described. Among the myths which have stood in the way of recognition of Hobbesian theory is the view that the written constitution is supreme in America. In this interpretation, the constitution, considered exclusively as a written memorandum of association, is magically efficacious in fixing a blueprint of national existence for all time. Such a view ignores the manner in which ideas circulate in society, are transmitted over time, and shape the dominant patterns of thought and action within a political culture. Much of what has been described here as the constitution considered as the historical enthusiasm of a people or as the operative realities of American politics preceded the written constitution of 1787. How also do we explain the particular characteristics of the written document assembled in Philadelphia or the general acceptance it found in society? To suppose with Gladstone that 'the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man' (italics mine) is to throw history, politics, and philosophy into great confusion. The written constitution in America, looked at in this light, is an anomaly, like a rabbit issuing from a hat. If we employ an accurate idea of the form in which the constitution exists,

150 Hobbes and America we recognize that the final sovereign is the American system of government, not, as Madison himself observed, a piece of parchment. I have dealt earlier with the reasons for the institutional structure which the written constitution sets out. I shall not'repeat the argument at this point. It is enough to remark that these reasons have little to do with the lofty, noble purposes ascribed to the written constitution by the myth-makers. A second question is 'Is it so important that Hobbes, rather than Locke, is established as the true ancestor of constitutional-liberal-democracy in America?' One may approach the question by supposing that nothing has disturbed Locke's role as the progenitor of American constitutionalism. But if it is held that Locke is the source of American political tradition, one must confront the problem that Locke does not perceive, or that he conceals, his break with natural law tradition and thus becomes highly misleading as to the heritage of American politics. If American political reformers have been naïve in endowing the Supreme Court with powers of godlike wisdom to transform the polity in keeping with an ideal of social action, or if the American public is sentimentally viewed as a progressive people obedient to the rule of law, this is because the reformers are influenced by a theory of the regenerative character of American politics arising out of Locke. The rhetorical idealism of Lockean natural law disguises the circumstance that the identical theory embraces the operative realities of politics set forward by Hobbes. These operative realities -- transactional relations, conflictmanagement, a merely policing sovereign, and hermetic individualism place severe limits on the prospects for social reform in America. Unlike Locke, Hobbes does not mislead his readers into acceptance of anachronistic modes of thought. Hobbes provides the expectation of consistency. Through him we can derive a philosophy of American constitutionalism which is internally coherent and in conformity with the operative realities of American politics. An interpretation of American constitutionalism tied to the rhetorical idealism of Locke sustains ruling authority in America on a fraudulent basis. The chief aim of Locke's rhetorical use of natural law is to provide the not-so-well-off within society with sufficient reason for continuing, to their own disadvantage, within the existing political arrangements. There is a direct link between the rhetorical idealism of Locke and the 'symbolic manipulation' employed by modern American elites in sustaining the political system.1 Elitist manipulation of symbols, beginning 1 Murray Edelman The Symbolic Uses of Politics (Champaign-Urbana, University

151 The predicament with Locke, erodes the basis of consent and alters the nature of ruling authority in liberal democracies. Hobbes, who is more egalitarian, proposes a sovereign who maintains a rule of action merely. But Locke allows and even encourages an authority who regulates belief. To the extent that reform interpretations of American constitutionalism buttress symbolic manipulation by elites, they sustain a coercive authority which protects the well-off. It does not take much imagination to see the relative advantages of deception over coercion in sustaining the American political system. No attempt will be made at the last to develop the theory that should guide American politics. The purpose of this work is to develop the theory that does guide American politics, and it would be inappropriate, despite the obvious temptation, to introduce a fresh set of considerations at this point. Solutions to the problems faced by America are in abundance, while an adequate definition of the predicament is hard to come by. We may, however, consistently with our general purpose, sharpen our view of the characteristics of the current predicament. One major feature of the current predicament is reactionary liberalism. In Nixon's presidential years liberalism was collapsed into its simplest components in order to conserve it against any change. This period signalled a growing assertiveness of the politics of reaction and a more candid acknowledgment of the role of coercion in maintaining the constitutional system. A second major feature of the current predicament is the decline of political sensibility, especially among those whose profession it is to study politics. In the opening chapter we noted the tendency of pluralist empiricism to regard the American political system as identical with pure nature. In opposition to this, the view is dawning that pluralist empiricism is both a set of normative preferences and a description of the working arrangements of American politics.2 But such a view is not widespread and has not yet produced the reappraisal of American politics that is needed. So far pluralist empiricism has successfully disguised its commitment to liberal ideology and skillfully maintained the pretence that the workings of American politics are identical with the operations of nature itself. In an earlier essay, Louis Hartz attributed the irrationality of American liberalism to the absence of a feudal backdrop against which it could see its own lineaments in clear relief.3 Without of Illinois Press 1964) and Kenneth M. Dolbeare and Murray Edelman American Politics (Lexington, Mass., D.C. Heath & Co. 1974) 2 Michael P. Smith Politics in America (New York, Random House 1974) 3 Louis Hartz The Liberal Tradition in America (New York, Harcourt Brace & World 1955)

152 Hobbes and America commenting on the attribution which Hartz makes, we can see that the irrational nature of American liberalism is accentuated by naïve empiricism and the politics of reaction. The most serious feature of the current predicament is the steps taken by liberalism to protect itself against self-knowledge. Former President Nixon reached into the rag-bag of the mental artifacts of liberalism, selecting two - possessive individualism and a merely policing sovereign - best suited in his estimate to conserving the institutions and intellectual legacy from any change. No doubt it will seem astonishing to some to contend that the characteristics of the liberal mind could endure over time with so little variation. Admittedly, such an interpretation places great weight on the manner in which the American constitution, as an historical enthusiasm, as a written memorandum, and as a political process, has imposed itself on the political mentality of the nation. But the interpretation is consonant with important declarations of Nixon on matters of public policy and what is known of his personal views. On the occasion of his second inaugural address, Nixon stressed the necessity in a society of possessive individuals of securing the amenities of life through one's own unaided efforts. Mr Nixon suggested that we each ask ourselves 'not just what will government do for me, but what can I do for myself.' In Nixon's acceptance speech on his second nomination, the principle of possessive individualism was applied to welfare and social security: 'Let us be generous to those who can't work, without increasing the tax burden of those who do work.' 4 The statement is nicely calculated to deflect attention from the maldistribution of wealth and to smother any tendency toward a fresh outburst of social generosity. One reflects that the former president virtually dispensed with the role of government in the arena of domestic politics - almost, but not quite, because there is one function of government about which Nixon was very emphatic. This is the activity of the government in a society of possessive and hermetically encased individuals in providing them with safety from violence for their persons and possessions. In keeping with this principle, Nixon stated in his acceptance speech on his renomination that 'the first civil right of every American is to be free from domestic violence' and 'I want the peace officers across America to know that they have the total backing of their President in the fight against crime.' Nixon's fabled self-control may be seen as the psychological counterpart 4 New York Times 25 August 1972

153 The predicament of the activity of the policing sovereign maintaining order in the public sphere. Self-control was the most prominent feature of Nixon's personality, whether dueling with the press corps or taking a walk on the beach in a business suit.5 If we punch through to the other side of the descriptive facade offered up by pluralist empiricism, we shall find a society of desperate, isolate figures under immense strain, as Richard Nixon was.6 As a person and as our former chief executive, he is a symbol of the liberal tradition at dead end. The 1972 presidential elections was an important victory for reactionary liberalism over reform politics. The growing strength of reaction and the demise of reform politics suggest that the old formulas of pragmatic reformist change do not work. The task which is prior to pragmatic change and, therefore, currently the most urgent is philosophical. A full-throated exposition of the principles of the liberal-democratic faith was provided by George McGovern and the reformers. He saw a need to protect elements of the liberal heritage such as procedural due process, an independent judiciary, the rights of conscientious political action, equality of opportunity, and the balances of the constitutional system. Nixon enthusiastically supported only two elements of the American liberal tradition: possessive individualism and a merely policing sovereign. But the collapsed statement of the American credo provided by Nixon won overwhelming support in the 1972 electoral contest with McGovern and the reformers. Such an outcome suggests that the American predicament is more severe than the reformers have been willing to grant. The reform tradition in America, if it persists, will continue to encounter great frustrations because it has a shallow understanding of the American predicament. On the other hand, a reactionary movement such as the one led by Nixon depreciates the mind of its followers and heavily relies on coercion. A second major feature of the current predicament is the eclipse of the political by the dominant persuasion in American political science, pluralist empiricism. This view identifies the working arrangements of American politics with the workings of nature itself and talks about all human action within the political system as though it were the product of wholly superior, 'natural' forces. Oddly, the prejudice which associates the empirical realities of American politics with the operations of 5 See the account given by Garry Wills Nixon Agonistes (New York, Signet Books 1971). 6 For a devastating portrait of the American psyche see Joseph Heller Something Happened (New York, Ballantine Books 1974).

154 Hobbes and America nature is considered to be a 'scientific' element in pluralist empiricism. An illustration of the transformation of liberalism into a pseudo-science is afforded by Robert Dahl's discussion of politics as 'influence/ Politics is 'influence,' Dahl says, and influence is 'a relation among actors in which one actor induces other actors to act in some way they would not otherwise act.'7 Dahl states that the concept of 'influence' rests on 'intuitive notions very similar to those on which the idea of force rests in mechanics.' 8 Individuals, we may take it, are like the component parts of a machine, driven by wholly alien, external, and mechanical forces. For what is life we may ask, embellishing matters with a little of Hobbes, 'but a motion of Limbs, the beginning whereof is in some principall part within'? 9 We learn from Dahl that the things which are the most influential in the lives of individuals and groups are a promise of rewards or a threat of sanctions.1 So, Dahl is saying, politics is universally a relation between a particular A and a particular B, where A induces B to something he would prefer not to do, through a promise of rewards or threat of sanctions. Given his conception of politics, Dahl cannot distinguish between legitimate and illegitimate uses of influence (or power). Every man must decide for himself when power is being illegitimately exercised and he may justifiably resist.2 This conception of politics is itself a part of politics. The description of politics which Dahl provides, as though in all times and places politics could be so described, is pure Hobbesian liberalism. Built into Dahl's conception of politics is, first, the familiar Hobbesian principle of politics as conflict and conflict-management. Influential, as Dahl says, are invariably inducing others to act "in some way they would not otherwise act,' and, implicitly, would prefer not to act, through a promise of rewards or threat of sanctions. Since influential deal relationally only with those who have 'influence' (bribes and threats) at their disposal and manipulatively with all others, inequality and conflict are unavoidable. Nevertheless, conflict must be managed. If it is not, non-influentials may be driven to violence as a last resort against the prevailing distribution of power. Second, Dahl's conception of politics preserves the profoundly skeptical outlook of Hobbes. The notion of classical 7 Robert Dahl Modern Political Analysis 2nd ed. (Englewood Cliffs, NJ, PrenticeHall 1970) 17 8 Ibid. 20 9 Thomas Hobbes Leviathan (Oxford, Basil Blackwell 1957) introduction 1 Dahl Modern Political Analysis 33-4 2 Ibid. 34

155 The predicament political philosophy that politics is discussion leading to agreement on the ends of human action is set aside. For Hobbes and for Dahl discussion of the reasons, intentions, and motives supplied by individual agents for their actions, leading to further discussion of the rules which should govern action, is philosophically uninteresting. Agreement on the ends of human action is, in principle, discounted by Dahl and Hobbes, and this produces a shift of attention to alien, external, mechanical forces outside the individual - 'influence' in the language of Dahl, or 'power' as Hobbes says - which can be described free of the language of appraisal. Both Dahl and Hobbes share the view that in the absence of agreement on the ends of human action, bribes and threats alone will induce action. It is essential to Hobbes and Dahl that individual consciousness not be modified or abridged by the introduction of civil authority. This can only be achieved through a conception of politics purged of any trace of inter-subjectivity or moral agreement. In both Dahl and Hobbes a 'science of polities' supports the presence of a coercive authority who maintains a rule of action merely, never meddling in affairs of conscience or belief. Finally, politics is individualistic and transactional for Dahl and Hobbes. The context in which politics occurs for Dahl, as mentioned above, involves situations where a particular A is attempting to induce a particular B to do something he would not otherwise do through promise of rewards or threat of sanctions. These are independently situated political actors, as Hobbes visualized it, engaging in transactional relations on the terms on which they are prepared to create and sustain civil authority. Individuals, face to face, dealing with each other in the coin of self-interest, are the irreducible political situation for the liberal persuasion. Dahl says that the politics which he describes is 'relational,' involving the consent of B to the performance of the act which A desires. But he also says that the concept of influence, as noted above, rests on 'intuitive notions very similar to those on which the idea of force rests in mechanics. ' The relation which Dahl is describing between A and B, therefore, is a very tenuous one. It is void of the inter-subjective agreements which the classical philosophers considered indispensable to the creation of political order. The 'relational' concept which Dahl suggests is of the sort that exists between the Hobbesian sovereign and his subjects. The sovereign 'influences' us to do what we would not otherwise do, maintain the promises of the covenant relationship, through threatening, on necessary occasions, to use the power of the sword against our person. It is true that the use of the sword implies the defeat of politics, for then the 'relation' between sovereign and sub-

156 Hobbes and America ject is broken down. But a reasonable fear of state power is a substantial ingredient of the individual's consent to political rule. The naive empiricism of the pluralists, the fantasies of the reformers, and the reactionary dogmas of the Nixon years are the main features of the liberal malaise in America. Critics of the political system often take the maldistribution of influence to be the major problem of American politics. Such a formula does not require much thought and is widely accepted. But this formula is too easy. A more accurate statement of the predicament is that American liberalism is blind to its shortcomings and, thus, we do not know what to do with the influence we possess. Such a condition affects all, influentials and non-influentials alike. One must suppose that 'influentials,' if they knew how, would deploy American political institutions to attend to widespread social problems, reduce propensities toward violence, and stop the costly spread of political corruption. After all, these problems intrude into the life of the well-off as well as of ordinary Americans. The rub is that the influentials do not grasp the general dimensions of the predicament in which all are located and from which all suffer. Myths of constitutional purpose, a misguided and naive empiricism, and the politics of reaction conspire to obscure political vision and to confound political discourse. The crucial contests of our society, therefore, will be fought over conflicting claims to political knowledge. And while the battle ensues, we shall be preserved, so it is hoped, not by an ideal of civilization, for Hobbes and his successors do not supply one, but by the marginal, coercive order maintained by the presence of the policeman pn the beat.

Index

absolutism: in Hobbes 92; in Locke 110-12, 115; in Madison 126-7 in Thoreau 135-7 American Revolution: see revolution Aristotle 46n, 118 authoritarianism: in Hobbes 91; in Locke 113-14 authority: in Hobbes 90-1, 94n; in Locke 112; in Madison 128 Bachrach, Peter 17n Burns, James MacGregor 36,41-6 Calhoun, John C.: and Hobbes 96-7; and Thoreau 134, 139; numerical and concurrent majority 134-5 checks and balances 51-2 civil disobedience 139 Civil War(s): in America 26, 139; in England 55-66 Clark Ramsey 23 conflict-management: see social conflict consent: in Hobbes 79-82; in Locke 109-10 constitution (American): as historical

enthusiasm 7 ; as written memorandum of association 7 ; as set of working arrangements 7-8,32 constitutionalism: conflicting interpretations of 5-8,31-3,149-51; popular sovereignty interpretation 40-6; natural law interpretation 4753, 60-1; conflict-management interpretation 85-91, 94-6 conurbation 17-19 corruption: in American politics 28-31; in Hobbesian theory 86-7; in Lockean theory 117 covenant: see consent Dahl, Robert A. 6, 15-16, 154-6; and see pluralist-empiricism Darwinism: see social Darwinism Declaration of Independence 73 Diamond, Martin 51-2 Emerson, R.W. 136 empiricism: see pluralist-empiricism energy-management 20-2 environmental pollution 20-2 equality: in Hobbes 76-7; in Locke 103-4

158 Index federalism: see Federalist theory Federalist theory 9-12,126-8 Gurr, Ted Robert 24 Hamilton, Alexander 11-12,133-4 Hartz, Louis 72-3, 121, 151-2 Henrician reformation 55-8,65-6 Hobbes, Thomas: and commercial Protestant culture 55-66; defense of monarchy 57-8, 71, 87; and classical theory 58-62, 93-4; as a revolutionary 68-9; influence on Locke 68, 70-1, 101; as a liberal-democrat 75-6; concept of politics 85-7,154-6; theory of conflict-management 8591, 94-6; dilemmas of theory 98-9; and see liberalism, liberal democracy, constitution (American), conflictmanagement Holcombe, Arthur N. 35-6,46-53 inalienable rights: in Hobbes and Locke 81-5 independence movements: in American politics 24-8; among religious sects 65 ; and Protestant absolutism 135-7; and see absolutism, rebellion, Thoreau, Henry D. liberalism: operation 10-16, 85-8, 124-33; origin 58-66; idea 76-84; predicament 98-9, 151-6; transmission 100-20; and see liberal democracy, constitution (American), reactionary liberalism, Hobbes, Thomas, and Locke, John liberal democracy: as working arrangements 10-16, 85-8,124-33; as ideology 65-6,68-72, 120-1; as philosophy 75 -84; and see liberalism

Locke, John : defense of monarchy 5 8 ; and commercial Protestantism 65-6, 107-9; as a controversialist 68-72; and Whig theory of history 69-72; relation to Hobbes 100-1,107-12; and natural law theory 102 -7; theory of possessive individualism 103 -5 ; doctrine of consent 109-10; metamorphosis of Leviathan 113-14; theory of separation of powers 11519 Lowi, Theodore 29n, 33n Machiavelli 30 Mcllwain, Charles Howard 50 Macpherson,C.B. 63,66,69 Madison, James 9-11,127-32 Marx, Karl 138 myths of American politics 34-40 natural law 100 -7,119 -20 ; and see Holcombe, Arthur N. natural right: see inalienable rights Neustadt, Richard E. 12-13, 29-31 Nixon, Richard M. 16,20, 151-2; and see reactionary liberalism Oakeshott, Michael 8n, 58n,76n,80n, 92n Parenti, Michael 15 paternal authority : in Locke 113 ; in Sumner 140-1 Pitkin, Hannah 96-7 pluralist-empiricism: and reform politics 5-6, 32-3, 38, 53; limitations of 9, 16, 153-6; and the 'operative realities' 9-16; reif i cation of 9 , 3 3 , 154; and Federalist theory 12-16; compared to European pluralism 13 14; and see Dahl, Robert A.

159 Index political parties: reform of 40-1, 43 -4 political tradition 7, 54-5, 59n, 100-1; and see liberalism pollution: see environmental pollution popular sovereignty 40-6; and see Burns, James MacGregor power 90,98-9 presidential leadership 12-13, 36,41-3 property: in Hobbes 82-4, 94; in Locke 82-4, 103-6; in Madison 83, 124-5; inCalhoun 135 Protestant-bourgeois culture 63-4 reactionary liberalism 152-3; and see liberalism rebellion 25-8, 73-4, 122-3, 137-9; and see revolution, independence movements, inalienable rights recidivism 22-3 reform: varieties of 7-8, 35-6; and myth 34, 37-8; limits of 43-6, 53, 150-1, 153; and see Burns, James MacGregor, and Holcombe, Arthur N. representation 96-7 republicanism 130-2; and see Madison, James revolution: American 25-6, 72-4,121-3; 'Glorious' 66-72; and see rebellion Roelofs, H. Mark 7n, 24n Rubenstein, Richard E. 24-8 separation of powers 49-51, 115-19, 126-8 social compact: in Hobbes 79-81; in Locke 109; and see consent social conflict (management of): in Madison 10, 129-32; in Hobbes 8591,94-6; in Locke 117-18; and see rebellion, inalienable rights, independence movements

social Darwinism 140-4; and see Surhner, William Graham sovereign (office of) 62,89-90,92-4 sovereignty: of a policing official 1112, 133; of the people 3 5 , 4 0 ; o f a pattern of law 35, 46-9; in Hobbes 61-2, 93-4; in Locke 113-14 state of nature: as a literary device 5862; in Hobbes 58-66; as a cultural event 62-6; in Locke 107-9; and the American frontier 121; in Madison 125-6 Strauss, Leo 78n, 98n structural unemployment 19-20 Sumner, William Graham 140-4 Supreme Court 36, 46-9, 52 Tawney, R.H. 61n, 69n Thoreau, Henry David 135-40 Toqueville, Alexis de 13,73 transactional politics: 28-9, 85-8, 95, 128; and see social conflict (management of) violence: propensities toward in American politics 23-8; in Hobbes 98-9; and see state of nature, inalienable rights, rebellion, independence movements Watergate 30-1 ; and see Nixon, Richard M. Whig theory of history 67-72 ; and see Locke, John Winch, Peter 8n Wolff, Robert Paul 16-17 Wolin, Sheldon 8n, 70n,72n Young Lords 20n