The American Founding: Its Intellectual and Moral Framework 9781501300714, 9781441140708, 9781441142443

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Acknowledgements T

he editors acknowledge the full support of the Wheatley Institution in every phase of this project. The editors also wish to acknowledge the unstinting support of Marie-Claire Antoine, our editor at Continuum, and the project manager, Kim Storry, as well as a most able student assistant at BYU, Kristen Cardon.

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Foreword C

ontemporary life in the Western democracies moves increasingly away from the core assumptions and larger aims to which Western civilization has given full expression. The problems are general rather than regional or national, though they appear with worrisome intensity and persistence in the United States. There is little attention given to the intellectual and moral foundations of civic life in our democracy and to the institutions traditionally established for the preservation of these foundations: the government, the schools, the courts, the arts, the churches and the family. Within higher education – itself a varied and often aimless congeries of less than disciplined academic studies – virtually no attention is paid to the presuppositions of life under the rule of law, of civic life in general. Certainly little attention is given to the absolute necessity of preparation for such a life or to the signs that such a life may not be a “given” and thus to the real possibility that it may not perdure. So, too, with contemporary family life in which it seems that neither the lessons nor the models of moral progress appear with the regularity required if children are in time to occupy responsible positions in the public world. “The American Founding” is designed to be at once an inquiry into the constitutive principles of civic life and also a ‘diagnostic’ laying out the signs and symptoms of challenges to such a life. The inquiry is by way of illustrations drawn from significant moments in the American Founding; moments that were themselves foundational and that were marked by instructive achievements of both thought and practice that constitute civic virtue in the novus ordo seclorum that is (or was) America. The seven chapters of the volume move from a statement of the theory of “natural-law” (Robert George) to a concluding analysis of the core moral assumptions on which the very idea of constitutionalism is based (Hadley P. Arkes) and which our particular constitution was intended to reveal and to teach. The contents of these chapters reach basic precepts that were surely embraced by the founding generation though rarely explicitly enumerated. However, in the public record compiled by the Founders – a record of documents, of buildings, of proposals and clearly articulated values and assumptions – we find their persistent attempt to realize in fact what must

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x Foreword

already be absorbed and embraced in principle by those who would found such a civic order, and no less so, by those who would preserve it. Michael Novak turns to the inspirational texts; the Bible and that JudeoChristian image of the special nature and dignity of the person so central to the political and social cohesion of those who came to America and proceeded to create a nation. There were still other “texts”, central among them the record of philosophical and political thought bequeathed by ancient Greece and Rome. Carl Richard examines these sources and connects them firmly to the political assumptions and aspirations of the founding generation. Thomas West then summarizes and critically assesses the universalist conception of the very point and purposes of civic life and the basis on which the Founders judged their creation to be right, and revelatory of the nature of humanity at large. Perhaps the most public of “texts” are the buildings and civic spaces that physically house and serve the bearers and beneficiaries of the word. Carroll Westfall traces the creation of the cities of the New World and the statements they were intended to make. Architecture speaks and teaches. The city itself is a lifelong teacher. These spaces and physical structures of civic life teach without words and reflect how committed the Founders were to the very process of education; an education for self-governance; an education fitting for those understood to be rights-bearing defenders of the American ideals. Daniel Robinson explores the letters and essays that record the centrality of education in the thoughts and actions of the Founders. Finally, what moral and intellectual work must already be accomplished for any worthy exercise in constitutionalism to be taken seriously? If, as we often hear, the United States is a nation ruled by law, not by men, how is such a position justified? On what basis is it supposed to appeal to those thus ruled? These are the issues addressed by Hadley Arkes to conclude the volume. A relatively brief collection of essay-chapters on so vast a subject must, of course, be content to offer leads rather than canonical summaries. Any number of controversial issues are left unresolved, though the footnotes and bibliography offer the interested reader a veritable library of wholesomely argumentative and scholarly discussions. John Adams was more or less convinced that what the Founders had produced was right chiefly for a Christian people, as he put it, but he surely meant by this something more subtle and variegated than sectarian loyalties. He meant for a people described by and summoned to the values and tenets discussed here in the first three chapters. Just in case those very values and tenets should at some future time be rejected or forgotten, it is unclear that the binding precepts of the American experience could retain any effective power. It is timely to think about this.

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Contributors Hadley P. Arkes is a political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966. He is author of First Things: An Inquiry into the First Principles of Morals and Justice (1986), Beyond the Constitution (1992), The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (1997), Natural Rights and the Right to Choose (2002) and Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural-law (2010). Robert P. George is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law. He also serves as the director of the James Madison Program in American Ideals and Institutions. He is author or editor of many books, including Natural-law Theory: Contemporary Essays (1992), Making Men Moral (1995), In Defense of Natural-law (1999), Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (2001) and Body-Self Dualism (2007). Michael Novak was awarded the Templeton Prize for Progress in Religion in 1994. He served as United States Ambassador to the United Nations Commission on Human Rights in 1981 and 1982. He is the author of more than 25 books on the philosophy and theology of culture, including the now classic, The Spirit of Democratic Capitalism (1982). His other books include Rise of the Unmeltable Ethnics (1972), The Experience of Nothingness (1970; revised and expanded 1998) and Belief and Unbelief, a Philosophy of Self-Knowledge (1965; 3rd ed. 1994). Carl J. Richard is Professor of History at the University of Louisiana at Lafayette. His research and teaching focus on early national American history and U.S. intellectual history. His books include The Founders and the Classics: Greece, Rome, and the American Englightenment (1994), Twelve Greeks and Romans Who Changed the World (2003), The Battle for the American Mind: A Brief History of a Nation’s Thought (2004), Greeks and Romans Bearing Gifts: How the Ancients Inspired the Founding Fathers (2008), The Golden Age of

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the Classics in America: Greece, Rome, and the Antebellum United States (2009), and Why We’re All Romans: The Roman Contribution to the Western World (2010). Daniel N. Robinson is a Distinguished Professor Emeritus of Philosophy at Georgetown University and a member of the philosophy faculty of Oxford University. He is author and editor of many volumes covering a wide range of subjects. His books include An Intellectual History of Psychology (1976; 3rd ed. 1995), Psychology and Law: Can Justice Survive the Social Sciences? (1980), Toward a Science of Human Nature: Essays on the Psychologies of Hegel, Mill, Wundt and James (1982), Aristotle’s Psychology (1989), Wild Beasts and Idle Humours: The Insanity Defense from Antiquity to the Present (1996), Praise and Blame: Moral Realism and Its Applications (2002) and Consciousness and Mental Life (2008). Thomas G. West is Professor of Politics at Hillsdale College, and a Senior Fellow of the Claremont Institute. He is the author of Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America. His recent publications include “Freedom of Speech in the Founding and in Modern Liberalism,” “The Transformation of Protestant Theology as a Condition of the American Revolution,” and “Progressivism and the Transformation of American Government.” He is co-translator of Four Texts on Socrates: Plato’s Euthyphro, Apology, and Crito, and Aristophanes’ Clouds. Carroll William Westfall is Frank Montana Professor in Notre Dame’s School of Architecture, serving as Chairman from 1998 to 2002. His books include In This Most Perfect Paradise: Alberti, Nicholas V, and the Invention of Conscious Urban Planning in Rome, 1447–1455 (1974), Architectural Principles in the Age of Historicism, with Robert Jan van Pelt (1991) and Chicago’s Classical Architecture: The Legacy of the White City (2006) with David Stone. Richard N. Williams is Professor of Psychology at Brigham Young University. He is Director of BYU’s Wheatley Institution. His books include Psychology for the Other: Levinas, Ethics and the Practice (2002) with Edward Gantt, Critical Issues in Psychotherapy (2001) with B. D. Slife and S. H. Barlow, and What’s Behind the Research: Discovering Hidden Assumptions in the Behavioral Sciences (1995) with Brent Slife.

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Natural-Law, God, and Human Dignity Robert P. George

Introduction

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braham Lincoln began his remarks at Gettysburg in 1863, by noting that the nation he served, and was fighting a civil war to preserve, was founded “four score and seven years ago.” As Hadley Arkes has observed, if one does the arithmetic, this takes us back, not to the ratification of the Constitution in 1788 or its adoption by the constitutional convention in 1787, but to the signing and publishing of the Declaration of Independence, in 1776. In this matter, as in so many others, Lincoln’s understanding was very much in line with the nation’s founders. They, too, believed that with the Declaration they established a new nation, albeit one whose political institutions and fundamental law were changed in significant ways by the Constitution and then by its Amendments. Lincoln observed that the nation they founded was “conceived in liberty and dedicated to the proposition that all men are created equal.” This “natural-law” understanding of the American founding and the American regime is, once again, something Lincoln held in common with the founders themselves. As the Declaration itself proclaims, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, among these are Life, Liberty, and the pursuit of Happiness.”

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2 The American Founding

It was on this basis that America’s founding statesmen launched their “experiment in ordered liberty,” the experiment that would, as Lincoln would go on to say at Gettysburg, test whether a true regime of republican government “can long endure,” and whether “government of the people, by the people, and for the people,” i.e., republican government, would survive on the North American continent, or, alas, “perish from the earth.” So the experiment was a bold one. Yet, Thomas Jefferson, the principal draftsman of the Declaration, had insisted that there was nothing novel about that naturallaw philosophy that he and his colleagues had set forth in that document as the basis of republican liberty in the new nation. Reflecting on the Declaration in May of 1825, a little more than a year before his death, Jefferson said in a letter to Henry Lee that the point of the document was: [n]ot to find out new principles or new arguments never before thought of, nor merely to say things that had never been said before, but to place before mankind the common sense of the subject … [I]t was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests on the harmonizing sentiments of the day, whether expressed in conversations, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc. Now, it goes without saying that Jefferson, a learned man, was aware that in a vast range of particulars Aristotle’s approach to practical reason and moral and political theory differs from Cicero’s approach, which in turn differs from Locke’s approach, and so on. So it would obviously be erroneous to interpret Jefferson as claiming that the United States of America was founded on a particular natural-law theory that was common to the four figures in the history of political philosophy he mentions, plus others whose influence he signals with that “etc.” The claim, rather, I believe, is that the “American mind” that produced the Declaration, and the “harmonizing sentiments of the day” that prompted the bold and dangerous decision to rebel against the British crown, were deeply informed by the broad tradition of reflection about moral truth and its relationship to political order that includes Greek philosophers and Roman jurists of antiquity – the true founders of the natural-law tradition – and continues through the Enlightenment thinkers of the founders’ own time. In the pages that follow, I set forth and defend an account of naturallaw and natural rights which is broadly Aristotelian (and Thomistic) in its fundamental conceptions. I do not claim that it reproduces with anything approaching exactitude the thought of America’s founding fathers; but it does

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emerge from the broad tradition which Jefferson identifies as being among the key sources of the beliefs and sentiments that emboldened those heroic statesmen to pledge their “lives, fortunes, and sacred honor” in the cause of a law even higher than the rules laid down by kings or parliaments.

Knowledge of natural-law One’s knowledge of natural-law, like all knowledge, begins with experience, but it does not end or even tarry there. Knowing is an activity – an intellectual activity, to be sure, but an activity nonetheless. We all have the experience of knowing. But to know is not merely to experience. Knowing is a complex and dynamic activity. The role of experience in the activity of knowing is to supply data on which the inquiring intellect works in the cause of achieving understanding. Insights are insights into data. They are, as Bernard Lonergan brilliantly demonstrated by inviting readers to observe and reflect on their own ordinary intellectual operations, the fruit of a dynamic and integrated process of experiencing, understanding, and judging.1 So what are the data supplied by experience that are at the foundation of practical judgments, that is to say, insights that constitute knowledge of natural-law? They are the objects of intelligibly choice-worthy possibilities – possibilities that, inasmuch as they provide reasons for acting of a certain sort (that is, more-than-merely-instrumental reasons), we grasp as opportunities. In our experience of true friendship, for example, we grasp by what is ordinarily an effortless exercise of what Aristotle called “practical reason” the intelligible point of having and being a friend. We understand that friendship is desirable not merely for instrumental reasons – indeed a purely instrumental friendship would be no friendship at all – but above all for its own sake. Because we grasp the intelligible point of having and being a friend, and we understand that the fundamental point of friendship is friendship itself, and certainly not goals extrinsic to friendship to which the activity of friendship is merely a means, we reasonably judge that friendship is intrinsically valuable. We know that friendship is a constitutive and irreducible aspect of human well-being and fulfillment, and that precisely as such friendship provides a reason for action of the sort that requires for its intelligibility as a reason no further or deeper reason or sub-rational motivating factor to which it is a means. The same is true if we shift our focus to our experience of the activity of knowing itself. In our experience of wonder and curiosity, of raising questions and devising strategies for obtaining correct answers, of executing those strategies by carrying out lines of inquiry, of achieving insights, we grasp (by

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4 The American Founding

what is again for most people in most circumstances an effortless exercise of practical reason) the intelligible point of searching for truth and finding it. We understand that knowledge, though it may have tremendous instrumental value, is intrinsically valuable as well. To be attentive, informed, thoughtful, clear-headed, careful, critical, and judicious in one’s thinking and judging, is to be inherently enriched in a key dimension of human life. We reasonably judge the activity of knowing, then, to be an intrinsic (or “basic”) human good – a constitutive and irreducible aspect of our flourishing as human beings. Like friendship and a number of other types of activity, knowledge provides a reason for choice and action that requires for its intelligibility as a reason no further or deeper reason or sub-rational source of motivation to which it is a means. Knowledge of natural-law, then, is not innate. It does not swing free of experience or of the data provided by experience. Even when it is easily achieved, practical knowledge (i.e., knowledge of natural-law) is an achievement. It is the fruit of insights which, like all insights, are insights into data, data which are supplied by experience. The insight – the knowledge – that friendship or knowledge itself is intrinsically humanly fulfilling is ultimately rooted in our elementary experiences of the activities of friendship and knowing, Apart from those experiences, there would be no data on which practical reason could work to yield understanding of the intelligible point (and, thus, of the value) of friendship or knowledge and the judgment that these activities are intrinsic fulfillments of the human person and, as such, objects of the primary principles of practical reason and basic precepts of natural-law. Of course, not all practical knowledge is, strictly speaking, moral knowledge (that is, knowledge of moral norms or their correct applications), though all moral knowledge is practical knowledge – it is (or centrally includes) knowledge of principles for the direction and guidance of action.2 Yet knowledge of the most fundamental practical principles directing action towards the basic human goods and away from their privations, though not strictly speaking knowledge of moral norms, is foundational to the generation and identification of such norms. That is because moral norms are principles that guide our actions in line with the primary practical principles integrally conceived. Norms of morality are entailments of the integral directiveness or prescriptivity of the various aspects of human well-being and fulfillment that together constitute the ideal of integral human flourishing. So, if the first principle of practical reason is, as Aquinas says, “the good is to be done and pursued, and the bad is to be avoided,”3 then the first principle of morality is that “one ought always to choose and otherwise will in a way that is compatible with a will towards integral human fulfillment.”4 And

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just as the first principle of practical reason is specified, as Aquinas makes clear, by identifying the various irreducible aspects of human well-being and fulfillment (namely, friendship, knowledge, aesthetic appreciation, skillful performance, religion, and so forth), so too the first principle of morality is specified by identifying the norms of conduct that are entailed by an openhearted love of the human good (that is, the good of human persons) taken as a whole.

Natural-law and human rights A natural-law theory is a critical reflective account of the constitutive aspects of the well-being and fulfillment of human persons and the communities they form. Such a theory will propose to identify principles of right action – moral principles – specifying the first and most general principle of morality, namely, that one should choose and act in ways that are compatible with a will towards integral human fulfillment. Among these principles is respect for rights people possess simply by virtue of their humanity – rights which, as a matter of justice, others are bound to respect, and governments are bound not only to respect but, to the extent possible, also to protect. Natural-law theorists of my ilk understand human fulfillment – the human good – as variegated. There are many irreducible dimensions of human wellbeing. This is not to deny that human nature is determinate. It is to affirm that our nature, though determinate, is complex. We are animals, but rational. Our integral good includes our bodily well-being, but also our intellectual, moral, and spiritual well-being. We are individuals, but friendship and sociability are constitutive aspects of our flourishing. By reflecting on the basic goods of human nature, especially those most immediately pertaining to social and political life, natural-law theorists propose to arrive at a sound understanding of principles of justice, including those principles we call human rights. In light of what I’ve already said about how natural-law theorists understand human nature and the human good, it should be no surprise to learn that natural-law theorists typically reject both strict individualism and collectivism. Individualism overlooks the intrinsic value of human sociability and tends mistakenly to view human beings atomistically. It fails to account for the intrinsic value of friendship and other aspects of human sociability, reducing all relationships to means by which the partners collaborate with a view to more fully or efficiently achieving their individual goals and objectives. Collectivism compromises the dignity of human beings by tending to instrumentalize and subordinate them and their well-being to the interests of larger social units – the community, the state, the volk, the

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fatherland, the führer, the future communist utopia. Individualists and collectivists both have theories of justice and human rights, but they are, as I see it, highly unsatisfactory. They are rooted in important misunderstandings of human nature and the human good. Neither can do justice to the concept of a human person, that is, a rational animal who is a locus of intrinsic value (and, as such, an end-in-himself who may never legitimately treat himself or be treated by others as a mere means), but whose well-being intrinsically includes relationships with others and membership in communities (beginning with the family) in which he or she has, as a matter of justice, both rights and responsibilities. Human rights exist if it is the case that there are principles of practical reason directing us to act or abstain from acting in certain ways out of respect for the well-being and the dignity of persons whose legitimate interests may be affected by what we do. I certainly believe that there are such principles. They cannot be overridden by considerations of utility. At a very general level, they direct us, in Kant’s phrase, to treat human beings always as ends and never as means only. When we begin to specify this general norm, we identify important negative duties, such as the duty to refrain from enslaving people. Although we need not put the matter in terms of “rights,” it is perfectly reasonable, and I believe helpful, to speak of a right against being enslaved, and to speak of slavery as a violation of human rights. It is a right that people have, not by virtue of being members of a certain race, sex, class, or ethnic group, but simply by virtue of our humanity.5 In that sense, it is a human right. But there are, in addition to negative duties and their corresponding rights, certain positive duties. And these, too, can be articulated and discussed in the language of rights, though here it is especially important that we be clear about by whom and how a given right is to be honored. Sometimes it is said, for example, that education or health care is a human right. It is certainly not unreasonable to speak this way; but much more needs to be said if it is to be a meaningful statement. Who is supposed to provide education or health care to whom? Why should those persons or institutions be the providers? What place should the provision of education or health care occupy on the list of social and political priorities? Is it better for education and health care to be provided by governments under socialized systems, or by private providers in markets? These questions go beyond the application of moral principles. They require prudential judgment in light of the contingent circumstances people face in a given society at a given point in time. Often, there is not a single, uniquely correct answer. The answer to each question can lead to further questions; and the problems can be extremely complex, far more complex than the issue of slavery, where, once a right has been identified, its universality and the basic terms of its application are fairly clear. Everybody

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has a moral right not to be enslaved, and everybody an obligation as a matter of strict justice to refrain from enslaving others; governments have a moral obligation to respect and protect the right and, correspondingly, to enforce the obligation.6 What I’ve said so far will provide a pretty good idea of how I think we ought to go about identifying what are human rights. But in each case the argument must be made, and in many cases there are complexities to the argument. One basic human right that almost all natural-law theorists would say belongs in the set is the right of an innocent person not to be directly killed or maimed. This is a right that is violated when someone makes the death or injury of another person the precise object of his action. It is the right that grounds the norm against targeting non-combatants, even in justified wars, and against abortion, euthanasia, the killing of hostages, and so forth. Of course, in the case of abortion, some people argue that human beings in the embryonic or fetal stages of development do not yet qualify as persons and so do not possess human rights; and in the case of euthanasia, some argue that permanently comatose or severely retarded or demented people do not (or no longer) qualify as rights-bearers. I think that these claims are mistaken, but I won’t here go into my reasons for holding that the moral status of a human being does not depend on his or her age, size, stage of development, or condition of dependency. I’ve presented this argument in great detail in numerous places, including my recent book Embryo: A Defense of Human Life (with Christopher Tollefsen).7 Here I will say only that people who do not share with me the conviction that human beings in early stages of development and in severely debilitated conditions are rights-bearers, may nevertheless agree that whoever qualifies as a person is protected by the norm against direct killing of the innocent.

Human dignity The natural-law understanding of human rights I am here sketching is connected with a particular account of human dignity. Under that account, the natural human capacities for reason and freedom are fundamental to the dignity of human beings – the dignity that is protected by human rights. The basic goods of human nature are the goods of a rational creature – a creature who, unless impaired or prevented from doing so, naturally develops and exercises capacities for deliberation, judgment, and choice. These capacities are God-like – albeit, of course, in a limited way. In fact, from the theological vantage point they constitute a certain sharing – limited, to be sure, but real – in divine power. This is what is meant, I believe, by the otherwise

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extraordinarily puzzling biblical teaching that man is made in the very image and likeness of God. But whether or not one recognizes biblical authority or believes in a personal God, it is true that human beings possess a power traditionally ascribed to divinity – namely, the power of an agent to cause what the agent is not caused to cause. This is the power to envisage a possible reality or state of affairs that does not now exist or obtain, to grasp the intelligible point – the value – of bringing it into being, and then to act by choice (and not merely by impulse or instinct, as a brute animal might) to bring it into being. That state of affairs may be anything from the development of an intellectual skill or the attainment of an item of knowledge, to the creation or critical appreciation of a work of art, to the establishment of marital communion. Its moral or cultural significance may be great or, far more commonly, comparatively minor. What matters for the point I am now making is that it is a product of human reason and freedom. It is the fruit of deliberation, judgment, and choice. Of course, a further question will present itself to the mind of anyone who recognizes the God-likeness of our capacities for rationality and freedom, capacities that are immaterial and spiritual in nature. That question is whether beings capable of such powers could exist apart from a divine source and ground of their being. So one finds in the affirmation of these powers a decisive ground for the rejection of materialism, and one discerns the basis of an openness to, and even the roots of an argument for, theism. But more on that point later. Now, what about the authority for this view of human nature, the human good, human dignity, and human rights? Natural-law theorists are interested in the intelligible reasons people have for their choices and actions. We are particularly interested in reasons that can be identified without appeal to any authority apart from the authority of reason itself. This is not to deny that it is often reasonable to recognize and submit to religious or secular (e.g., legal) authority in deciding what to do and not do. Indeed, natural-law theorists have made important contributions to understanding why and how people can sometimes be morally bound to submit to, and be guided in their actions by, authority of various types. Think, for example, of Yves Simon’s work8 and John Finnis’s.9 But even here, the special concern of natural-law theorists is with the reasons people have for recognizing and honoring claims to authority. We do not simply appeal to authority to justify authority. One might then ask whether human beings are in fact rational in anything more than an instrumental sense. Can we discern any intelligible reasons for human choices and actions? Everybody recognizes that some ends or purposes pursued through human action are intelligible at least insofar as they provide means to other ends. For example, people work to earn money,

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and their doing so is perfectly rational. Money is a valuable means to a great many important ends. No one doubts its instrumental value. The question is whether some ends or purposes are intelligible as providing more than merely instrumental reasons for acting. Are there intrinsic, as well as instrumental, goods? Skeptics deny that there are intelligible ends or purposes that make possible rationally motivated action. Natural-law theorists, by contrast, hold that friendship, knowledge, critical aesthetic appreciation, and certain other ends or purposes are intrinsically valuable. They are intelligibly “choice worthy,” not simply as means to other ends, but as ends-in-themselves. They cannot be reduced to, nor can their intelligible appeal be accounted for exclusively in terms of emotion, feeling, desire, or other sub-rational motivating factors. These basic human goods are constitutive aspects of the well-being and fulfillment of human persons and the communities they form, and they thereby provide the foundations of moral judgments, including our judgments pertaining to justice and human rights. Of course, there are plenty of people today who embrace philosophical or ideological doctrines that deny the human capacities I maintain are at the core of human dignity. They adopt a purely instrumental and essentially non-cognitivist view of practical reason (e.g., Hume’s view that reason is nothing more than “the slave of the passions”10) and argue that the human experience of deliberation, judgment, and choice is illusory. The ends people pursue, they insist, are ultimately given by non-rational motivating factors, such as feeling, emotion, or desire. “The thoughts are to the desires,” Hobbes has taught them to suppose, “as scouts and spies, to range abroad and find the way to the thing desired.”11 Truly rationally motivated action is impossible for creatures like us. There are no more-than-merely-instrumental reasons for action – no basic human goods. Now, if proponents of this non-cognitivist and subjectivist view of human action are right, then it seems to me that the entire business of ethics is a charade, and human dignity is a myth. But I don’t think they are right. Indeed, I don’t think that they can give any account of the norms of rationality to which they must appeal in making the case against reason and freedom that is consistent with the denial that people are capable of more-than-merely-instrumental rationality and true freedom of choice. I do not deny that emotion figures in human action – obviously it does, and on many occasions it (or other sub-rational factors) does the main work of motivation. But I maintain that people can have, and often do have, basic reasons for their actions – reasons provided by ends they understand as humanly fulfilling and desire precisely as such. These ends, too, figure in motivation.12

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Human imperfection and moral failing Now, if I and other natural-law theorists are correct in affirming that human reason can identify human rights as genuine grounds of obligation to others, how can we explain or understand widespread failures to recognize and respect human rights and other moral principles? As human beings, we are rational animals; but we are imperfectly rational. We are prone to making intellectual and moral mistakes and capable of behaving grossly unreasonably – especially when deflected by powerful emotions that run contrary to the demands of reasonableness. Christians have a name for this: sin. And another name: fallenness. We suffer weakness of will and darkness of intellect. Even when following our consciences, as we are morally bound to do, we can go wrong. A conscientious judgment may nevertheless be erroneous. Of course, sometimes people fail to recognize and respect human rights because they have self-interested motives for doing so. In most cases of exploitation, for example, the fundamental failing is moral, not intellectual. In some cases, though, intellectual and moral failures are closely connected. Selfishness, prejudice, partisanship, vanity, avarice, lust, ill-will, and other moral delinquencies can, in ways that are sometimes quite subtle, impede sound ethical judgments, including judgments pertaining to human rights. Whole cultures or subcultures can be infected with moral failings that blind large numbers of people to truths about justice and human rights; and ideologies hostile to these truths will almost always be both causes and effects of these failings. Consider, for example, the case of slavery in the antebellum American south. The ideology of white supremacy was both a cause of many people’s blindness to the wickedness of slavery, and an effect of the exploitation and degradation of its victims.

Natural-law and God Let us turn now to the question of God and religious faith in natural-law theory. Most, but not all, natural-law theorists are theists. They believe that the moral order, like every other order in human experience, is what it is because God creates and sustains it as such. In accounting for the intelligibility of the created order, they infer the existence of a free and creative intelligence – a personal God. Indeed, they typically argue that God’s creative free choice provides the only ultimately satisfactory account of the existence of the intelligibilities humans grasp in every domain of inquiry.13 Natural-law theorists do not deny that God can reveal moral truths and most believe that God has chosen to reveal many such truths. However,

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natural-law theorists also affirm that many moral truths, including some that are revealed, can also be grasped by ethical reflection apart from revelation. They assert, with St. Paul, that there is a law “written on the hearts” even of the Gentiles who did not know the law of Moses – a law the knowledge of which is sufficient for moral accountability. So the basic norms against murder and theft, for example, though revealed in the Decalogue, are knowable even apart from God’s special revelation.14 The natural-law can be known by us, and we can conform our conduct to its terms, by virtue of our natural human capacities for deliberation, judgment, and choice. The absence of a divine source of the natural-law would be a puzzling thing, just as the absence of a divine source of any and every other intelligible order in human experience would be a puzzling thing. An atheist’s puzzlement might well cause him to reconsider the idea that there is no divine source of the order we perceive and understand in the universe. It is far less likely, I think, to cause someone to conclude that our perception is illusory or that our understanding is a sham, though that is certainly logically possible. The question then arises: Can natural-law – assuming that there truly are principles of natural-law – provide some measure of common moral and even political ground for people who do not agree on the existence or the nature of God and the role of God in human affairs? In my view, anybody who acknowledges the human capacities for reason and freedom has good grounds for affirming human dignity and basic human rights. These grounds remain in place whether or not one adverts to the question: “Is there a divine source of the moral order whose tenets we discern in inquiry regarding natural-law and natural rights?” I happen to think that the answer to this question is “yes,” and that we should be open to the possibility that God has revealed himself in ways that reinforce and supplement what can be known by unaided reason. But we do not need agreement on the answer, so long as we agree about the truths that give rise to the question, namely, that human beings, possessing the God-like (literally awesome) powers of reason and freedom, are bearers of a profound dignity that is protected by certain basic rights. So, if there is a set of moral norms, including norms of justice and human rights, that can be known by rational inquiry, understanding, and judgment even apart from any special revelation, then these norms of natural-law can provide the basis for a common understanding of human rights – an understanding that can be shared even in the absence of religious agreement. Of course, we should not expect consensus. There are moral skeptics who deny that there are moral truths. There are religious fideists who hold that moral truths cannot be known apart from God’s special revelation. And even among those who believe in natural-law, there will be differences of opinion about its precise content and implications for certain issues. So it is, I believe, our

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permanent condition to discuss and debate these issues, both as a matter of abstract philosophy and as a matter of practical politics.

Challenges to natural-law philosophy It is sometimes regarded as an embarrassment to natural-law thinking that some great ancient and medieval figures in the natural-law tradition failed to recognize – and indeed have even denied – human rights that are affirmed by contemporary natural-law theorists, and even regarded as fundamental. Consider, for example, the basic human right to religious liberty. This right was not widely acknowledged in the past, and was even denied by some prominent natural-law theorists. As Professor Finnis has observed, they wrongly believed that a wide conception of liberty in matters of faith presupposed religious relativism or indifferentism, or entailed that religious vows were immoral or non-binding, or implied the comprehensive subservience of ecclesial communities to the state.15 It is interesting that when the Catholic Church put itself on record firmly in support of the right to religious freedom in the document Dignitatis Humanae of the Second Vatican Council, it presented both a natural-law argument and an argument from specifically theological sources. The natural-law argument for religious liberty is founded on the obligation of each person to pursue the truth about religious matters and to live in conformity with his or her conscientious judgments.16 This obligation is, in turn, rooted in the proposition that religion – considered as conscientious truth-seeking regarding the ultimate sources of meaning and value – is a crucial dimension of human well-being and fulfillment. It is among the basic human goods that provide rational motivation for our choosing. The right to religious liberty follows from the dignity of man as a conscientious truth-seeker. This right, and other human rights, are denied and attacked today from various quarters, and in many parts of the world are routinely violated. The ideological justification for their denial and violation can be religious or secular. In some parts of the world, religious freedom and other basic human rights are denied in the name of theological truth. In other parts of the world, the threats are from secularist ideologies. Where secularist ideologies are liberal in form, it is often claims to an overarching right to autonomy (or a corrupted version of the true right to have one’s equal dignity respected) that are asserted to justify choices, actions, and policies that natural-law theorists believe are unjust and undermine the common good. If the natural-law view of these matters is correct, then it is moral failings conspiring with intellectual errors that sustain ideologies that compromise human rights. In a certain

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sense, the failings are at opposite poles. Yet, from a natural-law vantage point partisans of the competing ideologies make valid criticisms of each other. Radical Islamists, for example, harshly condemn the decadent features of cultures in which the “me-generation” ideology of “if it feels good, do it” flourishes. On the other side, ideological liberals denounce the subjugation of women and the oppression of religious dissenters where fundamentalist Islam holds sway. As natural-law theorists see it, threats to human dignity and human rights exist because all of us, as human beings, are imperfectly reasonable and imperfectly moral. To put it in Christian terms, we are fallen creatures, sinners. At the same time, hope exists because we really do possess the capacities for reasonableness and virtue; truth – including moral truth – is accessible to us and has its own splendor and powerful appeal. We will never, in this vale of tears, grasp the truth completely or in a way that is entirely free from errors. Nor will we fully live up to the moral truths we grasp. But just as we made progress by abolishing the evil of slavery, by ending legally sanctioned racial segregation in my own country and elsewhere, by recognizing the right to religious freedom, and by turning away from the eugenics policies once favored by so many respectable people, natural-law theorists hope that we can make progress, and reverse declines, in other areas, including in the defense of human life against abortion, embryo-destructive research, and euthanasia, and in the protection and revitalization of the marriage culture, beginning with the preservation of marriage as the conjugal union of husband and wife. Of course, people who reject the natural-law understanding of human dignity and human rights will differ from natural-law theorists on questions of what constitutes progress and decline. From an Islamist point of view, the type of religious freedom defended by natural-law theorists will be regarded as licensing heresy and religious irresponsibility. Natural-law ideas will be seen as just a rhetorically toned down form of Western liberal secularism. By contrast, from a liberal secularist point of view, natural-law ideas about abortion, sexuality, and other hot-button moral issues will be regarded as intolerant and oppressive – a philosophically gussied up form of religious fundamentalism. In the end, though, natural-law ideas – like Islamist or liberal secularist ideas – will have to stand or fall on their merits. Anyone who wonders whether they are sound or unsound will have to consider the arguments offered in their support and the counterarguments advanced by their critics.

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The “new” natural-law theory As I observed in the Introduction to this chapter, there are competing accounts of natural-law and natural rights among people who are or have been regarded, or who regard themselves, as natural-law theorists. I have in various writings associated myself with what is sometimes called, the “new natural-law theory” of Germain Grisez and John Finnis. But whether there is anything much that is really new in our approach is questionable. The core of what Grisez, Finnis, and I say at the level of fundamental moral theory is present, at least implicitly, in the writings of Aristotle, Thomas Aquinas, and other ancient, medieval, and early modern thinkers. Some commentators have insisted that what we say is fundamentally new (and, from the point of view of our critics within the natural-law camp, wrongheaded) because we are resolute about respecting the distinction between description and prescription and avoiding the fallacy (as we see it) of proposing to derive normative judgments from purely factual premises describing human nature. An example of the fallacy is the putative inference of the value of knowledge from the fact that human beings are naturally curious and desire to know. But here we are being faithful to the methodological insights and strictures of Aquinas. Contrary to what is sometimes supposed, he recognized that what would later come to be called “the naturalistic fallacy” is indeed a fallacy, and was far stricter about avoiding it even than was David Hume, who is sometimes credited with “discovering” it. If, standing on the shoulders of Aristotle and Aquinas, we have been able to contribute something significant to the tradition of natural-law theorizing, it is founded on Professor Grisez’s work showing how what he calls “modes of responsibility” follow as implications of the integral directiveness of the most basic principles of practical reason – principles that direct human action towards basic human goods and away from their privations. The modes of responsibility are intermediate in their generality between the first and most general principle of morality (“always choose in ways that are compatible with a will towards integral human fulfillment”) and fully specified moral norms that govern particular choices. The modes include the Golden Rule of fairness and the Pauline Principle that acts that are in themselves evil (mala in se) may not be done, even for the sake of good consequences. They begin to specify what it means to act (or to fail to act) in ways that are compatible with a will oriented positively (or, at least, not negatively) towards the well-being of all human beings in all the respects in which human beings can flourish – integral human fulfillment. Our account of the modes of responsibility helps to make clear the ways that natural-law theories are both like and unlike utilitarian (and other

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consequentialist) approaches to morality, on the one hand, and Kantian (or “deontological”) approaches on the other. Like utilitarian approaches, and unlike Kantian ones, natural-law theories are fundamentally concerned with human well-being and fulfillment and, indeed, with identifying principles directing our choosing towards basic human goods, and away from their privations, as the starting points of ethical reflection. Unlike utilitarian approaches, however, they understand the basic forms of human good (as they figure in options for morally significant choosing) as incommensurable in ways that render senseless the utilitarian strategy of choosing the option that overall and in the long run promises to conduce to the net best proportion of benefit to harm (however “benefit” and “harm” may be understood and defined). Natural-law theorists share with Kantians the rejection of aggregative accounts of morality that regard the achievement of sufficiently good consequences or the avoidance of sufficiently bad ones as justifying choices that would be excluded by application of moral principles in ordinary circumstances. Unlike Kantians, however, they do not believe that moral norms can be identified and justified apart from a consideration of the integral directiveness of the principles of practical reason directing human choice and action towards what is humanly fulfilling and away from what is contrary to human well-being. Natural-law theorists do not believe in purely “deontological” moral norms. Practical reasoning is reasoning about both the “right” and the “good,” and the two are connected. The content of the human good shapes moral norms inasmuch as such norms are entailments of the basic aspects of human well-being and fulfillment considered integrally. Such a view presupposes, of course, the possibility of free choice – that is, choosing that is the pure product neither of external forces nor internal but sub-rational motivating factors, such as sheer desire. So a complete theory of natural-law will include an account of principles of practical reason, including moral norms, as principles for the rational guidance of free choices, and a defense of free choice as a genuine possibility. This entails the rejection of strict rationalism, according to which all phenomena are viewed as caused. It understands human beings – some human beings, at least sometimes – as capable of causing realities that they bring into existence for reasons by free choices. On the natural-law account of human action, freedom and reason are mutually entailed. If people were not really free to choose among options – free in the sense that nothing but the choosing itself settles what option gets chosen – truly rationally motivated action would not be possible. Conversely, if rationally motivated action were not possible, the experience we have of freely choosing would be illusory.17 Another feature of the natural-law account of human action that is stressed by those of us who are regarded as “new” natural-law theorists is the set of

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distinctions between various modes of voluntariness. We understand morality as fundamentally a matter of rectitude in willing. In sound moral judgments and upright choices and actions, the will of the agent is oriented positively towards the human good integrally conceived. In choosing and acting, one is not, of course, pursuing every human good – that is not possible – but one is pursuing at least one basic human good well, and if one is choosing and acting in a morally upright way one is respecting the others. Yet, is it not obvious that many upright choices – choices of good ends sought by morally good means – have some bad consequences? For example, do we not know with moral certainty that by constructing a system of highways on which drivers of automobiles are authorized to drive at a speed of, say, 65 miles per hour we are permitting a circumstance to exist in which several thousand people each year will be killed in driving accidents? Indeed, we do. But according to the natural-law understanding of human action, there is a real and sometimes morally critical distinction between intending harm to a basic human good (and thus to a person, since human goods are not mere abstractions, but are aspects of the well-being of flesh-and-blood human beings) and accepting foreseen harm as a side-effect of an otherwise morally justified choice. One can intend harm in two different ways: as an end-in-itself or as a means to some other end. One intends harm as an end when, for example, one seeks to injure or kill someone out of hatred, anger, or some similarly powerful emotion. One intends harm as a means when, for example, one seeks to kill a person in order to recover on the victim’s life insurance policy. The key thing to see is that intending death (whether as end or means) is distinct from accepting death as a side-effect (even if the side-effect is clearly foreseen, as we foresee, for example, the deaths of motorists and passengers on the highways in ordinary accidents).18

Natural-law and moral virtue Let me conclude with one more proposition stressed by natural-law theorists, namely the fact (or in any event what we believe to be the fact) that by our choices and actions we not only alter states of affairs in the world external to us, but also at the same time determine and constitute ourselves – for better or worse – as persons with a certain character.19 Recognition of this self-shaping or “intransitive” quality of morally significant choosing leads to a focus on virtues as habits born of upright choosing that orient and dispose us to further upright choosing – especially in the face of temptations to behave immorally. People sometimes ask: Is natural-law about rules or virtues? The answer from the point of view of the “new natural-law” theory

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is that it is about both. A complete theory of natural-law identifies norms for distinguishing right from wrong as well as habits or traits of character whose cultivation disposes people to choose in conformity with the norms and thus compatibly with a what we might call, borrowing a phrase from Kant, a good will, viz., a will towards integral human fulfillment.

Notes 1  See Bernard J. F. Lonergan, Insight: A Study of Human Understanding (1955). 2  Inasmuch as the first and most basic practical principles directing human choosing towards what is intelligibly worthwhile and away from its privations are foundational to the identification of moral knowledge, there is a sense in which knowledge of those principles is incipiently moral knowledge. 3  St. Thomas Aquinas, Summa theologiae, I–II, Q. 94, A. 2. 4  On the first principle of morality and its specifications, see John Finnis, Joseph M. Boyle, Jr. and Germain Grisez, Nuclear Deterrence, Morality and Realism 281–7 (1987), Oxford: Clarendon Press. 5  By the phrase “our humanity,” I refer more precisely to the nature of humans as rational beings. The nature of human beings is a rational nature. So in virtue of our human nature, we human beings possess a profound and inherent dignity. The same would be true, however, of beings other than humans whose nature is a rational nature, if indeed there are such beings. In the case of humans, even individuals who have not yet acquired the immediately exercisable capacities for conceptual thought and other rational acts, and even those who have temporarily or permanently lost them, and, indeed, even those who do not possess them, never possessed them, and (short of a miracle) never will possess them, possess a rational nature. 6  Having said this, I do not want to suggest a sharper difference than can be justified between positive and negative rights. Even in the case of negative rights, it is sometimes relevant to ask how a right should be honored and who, if anyone, has particular responsibility for protecting it. Moreover, it can be the case that there is not a uniquely correct answer to questions about what place the protection of the right should occupy on the list of social priorities. Consider, for example, the right not to be subjected to assault or battery. While it is obvious that individuals have the obligation to respect this right, and equally obvious that governments have an obligation to protect persons within their jurisdiction from those who would violate it, different communities reasonably differ not only as to the means or mix of means that are used to protect persons from assault and battery, but also as to the level of resources they allocate to protect people against violations of the right. I am grateful to Allen Buchanan for this point.

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7  Robert P. George and Christopher Tollefsen, Embryo: A Defense of Human Life (2nd edition), (New York: Witherspoon Institute Press, 2011). 8  Yves Simon, A General Theory of Authorit, South Bend, Indiana: University of Notre Dame Press, 1991. 9  John Finnis, Natural Law and Natural Rights, Oxford: Clarendon Press, 1980, pp. 9–127. 10  David Hume, A Treatise of Human Nature, bk. II, pt. III, § III, at 415 (Clarendon Press, 1888) (1739). 11  Thomas Hobbes, Leviathan 41, Edwin Curley ed., (New York: Hackett Publishing Company 1994) (1651). 12  I offer a detailed critique of Humean skepticism, and a defense of my own view of the relationship of reason to feeling, emotion, and the like, in Robert P. George, In Defense of Natural Law (Oxford: Oxford University Press, 1999), ch. 1. See also, John Finnis, Reason in Action (Oxford: Oxford University Press, 2011), ch. 1 (“Practical Reason’s Foundations”). 13  See, e.g., John Finnis, Religion and Public Reasons (Oxford: Oxford University Press, 2011), esp. ch. 1 (“Darwin, Dewey, Religion, and the Public Domain”). 14  See St. Thomas Aquinas, Summa Theologiae I–II, Q. 91, art. 2, Q. 100, art. 1, at 997. 15  See John Finnis, Moral Absolutes: Tradition, Revision, and Truth 26 and n.50 (1991) Washington, DC: Catholic University of America press. 16  Second Vatican Council, Declaration on Religious Liberty: Dignitatis Humanae § 2–3 (1965), reprinted in Vatican Council II, The Conciliar and Post Conciliar Documents 800–1 (Austin Flannery, O.P. ed., rev. ed. 1988) Northport, NY: Costello Publishing Company. 17 In defense of freedom of choice (or freedom of the will) as described here, see Joseph M. Boyle, Jr., Germain Grisez and Olaf Tollefsen, Free Choice: A Self-Referential Argument (1976). 18  Although the distinction between intending, on the one hand, and accepting bad side effects, on the other, is often pertinent to moral evaluation on a natural-law account, one should not suppose that it is impossible to violate moral norms in accepting side effects. On the contrary, one may behave unjustly, for example, in accepting bad side effects, even where one has not run afoul of the norm against intending, say, the death or injury of an innocent human being. See, e.g., R. George, In Defense of Natural Law (Clarendon Press: 2001), p. 106. 19  See, e.g., Nicomachean Ethics, supra note 4, at 1113b5–13. Aristotle, Nichomachean Ethics, J. L. Ackrill, J. O. Urmson, and David Ross eds, (Oxford: Oxford University Press, 1998).

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The Jewish and Christian Principles of the Founders Michael Novak

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cholars often mistakenly refer to the god of the Founders as a deist god. But the Founders talked about God in terms that are radically Jewish: Creator, Lawgiver, Governor, Judge, and Providence. These were the names they most commonly used for Him, notably in the Declaration. For the most part, these are not names that could have come from the Greeks or Romans, but only from the Jewish Testament. Perhaps the Founders avoided Christian language because they didn’t want to divide one another, since different colonies were founded under different Christian inspirations. In any case, all of them found common language in the language of the Jewish Testament. It is important for citizens today whose main inspiration is the Enlightenment and Reason to grasp the religious elements in the Founding, which have been understated for a hundred years. For these principles are important to many fellow citizens, and they are probably indispensable to the moral health of the republic, as Washington taught us in his Farewell Address. “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” Reason and faith are the two wings by which the American eagle took flight.

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We need these days to stress the second wing, and the Jewish faith especially, because scholars have paid too much attention to Jefferson in these matters and ignored the other one hundred influential Founders. For instance, we have ignored John Witherspoon, the president of Princeton, “the most influential professor in the history of America,” who taught one U.S. president (Madison stayed an extra year at Princeton to study with him), a vice president, three Supreme Court justices including a chief justice, twelve members of the Continental Congress, five delegates to the Constitutional Convention, and fourteen members of the state conventions that ratified the Constitution. During the revolution, many of his pupils were in positions of command in the American forces.1 We’ve also ignored Dr. Benjamin Rush of Pennsylvania, James Wilson of Pennsylvania, and a host of others. So here I want to return to some of those lesser-known stories and quotations from the Founders, to give you a taste of the religious energy behind the Founding. *** Virginia led the way in articulating the grounds of religious liberty, and I would like to draw attention to a couple of Virginia’s founding documents. Article XVI of the Virginia Declaration of Rights of 1776 (George Mason’s draft, with some help from James Madison) defines religion as “the duty which we owe to our Creator.” That definition of religion is used repeatedly in the Founding period, persisting even in Noah Webster’s 1828 dictionary. “Religion,” the Declaration says, “or, the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” Directed by reason and conviction – think how that definition cuts across today’s world, by raising the question: Which particular God is it who cares about what happens in our conscience? Not only what we do externally, but what goes on in our hearts. And not our hearts, exactly, but our minds – for we are moved to recognize these duties “by reason and conviction.” I am not an expert on all the world religions, but this God of the early Americans is not, I think, the god of Hinduism, and not the god of Buddhism (there is some doubt whether in order to be a Buddhist, one even needs to believe in a god). I don’t believe it is the Muslim Allah. I don’t believe there is any other god known to human beings except the Jewish-Christian God who fulfills the requirements of the Virginia definition. And the Virginians go on: “And, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” There it is again: conscience. Then they conclude: “And it is the mutual duty of all to

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practise Christian forbearance, love, and charity, towards each other.” (To your ear, which religion does that conclusion allude to?) What kind of God is this? Most writers take Jefferson and Madison as the lodestones on religious liberty. But among the hundred Founders (signers of the Declaration and of the Constitution, for example) Madison and Jefferson represented only a minority. In about half of the states, religion was already established. George Washington opposed Madison’s Memorial and Remonstrance Against Religious Assessments and refused to sign. The new constitution of Massachusetts (1781) provided for a public obligation to fund private religious schools in every district. Moreover, even Madison and Jefferson – while at the far end of the spectrum at least in favor of religion in the public square – nevertheless grounded religion liberty in the nature of a Jewish-Christian God of Rights. Why? It turns out that there are five characteristics of the God of Rights: 1 God is defined as Spirit and Truth – not a thing, not a snake, nor rain,

nor tree, nor stone, but logos and mind, where mind is understood as insight (light) and judgment. 2 He is a judge of consciences, and not merely of outward action. 3 For Whom conscience is not coerced. 4 For Whom acceptance by women and men must be free – and

judgments are based in evidence for mind, not submission of will. (In Islam, omnipotence requires unbounded will, not limited by laws. Submission, not reason, is essential.) 5 Who allows for personal liberty, variation, dissent, difference – some

people see “light” later than others – only God judges. Clearly, it is not necessary for any American citizen to hold that the Jewish/ Christian God is true. But it is necessary to understand the nature of the God to whom the Founders turned in grounding rights. Let me jump ahead now to Madison’s Memorial and Remonstrance of 1785.2 This document lays out the intellectual path by which Madison came to his notion of rights: Because we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence” [We’ve heard that before, haven’t we, in 1776? So the same linking of

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religion to conscience is once more a presupposition – a Jewish and Christian presupposition.], the Religion, then, of every man must be left to the conviction and conscience of every man, and it is the right of every man to exercise it as these may dictate. Now Madison needs to explain where he gets the term “right.” Here is how his mind proceeded: “This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.” The root of our equality and personal independence is our ability to follow the evidence of our own mind. Madison goes on: “It is unalienable also, because what is here a right towards men, is a duty towards the Creator.” (See how he is arguing? Religion, or the duty that creatures owe to their Creator. His mind goes back to duty: If men have a duty to their Creator, no one has a right to interfere with it. Who would dare interfere with it? Men have a right to do their duty to God. No one may alienate them from that.) He continues: “It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.” We have a duty, and “[t]his duty is precedent both in order of time and in degree of obligation to the claims of Civil Society.” Before there is a civil society, we have this duty. It is precedent even to the family: neither mother, nor father, nor brother, nor sister can take over your responsibility for your own decision. The conclusion to this chain of thought is inevitable. The duty flows from the self-evident relation of creature to Creator. Again, Madison: “Before any man can be considered a member of Civil Society, he must be considered as a subject of the Governour of the Universe.” Religion is a duty to the Creator who is also “Governour of the Universe.” Now if you have the duty, then you must also have the right. There is no sense in your having a duty to the Creator, unless you also have the right to exercise it, according to conscience. And this is how the Founders found their way to rights – by way of the twin concepts of creature and duty. *** Let me tell a few lesser-known stories about the Founders to give a taste of the religious energy behind the Founding. Here is the first: Thomas Jefferson, with a red prayer book under his arm, was walking from the White House to the Capitol building one day to attend the church service that was held there. A man along the way asked him, “Which way are you walking, Mr. Jefferson?” “To church, sir!” he replied.

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“You going to church, Mr. Jefferson? You don’t believe a word in it, sir!” Now Jefferson didn’t deny that. But his response was: “Sir, no nation has ever yet existed or been governed without religion. Nor can be. The Christian religion is the best religion that has been given to man, and I as chief magistrate of this nation am bound to give it the sanction of my example.”3 This vignette is particularly acute for the two points I have been making. First, admittedly, some persons may not need religion. Jefferson did not deny that he “didn’t believe a word in it.” Nonetheless, Jefferson argued that religion – he was thinking particularly of the Christian and Jewish religion, dependent on individual conscience – is peculiarly the religion of freedom and the support of republican government. Therefore, he believed he should bring the support of government, not infringement of liberty by government, not the repression of religion, but the support of government, for nourishing this living root of the free society. Take away the duty of conscience, and the right to liberty of conscience that follows from it, and the concept of a free republic loses its intellectual dynamism. Another story about Jefferson: During his administration (1801–1809), the largest church service in Washington was held every Sunday in the U.S. Capitol building. Jefferson sometimes attended, and he arranged that the Marine Band should provide the music. He did not think that a violation of conscience. If everyone grasps the meaning of Creator and creature, it is self-evident that the creature owes everything to the Creator, and is bound to rejoice in the Creator’s providence.4 Jefferson was in agreement with his other colleagues central in the Founding, who thought that a people cannot maintain liberty without religion. Here is John Adams, 1776: I sometimes tremble to think that although we are engaged in the best cause that ever employed the human heart, yet the prospect of success is doubtful, not for want of power or of wisdom but of virtue. The Founding generation had no munitions factory this side of the ocean, and yet they were facing the most powerful army and the largest navy in the world. Besides, their unity was fragile. The people of Virginia did not like the people of Massachusetts. The people of Massachusetts did not think highly of the people of Georgia. Reflecting on this point, President Witherspoon of Princeton, who had just arrived from Scotland in 1768 and was not at first in favor of it, gave a famous sermon in April 1776, supporting independence two months before July 4. His text was read in all 500 Presbyterian churches in the colonies and widely reproduced. Witherspoon argued that although hostilities had been going on for two years, the king still did not understand

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that he could easily have divided the colonies and ended the hostilities. That the king didn’t do so showed that he was not close enough to know how to govern the Americans. If they were to stick together with people they didn’t particularly like, the Americans needed virtues of tolerance, civic spirit, and a love of the common good. Further, because the new nation couldn’t compete in armed power, the colonists depended on high moral qualities in their leaders and on devotion in the people. In order to win, for instance, Washington had to avoid frontal combat, and to rely on the moral endurance of his countrymen year after year. To this end, Washington issued an order that any soldier who used profane language would be drummed out of the army. He impressed upon his men that they were fighting for a cause that demanded a special moral appeal, and he wanted no citizen to be shocked by the language and behavior of his troops. The men must show day-by-day that they fought under a special moral covenant.5 Now think of our predicament today. How many people in America today can understand the four key words that once formed a great mosaic over the American Republic? Truth (“we hold these truths”), liberty (“conceived in liberty”), law (“liberty under law”), and judge (“appealing to the Supreme Judge of the world for the rectitude of our intentions”). On the face of things, our Founders were committing treason. In the eyes of the world, they were seditious. They appealed to an objective world, and beyond the eyes of an objective world, they appealed to the Supreme Judge for the rectitude of their intentions. That great mosaic, which used to form the beautifully colorful apse over the American Republic, has fallen to dust in this nonjudgmental age. It is disassembled in a thousand pieces. Fewer every year remember how it used to look. *** Now let’s return to James Madison. Just before his twenty-fifth birthday, Madison heard troubling news about an event that occurred not far from where he lived in central Virginia. A group of Baptists had gathered in a declivity on a hillside, which formed a natural stadium, when a posse of Anglicans rode up, pulled the minister from the pulpit, strung him up, and had him lashed. During this period, more than 45 Baptist ministers languished in jail for preaching the gospel without a license from the state. But their argument was: “We don’t need a license from the state. Our license comes from God.” Madison was touched by these stories. He came to the defense of the Baptists, and eagerly added his contribution to the Virginia Declaration of

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Rights of 1776, particularly the part on religious liberty, which Jefferson later called a prominent part of that Declaration. It happened this way. Patrick Henry, the governor of Virginia, had reassigned Madison to a district he didn’t know very well, where over one-third of the 2,200 voters were Baptists. These Baptists came to Madison and said: “We want a Bill of Rights; otherwise no votes from us.” Madison replied: “You don’t need a Bill of Rights. All your rights are already protected in the Constitution. If you start writing them down, people will think that the only rights you have are the ones written down, that the others belong to the state.” They responded, in essence: “We understand that, you understand that, but we don’t trust the Anglicans to understand that. We want it written down.” This is why, when Madison went back to Congress, his main order of business was steadily to guide a Bill of Rights through a reluctant Congress, which was eager to get to practical necessities, like a post office, taxes, roads, and fisheries. Surprisingly, the role of the Baptists of Virginia in bringing about the Bill of Rights is woefully overlooked in American history.6 *** A fourth story. In early September 1774, members of the First Continental Congress were riding dustily toward Philadelphia from every region, where they hoped to remind King George III of the rights due to them as Englishmen. That is all they were claiming, the rights of Englishmen. And they wanted to remind King George that they were wards of the king. They were not founded by the Parliament, they were founded by the king, and they resented the Parliament taxing them. The Parliament had nothing to do with their relationship to the king, they thought. Yet as these delegates were gathering, news arrived that the king’s troops were shelling Charlestown and Boston, and rumors flew that the city was being sacked, robbery and murder being committed. Those rumors turned out not to be true, but that was the news they heard. Thus, as they gathered, the delegates were confronted with impending war. Their first act as a Continental Congress was to request a session of prayer. Mr. Jay of New York and Mr. Rutledge of South Carolina immediately spoke against this motion because (they said) Americans are so divided in religious sentiments – some Episcopalians, some Quakers, some Anabaptists, some Presbyterians, and some Congregationalists – all could not join in the same act of prayer. Samuel Adams rose to say he was no bigot, and could hear a prayer from any gentleman of piety and virtue, as long as he was a patriot. “I’ve heard of a certain Reverend Duché,” he said,

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speaking of the rector of Christ Church down the street from where they were meeting. “People say he’s earned that character.” Adams moved that Duché be asked to read prayers before Congress on the next morning. And the motion carried. Thus it happened that the first act of the Congress on September 7, 1774, was an official prayer, pronounced by an Episcopalian clergyman dressed in his vestments. And what did he read? He read a Jewish prayer, Psalm 35 in The Book of Common Prayer. Now imagine the force of these words, while the king’s troops were moving against the homes of some of the people gathered there. Imagine the delegates from South Carolina and New York thinking that the fleet might be shelling their homes soon. Plead my cause, O Lord, with them that strive with me. Fight against them that fight against me. Take hold of buckler and shield, and rise up for my help. Say to my soul, “I am your salvation.” Let those be ashamed and dishonored who seek my life. Let those be turned back and humiliated who devise evil against me. Before the Reverend Duché knelt Washington, Henry, Randolph, Rutledge, Lee, and Jay, and by their side, heads bowed, the Puritan patriots, who could imagine at that moment their own homes being bombarded and overrun. Over these bowed heads the Reverend Duché uttered what all testified was an eloquent prayer for America, for Congress, for the province of Massachusetts Bay, and especially for the town of Boston. The emotion in the room was palpable, and John Adams wrote to Abigail that night that he had never heard a better prayer or one so well pronounced. “I never saw a greater effect upon an audience. It seemed as if heaven had ordained that that Psalm be read on that morning. It was enough to melt a stone. I saw tears gush into the eyes of the old, grave pacific Quakers of Philadelphia. I must beg you, Abigail, to read that Psalm.” In this fashion, right at its beginning, this nation formed a covenant with God which is repeated in the Declaration: “with a firm reliance on the protection of Divine Providence.” The Founders pledged their fidelity to the will of God, and asked God to protect their liberty. They further made manifest this covenant in many later acts of Congress regarding days of fasting. Within the first six months, for instance, Congress put out a proclamation that every American state set aside a day of prayer and fasting: December 11, 1776: Resolved that it be recommended to all the United States as soon as possible to appoint a day of solemn fasting and

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humiliation to implore the Almighty God to forgiveness of the many sins prevailing among all ranks and to beg the countenance and the assistance of his Providence in the prosecution of the present just and necessary war. And then, within another year, an act of Congress instituted a day of thanksgiving to commemorate the signal successes of that year; and the next year, again. Years later in The Federalist #38, Publius marveled at the improbable unanimity achieved among fragmented delegates, from free states and slave, from small states and large, from rich states and poor. “It is impossible for the man of pious reflection not to perceive in it a finger of the Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Three times The Federalist notes the blessings of Providence upon this country.7 *** A fifth story. On the night before the battle of Long Island, the Americans received intelligence that the British were attacking the next morning, and Washington was trapped with his whole army. Washington saw that there was only one way out – by boat. During the night, the Americans gathered as many boats as they could. There weren’t enough. Morning came, and more than half the army was still on shore. A huge fog rolled in and covered them till noon. They escaped, and when the British closed the trap, there was no one there. The Americans interpreted that fog as an act of Providence.8 In the preaching of the time, Americans learned as follows: Providence does not mean that God works magically. Rather, from all time every detail of the tapestry is known to the one who weaves it. To the Eternal God, there is neither time nor sequence, but every detail of the tapestry is visible to Him as if in one simultaneous moment, each thing acting independently and freely, but cohering as a whole, like characters in a well-wrought novel. Thus, the rival general on the morning of the great battle comes down with dysentery and cannot concentrate. Nothing more common in the affairs of human beings than circumstance and chance, which only those who lived through them in time and sequence found to be surprising.9 The very sermon Witherspoon preached on behalf of independence in April 1776 was a sermon on how Providence acts by contingent and indirect actions – not foreseen, because God does not “foresee” anything. He is present to everything, in the Jewish and Christian understanding. He is not before and after, He is present to all things at one time. And like a great novelist, He sees the details of what

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He does, and how they all hook together, without forcing anybody’s liberty, without manipulating anything. *** A sixth story. When Jefferson wrote the Declaration of Independence he mentioned God twice. Before the Congress would sign it, members insisted on two more references to God. Thus, the four names already mentioned: the Author of nature and nature’s laws; the Creator Who endowed in us our rights; the Judge to whom we appeal in witness that our motives spring not out of seditiousness, but from a dear love of liberty, and a deep sense of our own proper dignity; and Providence, in whom we trust. The fundamental meaning of the Jewish, and later the Christian, Bible is that the axis of the universe is what happens in the interior of the human being. Every story in the Bible is a story of what happens in the arena of the human will. In one chapter King David is faithful to his Lord and in the next, not. And the suspense of every chapter is: What will humans choose next? Liberty is the reason God made the universe. He wanted somewhere one creature capable of recognizing that He had made all things, that the creation is good, and that He had extended His hand in friendship. He wanted at least one creature to be able, not as a slave but as a free woman and man, to reciprocate His proffered friendship. That, in a nutshell, is what Judaism is, and what Christianity is. Christianity, of course, played a historical role in making the God of Judaism known universally. The members of Congress on July 2, 1776, were about to make themselves liable to the charge of treason, and to humiliate their children into the nth generation for being the descendants of traitors. They needed that reference to their Judge in the Declaration. And they wanted that reference to Providence, to declare that God is on the side of liberty, and those who trust in liberty will therefore prevail. Whatever the odds, Providence will see to it that they prevail.10 Let me recall from one of the old American hymns words that reflect exactly this biblical vision. This world didn’t just “happen”; it was created. It was created for a purpose, and that purpose is liberty. Our fathers’ God! To Thee, Author of liberty, To Thee we sing. Long may our land be bright With freedom’s holy light; Protect us by Thy might, Great God our King.11

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A typical sentiment of the American people then, and even now. I have mentioned that though some historians say they were deists, the early Americans who believed that the lifting of the fog on Long Island was an act of God, were not deists. Their God was not a “watchmaker God” who winds the universe up and lets it go. Their God was a God who cares about contingent affairs, loves particular nations, is interested in particular peoples and particular circumstances. Their God was the God of Judaism, the God of Providence. Not a swallow falls in the field but this God knows of it. His action is in the details. *** A seventh story. The third article of the constitution of Massachusetts: Art. III. As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion, and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily. When this article was attacked as an infringement on religious liberty, John Adams replied, in effect, “Not at all, you don’t have to believe it. But if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.” That is not the way we think today, I hastily add, but this is the sort of logic our Founders used. Let us walk through the three crucial steps of this logic, one by one. Right at the beginning of The Federalist, in the second paragraph, the author says this generation of Americans is called upon to decide for all time whether governments can be formed “through reflection and choice” or whether they must “forever be formed through accident and force.” That is what the Americans were called upon to decide: whether a government may be formed through reflection and choice. They then faced the question: How do you institutionalize such a decision? Answer: By calling a Constitutional Convention and then having

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the agreed-upon text ratified in a manner that permits the whole people to participate in the decision. But can there be enough votes for something like that? Can people put aside their regional prejudices? Can they put aside their personal ambitions? Can they think about what is good for the long run? For posterity? That is what The Federalist is trying to elicit – a long-range view, not what people feel at the moment. Remember the ambitions of that moment. Many New Yorkers wanted New York to be a separate nation. (The early maps of New York go all the way out to the Pacific Ocean – it’s not called “the Empire State” for nothing!) If New York becomes a separate state, it will have its own secretary of state, its own commander-in-chief, its own secretary of the treasury; distinguished families in New York will become ambassadors to the Court of St. James and to Paris, and so forth. Such a dream might seem very attractive to some leading families, but would it be good for the country? If New York were to vote to become an independent nation, there could be no union between New England and the South. Reflection and choice were, then, the hinges of liberty. What Americans meant by liberty are those acts which are made from reflection and choice. The acts that we commit ourselves to when we have reflected on the alternatives, when we understand the consequences. That’s freedom. What you do by impulse, by contrast, that is not freedom, but slavery to your impulses. Such slavery is what the animals live under. They’re hungry, they need to eat. That is not freedom, but animal instinct. Freedom is not doing what you want to do; freedom is doing what, after reflection, you know you ought to do. That is what freedom is, and that is why early American thought has been summed up thus: “Confirm thy soul in self-control/Thy liberty in law.” Freedom springs from self-government, after reflection and by calm, deliberate choice. The second step in the argument is this: To have reflection and choice, you need people with enough virtue to have command of their passions. You need people, that is, with the habits that allow them to reflect, to take time to be dispassionate, to see consequences clearly, and then to make a choice based upon commitment. None of us acts that way all the time. But we do aspire to have at least sufficient virtue to live responsibly. For how can a people unable to govern their passions in their private lives possibly be able to practice selfgovernment in their public lives? It doesn’t compute. In short, freedom in a republic is not feasible without virtue in a republic. Next, the third step. George Washington said in his Farewell Address that most people are not going to have virtue or good habits in the long run without religion. And what he meant by that can be recited very simply. As Jews and Christians understand it, religion is not just a cold law; it is a

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relationship with a Person. A Person who knows even your secret thoughts. So religion adds a personal motive to the idea of virtue. In addition to that, this Judge sees you even when you’re alone, even when you’re in secret, even when the doors are closed. This is a Judge who knows whether or not you paint the bottom of the chair. Republics depend on virtue that holds up under such tests. The Founding generation used the example of the well-known doctor in Massachusetts who, having been an adulterer, turned out also to be a British spy. This was a lesson they often referred to. A man who thinks he can get away with things in secret is not reliable for a republic. A republic cannot be made up of people who think they can do in secret what they wouldn’t do in public. Jefferson wrote a very touching letter to this effect. This is why the Founders thought that whatever might be said of persons of “peculiar character,” as Washington said (some scholars think he was referring to Jefferson), we must not believe that virtue can be maintained in the long run without religion. Our sons are going to forget about the revolution, the Founders expected; they are going to forget the suffering we went through. They are going to forget the frozen feet at Valley Forge, and the gangrene and the hunger, the lack of pay and the despair. They are going to forget all that, and their grandchildren are going to be tired of hearing it. There is moral entropy in human affairs, such that even if one generation succeeds in reaching a very high moral level, it is almost impossible for the next generation and the one after that to maintain it. A republic, therefore, has to fight moral entropy. That is why there will have to be a series of moral Awakenings. The Founders didn’t see how that would happen without religious inspiration, beyond a merely utilitarian impulse. So there are three principles, to repeat, in this fundamental logic: No republic without liberty; no liberty without virtue; no virtue without religion. Now doesn’t that sound old-fashioned? In these days, doesn’t it sound hardly tenable? Yet our Founders were right. Is not our present circumstance dangerous to the republic? *** As we have seen, the very idea of conscience springs from the Jewish and Christian idea of the natures and the relationship between the Creator and his creatures. For the Jewish-Christian foundational narrative rests upon a God: MM

Who chooses to allow the human mind to be free except in the light of commanding evidence.

MM

Who is Spirit and Truth – not a thing, but logos and mind, where mind is understood as insight (light) and judgment.

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MM

Who is the Judge of consciences, and not merely of outward actions. Conscience cannot not coerced. Acceptance by women and men must be free – and judgments are based in evidence for mind, not submission of will. ***

Let me end with another story. I first heard this story alluded to in Ronald Reagan’s Inaugural Address. Dr. Joseph Warren, the family doctor of Abigail and John Adams in Boston, was among the first to join the Sons of Liberty, and to stand with the men at Lexington. In fact, he was one of the officers, and he took a bullet through his hair right above his ear, where it left a crease, but he stood his ground. Two months later, Dr. Warren was commissioned as a major general of the Continental Army. It was a great title, but there was not much of an army for the defense of Boston, toward which the British fleet was bringing reinforcements. Dr. Warren learned just four days after he was commissioned that that night the Americans had sent 1,500 men up Bunker Hill. It was one of those still nights when hardly a sound traveled out over the water, where the British fleet was anchored. In the stillness, the troops dug, muffling their shovels, and constructed wooden fortifications, being careful not to strike anything with an axe. In the morning, the British on board ship awakened to find that Bunker Hill was fortified, and began a five-hour bombardment. Warren heard the bombardment as he was on horseback riding toward Boston, and arrived at Bunker Hill by a back route, and managed to climb up into the ranks. He didn’t try to take command, he just went into the ranks, among the front rows. After the bombardment, some of the British soldiers came on land and put Charlestown to the torch, and tongues of flame from 500 homes, businesses, and churches leapt into the sky. Everything in Charlestown burned. Breathless, Abigail Adams watched from a hilltop to the south. She heard the cannons from the warships bombarding Bunker Hill for five long hours as Joseph Warren rode to his position. The American irregulars proved their discipline that day and the accuracy of huntsmen firing in concentrated bursts. They had only four or five rounds apiece. Twice they broke the forward march of 3,500 British troops with fire so withering they blew away as many as 70 to 90 percent of the foremost companies of Redcoats, who suffered that day more than a thousand dead. Then the ammunition of the Americans ran out. While the bulk of the Continental Army retreated, the last units stayed in their trenches to hold off the British hand-to-hand. That is where Major General Joseph Warren was last

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seen fighting until a close-range bullet felled him. The British officers had him decapitated, and bore his head aloft to General Gage. Freedom is always the most precarious regime. Even a single generation can throw it all away. Every generation must reflect and must choose. Joseph Warren had earlier told the men of Massachusetts at Lexington: Our country is in danger now, but not to be despaired of. On you depend the fortunes of America. You are to decide the important questions upon which rest the happiness and the liberty of millions not yet born. Act worthy of yourselves.12

Notes 1  Jeffrey Hays Morrison, “John Witherspoon and ‘The Public Interest of Religion,’ ” Journal of Church and State, vol. 4 (Summer 1999), p. 553 2  James Madison, “Memorial and Remonstrance Against Religious Assessments” (June 20, 1785), found in Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987), vol. 5, p. 82. 3  From Rev. Ethan Allen’s handwritten history “Washington Parish, Washington City” in the Library of Congress MMC Collection, 1167, MSS, as quoted in James H. Hutson, Religion and the Founding of the American Republic (Washington, D.C.: Library of Congress, 1998), p. 96. According to the most sustained study of Jefferson’s religious convictions, it is probably more accurate to say that Jefferson was a Unitarian rather than a Christian. He disbelieved in miracles and other evidences of the workings of grace beyond the natural order. But he did believe that Protestant Christianity – as distinct from “monkish superstition” – is crucial to the American Republic, and for this reason he kept his own heterodoxies private and gave biblical Christianity public support. 4  Jefferson also allowed the War Office and the Treasury buildings to be used for church services. See Hutson, 1998, op. cit., pp. 84–97; see also James H. Hutson, “Forum – Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,” in The William and Mary Quarterly, vol. 56, no. 4 (1999), pp. 775–90; and Daniel L. Driesbach, “Thomas Jefferson and the Danbury Baptists Revisited,” in The William and Mary Quarterly, vol. 56, no. 4 (1999) pp. 805–16. 5  Ellis Sandoz, Political Sermons of the American Founding Era, 1730 to 1805 (Liberty Press, 1991; 2nd ed., 2 vols., 1998), pp. 533–58 6  Marvin K. Singleton, “Colonial Virginia As First Amendment Matrix: Henry, Madison, and Assessment Establishment,” in James Madison on Religious Liberty, ed. Robert S. Alley (Buffalo, NY: Prometheus Books, 1985), p. 161. See also John T. Noonan, Jr., who reproduces James Madison’s notes from

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the Virginia debates in The Lustre of Our Country (Los Angeles, CA: The Regents of the University of California, 1998), pp. 61–5. 7  John Adams to Abigail Adams, quoted in William J. Federer, ed., America’s God and Country (Coppell, TX: FAME Publishing, 1994), p. 137. 8  David Ramsay, The History of the American Revolution (Indianapolis: Liberty Classics, 1990; originally published in 1789), pp. 283–4. 9  George Washington to Samuel Langdon, September 28, 1789: “The man must be bad indeed who can look upon the events of the American Revolution without feeling the warmest gratitude towards the great Author of the Universe whose divine interposition was frequently manifested in our behalf”: William J. Bennett, Our Sacred Honor (New York: Simon and Schuster, 1997), p. 400. 10  Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997), pp. 148–9. Incidentally, prior to Jefferson’s draft, more than 320 localities had published their own declarations of independence. Most echoed similar themes (pp. 48–9). 11  The verse is the final stanza of “America,” about which Professor West observes:



Sidney’s (and Locke’s) overall argument gave to political obligation a new basis consistent with Christianity’s universal claim but independent of any particular religious sect. The God of all mankind could now be the God of a particular political community. For if natural liberty and natural law come from God, only one kind of community will satisfy God’s law: a consent-based republic protecting the equal liberty of all. The final stanza of “America” shows that this argument is no mere logical inference but a tenet of faith for the political community that established a representative democracy dedicated to the proposition that all men were created equal [emphasis added] For context, see Thomas G. West, ed., “Introduction,” in Algernon Sidney, Discourses Concerning Government (Indianapolis: Liberty Fund, 1996), p. xxii.

12  Quoted in Ronald Reagan’s “First Inaugural Address,” January 20, 1981, Speaking My Mind: Selected Speeches (New York: Simon & Schuster, 1989), p. 64. Regarding Joseph Warren’s role at Bunker Hill, I have learned much from Catherine Drinker Bowen, John Adams and the American Revolution (Boston: Little, Brown, 1950); David Ramsay, The History of the American Revolution (1789), Lester H. Cohen, ed, (Indianapolis: Liberty Classics, 1990); and Benson Bobrick, Angel in the Whirlwind (New York: Simon & Schuster, 1997).

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3

The Classical Roots of the American Founding Carl J. Richard

T

he Greek and Roman classics exerted a formative influence on the founders of the United States. The classics furnished the founders with a rich set of symbols, models, antimodels, and ideas. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The classics furnished the theories of popular sovereignty, mixed government theory, and natural-law that laid the foundations of the U.S. Constitution and Bill of Rights. The classics contributed a great deal to the founders’ conception of human nature, to their understanding of the nature and purpose of virtue, and to their appreciation of society’s essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. In short, the classics supplied a large portion of the founders’ intellectual tools. The principal means by which the classical heritage was transmitted from one generation to the next was the educational system. The founders’ classical training frequently began around age 8, whether under the direction of public grammar school masters or private tutors. Colonial American curricula emphasized Latin, particularly Cicero, Virgil, and Horace, though time was also set aside for the Greek New Testament, Homer, Aristotle, and

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Euclid. In fact, the “grammar” in “grammar school” referred to Greek and Latin grammar, not English grammar; the mother tongue was not taught in American schools until after the Revolutionary War, since most eighteenthcentury Americans believed that precious school time should be reserved for serious academic subjects like the classical languages, not wasted on knowledge the child could learn at home.1 The better teachers, such as James Madison’s instructor Donald Robertson, went beyond the short list of classical authors. Robertson instructed his students in the works of Herodotus, Thucydides, Plato, Julius Caesar, Tacitus, and many others. Madison’s early training was so thorough that, although he arrived at the College of New Jersey (Princeton) in 1769 only two weeks before final examinations, he passed them all. Madison later testified regarding Robertson, “All that I have been in life I owe to that man.”2 The college curricula were as standardized and classically based as the grammar-school curricula, requiring three or four years of further training in the classical languages. College students frequently joined secret societies that assigned them pseudonyms taken from ancient history. While they were students, and frequently afterward, the founders kept commonplace books, notebooks in which they copied the literary passages that most interested them; these were often excerpts from the Greek and Latin classics. Commencement exercises generally featured exhibitions in which students competed for prizes by reading Greek and Latin or by speaking Latin extemporaneously.3 The founders were so thoroughly conditioned to associate the works of certain ancient republicans with personal and societal virtue they were left unable to imagine the teaching of virtue independent of instruction in the classics. Hence the transmission of the classical heritage became one of their most urgent concerns. John Adams heckled his son, John Quincy, ceaselessly not to fall behind in his classical studies. Thomas Jefferson and Aaron Burr even saw to it that their daughters became familiar with the classics, an unusual acquisition for women of that day.4 The founders used classical symbols and allusions to communicate, to impress, and to persuade. With a single classical pseudonym or classical allusion, a gentleman could be certain of generating a chain of associations in the minds of his audience. To appropriate such emblems was to claim social status for oneself and the support of venerable authorities for one’s cause. Classical symbols provided badges of class, taste, wisdom, and virtue. To use them aptly was to claim the endorsement of ancient sages, the very longevity of whose reputations attested to their greatness. Hence the founders frequently enveloped themselves and their causes in classical symbols, much as some modern politicians wrap themselves and their policies in the flag.

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The most common classical symbol was the pseudonym, and Alexander Hamilton was one of its most adept users. For instance, Hamilton used “Phocion” as his pseudonym for an open letter to the citizens of New York opposing a state law that would confiscate more Tory property. Hamilton was suggesting that his fellow New Yorkers emulate the fourth-century B.C. Athenian general Phocion’s legendary magnanimity toward his opponents.5 Meanwhile, Thomas Jefferson led the neoclassical movement in American architecture, helping to design the Virginia State Capitol, the U.S. Capitol, the University of Virginia campus, and his own home at Monticello. His designs were based on such Roman structures as the Pantheon, the Maison Carrée at Nimes, and various Roman villas.6 Ancient history also provided the founders with important models of personal behavior, social practice, and government form. One of the founders’ greatest heroes was Cincinnatus, the fifth-century B.C. Roman who, having been granted dictatorial powers for a six-month period and having defeated, in just fifteen days, the enemies who threatened the city, immediately resigned his dictatorship and retired to the plow. George Washington not only took notice of the fact that people compared him to Cincinnatus but also worked consciously to promote the analogy. Washington recognized that his appeal lay not in military victories, of which he had precious few, but in the republican virtue revealed in his surrender of power. Hence, Washington never offered to resign as commander of the Continental Army, even after the worst defeats, because he did not wish to spoil, by anticipation, the offer of resignation that he planned once he had, like Cincinnatus, defeated the enemy. Soon after that day arrived in 1783, Washington withdrew completely from public life, even going to the extreme of resigning from his local vestry. In his letters of 1784 Washington referred to Mount Vernon as his “villa,” a Latin term he had never before employed in allusion to his estate. Sounding like the Roman poet Horace, he referred to himself as “a private citizen of America, on the banks of the Patowmac … under my Vine and my own Fig-tree, free from the bustle of a camp and the intrigues of a court.” Proud of his position as the first president of the Society of the Cincinnati, an association of Revolutionary War veterans, Washington demanded reforms when popular fears of the organization threatened to destroy the image associated with its name.7 The founders also admired Cato the Younger and Cicero, who died defending the Roman republic. A great fan of Joseph Addison’s Cato, an enormously popular play based closely on Plutarch’s lives of Cato and Caesar, George Washington often drew upon the play. In 1775 he prevented the resignation of General John Thomas, who was angered by an unjust demotion, by paraphrasing Cato’s line: “Surely every post ought to be deemed honorable

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in which a man can serve his country.” Despite congressional resolutions in 1774 and 1778 prohibiting all public officials from attending plays, Washington ordered Cato performed at Valley Forge. He hoped to improve the soldiers’ morale by inspiring them with the example of Cato’s men, who had demonstrated extreme selflessness in the struggle for liberty. During these difficult times, Washington often repeated another line from Cato: “ ’Tis not in mortals to command success.” Perhaps it was Cato’s willingness to sacrifice his property on behalf of the republic that led Washington to reproach his overseer for placating British troops with grain. Washington declared that the overseer should allow Mount Vernon to be leveled before giving any aid to the enemy.8 In 1783 Washington turned to Cato when his officers, furious over Congress’ perpetual inability to pay them, mutinied at Newburgh, New York. The rebels planned to threaten the states with a coup unless they yielded more power to Congress. Although Washington considered the strengthening of the weak Congress vital to national survival, he perceived even the threat of a military coup as dangerous and dishonorable. In his speech to the officers he employed the same three tactics Cato used to face down his mutineers in Act III, Scene 5 of Addison’s play. First, Washington rebuked the anonymous author of a circular letter that urged mutiny, just as Cato had lambasted his rebels. Second, like Cato, Washington pleaded with his officers not to tarnish the republican honor they had won by turning against the republic. Third, like Cato, Washington appealed to the sympathy and respect his past service had earned him. Washington even paraphrased lines from Cato in his own speech.9 Other founders utilized Addison’s Cato. The two most famous lines of the American Revolution, Patrick Henry’s “Give me liberty or give me death” and Nathan Hale’s “I regret that I have but one life to give for my country” were paraphrases of lines from the play.10 While Washington derived a sense of identity and purpose from his emulation of Cato, John Adams derived the same benefits from his lifelong identification with Cicero. As early as 1758 Adams gloried in the fact that law, his chosen profession, was “a Field in which Demosthenes, Cicero, and others of immortal Fame have exulted before me!” In 1774 Adams urged an aspiring politician to adopt Cicero as his model. He wrote regarding Cicero’s proconsulship of Lilybaeum in Sicily: “He did not receive this office as Persons do now a days, as a Gift, or a Farm, but as a public Trust, and considered it as a Theatre, in which the Eyes of the World were upon him.” Adams added that when Rome was short of grain, Cicero managed to feed the city without treating his own province unfairly.11 When Adams, one of the greatest orators of his day, rose before the Continental Congress on July 1, 1776, to rebut John Dickinson’s contention

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that American independence would be premature, the New Englander thought of Cicero. He recorded in his diary, “I began by saying that this was the first time of my Life that I had ever wished for the Talents and Eloquence of the ancient Orators of Greece and Rome, for I was very sure that none of them had ever had before him a question of more importance to his Country and to the World.”12 Adams’s admiration for Cicero outlived the American Revolution. He spent the summer of 1796, several months before assuming the presidency, rereading the Roman statesman’s essays. In 1803 Adams quoted Cicero regarding the true public servant: “Such a man will devote himself entirely to the republic, nor will he covet power or riches. … He will adhere closely to justice and equity, that, provided he can preserve these virtues, although he may give offence and create enemies by them, he will set death itself at defiance, rather than abandon his principles.”13 No one followed this ethic better than Adams. In the 1760s he refused the lucrative and prestigious position of admiralty court judge because he considered the juryless courts unconstitutional. In 1770 he sacrificed his popularity to defend the British soldiers accused of murder in the “Boston Massacre.” As president, in 1799–1800 he made peace with Napoleonic France, leaving Thomas Jefferson the glory of the Louisiana Purchase three years later, at the expense of his own reelection. While no other founder yearned so much for popularity, none so continually sacrificed it to a strict code of ethics. It is not fanciful to suppose that, when making such painful decisions, Adams found consolation in contemplating the Roman statesman’s sacrifices and the eternal glory they had earned him.14 The founders also encountered societal models among the ancients. When Samuel Adams prayed that Boston would become a “Christian Sparta,” he referred to Spartan frugality, selflessness, valor, and patriotism. James Wilson applauded the openness of Athens and republican Rome, as well as the frugality and temperance of the latter city.15 The founders also turned to the ancients, most notably the Greek republics of the fifth and fourth centuries B.C. and the Roman republic from the sixth to the first century B.C., for models of government. In the Revolutionary period the founders frequently applauded the Greek republic’s lenient treatment of their colonies. In 1775 John Adams noted, “The Greeks planted colonies, and neither demanded nor pretended any authority over them, but they became distinct, independent commonwealths.” Adams suggested that the British should follow such a policy with regard to their own American colonies. The Roman republic was even more popular as a model. In his famous 1772 speech commemorating the Boston Massacre, Joseph Warren declared concerning the Roman love of liberty, “It was this noble attachment to a free

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constitution which raised ancient Rome from the smallest beginnings to the bright summit of happiness and glory to which she arrived.”16 Classical models gave the founders a sense of identity and purpose. In 1813 Jefferson wrote to Adams: “The same political parties which now agitate the U.S. have existed thro’ all time. Whether the power of the people or that of ‘the aristoi’ should prevail were questions which kept the states of Greece and Rome in eternal convulsions, as they now schismatize every people whose minds and mouths are not shut up by the gag of a despot.” This perception of ancient history gave Jefferson the satisfaction of believing that his own democratic exertions were part of a grand universal scheme. To the founders, the study of the past was not a mere antiquarian hobby. The past was alive with personal and societal meaning. Their perception of that living past shaped their own identities.17 The conflicts of the Revolutionary and Constitutional periods increased the founders’ sense of kinship with the ancients. Proud of America’s firm resistance to the Intolerable Acts, Samuel Adams declared in 1774: “I think our Countrymen discover the Spirit of Rome or Sparta.” In a 1776 letter to George Wythe, John Adams exulted, “You and I, my dear Friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to have lived.” In the same year, shortly after the signing of the Declaration of Independence, Charles Lee told Patrick Henry, “I us’d to regret not being thrown into the world in the glamorous third or fourth century [B.C.] of the Romans; but now I am thoroughly reconcil’d to my lot.” Edmund Pendleton cherished the memory of the Virginia Constitutional Convention of 1776, recalling, “The young boasted that they were treading upon the Republican ground of Greece and Rome.” In 1777 George Washington replied to British general John Burgoyne’s peace offers: “The associated armies in America act from the noblest motives, liberty. The same principles actuated the arms of Rome in the days of her glory; and the same object was the reward of Roman valour.” George Tucker later recalled the excitement of these days, writing regarding Henry’s “Liberty or Death” speech: “Imagine to yourself this speech, delivered with the calm dignity of Cato of Utica; imagine to yourself the Roman Senate assembled in the Capital when it was entered by the profane Gauls. Imagine that you had heard Cato addressing such a Senate!” Never mind that to achieve the image he wished to convey Tucker had to join a Roman hero from one epoch with a Senate from another era. The image was real to Tucker. As late as 1805 John Adams declared concerning Conyers Middleton’s Life of Cicero: “I seem to read the history of all ages and nations in every page, and especially the history of our country for forty years past. Change the names and every anecdote will be applicable to us.”18

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Imagine the founders’ excitement at the opportunity to match their ancient heroes’ struggles against tyranny and their sage construction of durable republics – to rival the noble deeds that had filled their youth. The founders were thrilled by the belief that they were beginning anew the work of the ancient republicans, only this time with an unprecedented chance of success. Cato and Cicero had lost the first round of combat against the tyranny of Caesar and Augustus, but the founders, starting afresh in a virgin country with limitless resources, could pack the punch that would win the second and decisive round. The founders’ classical “antimodels,” those ancient individuals, societies, and government forms whose vices they wished to avoid, were as significant as their models. The founders’ immersion in the classics gave them a suspicious cast of mind. Steeped in a literature whose perpetual theme was the steady encroachment of tyranny on liberty, the founders became virtually obsessed with spotting its approach, so that they might avoid the fate of their classical heroes. This fear accounts for the founders’ fierce reaction against the modest taxes Parliament sought to impose on the American colonies in the 1760s. The horror and disgust that ancient historians’ accounts of Roman imperial corruption had instilled in the founders’ minds in their youth accounts for much of their exaggeration of the brutality of the well-intentioned but inept George III. It has been said of the American Revolution that never was there a revolution with so little cause. Whatever his faults, George III was hardly Caligula or Nero, as the revolutionaries claimed; however illegitimate, the moderate British taxes were hardly equivalent to the mass executions by the Roman emperors, as they suggested. But since the founders believed that the central lesson of ancient history was that every illegitimate power, however small, ended in slavery, they were determined to resist every such power. Even legitimate authority should be used sparingly, lest it grow into illegitimate powers. Young Thomas Jefferson copied into his commonplace book the warning of Tacitus: “The more corrupt the commonwealth the more numerous its laws.” John Adams declared regarding the “spirit of liberty”: “Obsta principiis [resist the beginnings (of tyranny)] is her motto and maxim, knowing her enemies are secret and cunning, making the earliest advances slowly, silently, and softly.” He then cited Tacitus on the insidiousness of despotism. John Dickinson argued that the smaller the illegitimate tax the greater the danger, since the more easily it would be accepted by the incautious, thereby establishing a precedent for greater encroachments. Dickinson concluded: “Nations, in general, are not apt to think until they feel. … Therefore, nations in general have lost their liberty.”19

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The reverse side of the founders’ reverence for Cato and Cicero was their distaste for Caesar, whose corruption of the Roman republic had resulted in the rise of the emperors. In a famous part of Patrick Henry’s Stamp Act Speech of 1765, Henry even compared George III to Caesar, declaring, “Caesar had his Brutus, Charles the First his Cromwell, and George III [cries of ‘Treason!’] may profit by their example.” Christopher Gadsden and Josiah Quincy summed up patriot sentiment when both claimed that Great Britain was to America “what Caesar was to Rome,” a corrupting influence. Both John Adams and Thomas Jefferson compared Alexander Hamilton to Caesar. Adams wrote, “When Burr shot Hamilton, it was not Brutus killing Caesar in the Senate-House, but it was killing him before he passed the Rubicon.”20 In 1811 Jefferson told the story that at a party Jefferson had hosted while secretary of state in 1791, Hamilton had inquired into the identity of the three men portrayed in Jefferson’s wall paintings. When Jefferson replied that they were “the three greatest men the world had ever produced,” Isaac Newton, Francis Bacon, and John Locke, there had been a pause. Hamilton had then declared that “the greatest man that ever lived was Julius Caesar.” Jefferson considered the story highly significant: while Jefferson, a true republican, modeled himself after men of learning, Hamilton, a secret monarchist, modeled himself after a military figure who had done more than anyone else to corrupt and overturn the illustrious Roman republic. The evidence indicates, however, that either Jefferson misunderstood Hamilton, or Hamilton was playing a joke on the humorless Virginian. All of Hamilton’s references to Caesar in his private correspondence were negative, with the sole exception of a neutral reference to the Roman’s military skill.21 Indeed, although Hamilton was well aware that detractors compared him to Caesar, he considered his opponents more deserving of the infamous name. In 1792 Hamilton called the Democratic-Republicans the “Caesars of the community (a description of men to be found in every republic) who, leading the dance to the tune of liberty without law, endeavor to intoxicate the people with delicious, but poisonous draughts, to render them the easier victims of their rapacious ambition.” Hamilton left no doubt regarding the particular Democratic-Republicans to whom he referred. In the same essay he concluded regarding Jefferson, “But there is always a first time, when characters studious of artful disguises are unveiled; when the vizor of stoicism is plucked from the brow of the Epicurean; when the plain garb of Quaker simplicity is stripped from the concealed voluptuary; when Caesar coyly refusing the proffered diadem is seen to be Caesar rejecting the trappings, but tenaciously grasping the substance, of imperial domination.” Three days earlier Hamilton had declared, “In a word, if we have an embryoCaesar in the United States, ’tis [Aaron] Burr.”22

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The ancients also provided the founders with societal antimodels. For instance, some founders perceived Greek and Roman slavery as an antimodel. As early as 1765 George Mason wrote regarding the Roman republic, “One of the first signs of the decay and perhaps the primary cause of the destruction of the most flourishing government that ever existed was the introduction of great numbers of slaves, an evil very pathetically described by Roman historians.” On August 22, 1787, during the important debate over the importation of slaves at the Constitutional Convention, Charles Pinckney responded to George Mason’s charge that slavery was an immoral and dangerous institution. James Madison recorded Pinckney’s rebuttal: “If slavery be wrong, it is justified by the example of all the world. He cited the case of Greece, Rome, & other antient States.” But John Dickinson retorted, “Greece and Rome were made unhappy by their slaves.”23 The ancients also provided the founders with governmental antimodels. The most important antimodel was the Roman Empire. During the Revolution, the patriots often compared Britain to the Roman Empire, and the Antifederalists later expressed fear that the U.S. Constitution, by creating a powerful presidency and allowing a standing army, would pave the way for the rise of emperors.24 But the founders uncovered imperfections even in their favorite ancient republics. Although the classical republics could serve as rough models, they obviously suffered from fatal flaws, else they would not have been replaced by tyrannies. Thus, the founders’ scrutiny of the ancient republics frequently resembled autopsies, the purpose of which was to save the life of the American body politic by uncovering the cancerous growths that had caused the demise of its ideological ancestors. Thus, although the Federalists saw the ancient Greek confederacies as significant models of federalism, they frequently contended that these confederacies had fallen from decentralization. Thus, a new constitution that granted greater power to the federal government was needed to replace the Articles of Confederation, the nation’s first constitution.25 Unfortunately, the same visceral fear of conspiracies that instilled in the founders a passionate love of liberty and a proper recognition of its fragility also fueled the tendency to see a conspiracy behind every well-intentioned blunder, a conspirator in every opponent. So great was the founders’ fear of conspiracy, a fear derived largely from their lifelong immersion in classical political horror stories, that both the Federalists and the DemocraticRepublicans could equate one another – their recent partners in the struggle against British tyranny – with Caesar and could accuse one another of conspiring against the republic. There was a dark side to the sense of identity and purpose that the classical authors bequeathed to the founders. It required

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fresh threats of tyranny for sustenance. Where such threats did not exist, they must be created. Yet, in retrospect, the paranoia of the early republican period was a small price to pay for the success of the Revolution. The classics gave the founders the courage to face the great challenges of their time. During the Revolutionary era, the classics provided an indispensable illusion of precedent for actions that were essentially unprecedented. In an age in which rebellion was considered an act of the darkest villainy, and rebels were summarily hanged, ancient history enabled the conservative American revolutionaries to argue that they were preserving past liberties rather than presumptuously tinkering with the natural order. It enabled them to portray the king as the real rebel, the violator of that natural-law which lawful patriots would die to defend. Without this illusion of precedent, it is unlikely that the founders could have persuaded themselves and many other Americans to rebel against the mother country. The American Revolution was a paradox: a revolution fueled by tradition. The classics also provided the founders with three of the four most important theories enacted in the U.S. Constitution (the fourth being the modern theory of the separation of powers), the theories of popular sovereignty, mixed government, and natural-law. The Stoics placed a particular emphasis on the idea that all political authority derived from the people. So universally accepted was the belief in popular sovereignty in the classical world that even the edicts of Roman emperors were considered law not merely because they represented the will of the emperor, but because the people had supposedly consented to that mode of legislation. The Roman jurist Ulpian declared, “The will of the prince has the force of law because the people conferred on him all its power.” In 1775 John Adams was able to write regarding the popular sovereignty theory that underlay American resistance to British measures: “These are what are called revolution-principles. They are the principles of Aristotle and Plato, of Livy and Cicero, of Sidney, Harrington, and Lock[e]. – The principles of nature and eternal reason.”26 In ensuring popular consent for the form of government, the founders built on the work of the Puritans. Before the Puritans, consent had never implied participation. Popular consent was demonstrated by the mere absence of rebellion. But the Puritans decided that popular consent for the form of government could be established beyond doubt only through the drafting of written compacts, signed by every adult male. The first written constitution was the Fundamental Orders of Connecticut (1639). The written constitution is perhaps America’s greatest contribution to political science. This distinctively American process for establishing consent underwent numerous revisions in the last quarter of the eighteenth century, a period

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in which Americans drafted and ratified twenty-five state and two federal constitutions. Americans eventually determined that consent must be established through drafting conventions, popular ratification of the constitution (or ratification conventions), and amendment procedures (or reconvention provisions). The drafting convention was a special convention whose delegates were elected for the sole purpose of drafting a constitution. Hence it was a better means of establishing popular consent than having legislatures, interested parties whose members had been elected for other reasons, draft constitutions. Direct popular ratification (or ratification conventions) ensured that the constitution was approved by a majority of the citizens. Amendment procedures (or reconvention provisions) created a mechanism for peaceful change of the government form. In 1780 Massachusetts became the first state to provide for all three of these means of establishing consent for a constitution.27 The founders derived mixed-government theory from the writings of Plato, Aristotle, Polybius, and Cicero. Plato (Laws, 756e–757a, 832c; Politicus, 291d–e, 303c) was the first to suggest that the best system of government balanced the power of the one, the few, and the many. (The theory represented a marked departure from the oligarchy of “guardians,” led by a philosopher-king, that Plato had advocated in the Republic more than a decade earlier.) Aristotle then immortalized mixed-government theory, making it the centerpiece of his Politics (3.7), in which he cited numerous examples of mixed government in the ancient world. In the second century B.C. the Greek historian Polybius (Histories, 6.5–18) presented the Roman republic as the most outstanding example of mixed government. He claimed that the Roman constitution, with its alleged balance between the consuls, the Senate, and the Tribal Assembly, was the secret of Roman success. Such was the beguiling clarity and simplicity of Polybius’ analysis that he even convinced the Romans themselves that their complex system of balances was the chief cause of their success. Cicero (Republic, 2.23–30) seized upon Polybius’ theory to thwart the increasing efforts of ambitious Romans to consolidate their own power at the republic’s expense. Modern republicans then added Great Britain, with its balance between the king, the House of Lords, and the House of Commons, to the pantheon of mixed-government systems. During the 1760s the American revolutionaries blamed Parliament’s unconstitutional taxes on a degeneration of the mixture of the English constitution, noting that the king had used his patronage powers to buy the House of Commons and to pack the House of Lords. The framers of the state constitutions adopted mixed governments, though substituting an elected governor for the king and an assembly of wealth for the House of Lords.28

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The founders also established a mixed government at the federal level in the U.S. Constitution. James Madison (often called “the Father of the Constitution”) argued for a nine-year term for U.S. senators, declaring that their chief function was “to protect the minority of the opulent against the majority.” In Madison’s notes for Federalist No. 63, in which he again championed an aristocratic Senate, Madison cited Aristotle, Polybius, and Cicero, all supporters of mixed government and opponents of democracy. Alexander Hamilton, John Adams, John Dickinson, and numerous other founders endorsed the Constitution as having established a mixed government. Power was balanced between the president, the Senate, and the House of Representatives – a fairly powerful monarch selected by the Electoral College, an assembly of wealth selected by the state legislatures for long terms, and a democratic body elected by the people every two years.29 Within a few years of the ratification of the Constitution, DemocraticRepublicans like Jefferson and Madison shifted their support from mixed government to a more democratic system. The democratic reforms they promoted successfully included the tying of the selection of the Electoral College to a popular vote and the elimination of property qualifications for voting. Even then, they turned to the classics for support – in particular, to the classical pastoral tradition, a heritage as ancient and revered as mixedgovernment theory. The Democratic-Republicans comforted themselves with the notion that the United States could safely adopt a more democratic system, however much a simple democracy might be vilified by classical political theorists, because the abundance of land in the United States would allow a citizenry of Virgilian farmers. They turned not only to the Augustan poets, who had considered the rural, agricultural lifestyle a source of republican virtue, but also to ancient historians, who had attributed the triumph of Sparta and Rome over their vice-ridden, commercial adversaries, Athens and Carthage, as much to their pastoral virtues as to their government forms. Both produced virtue, the agricultural life by fostering frugality, temperance, and independence, the balanced constitution by encouraging moderation, cooperation, and compromise. The plow was both the symbol and the cause of Cincinnatus’ “Roman virtue.”30 Thomas Jefferson so cherished the pastoral tradition that he read Roman agricultural treatises for entertainment, designed his estate to resemble the Roman villas Pliny and Varro described, and planned to inscribe a large passage from Horace’s second epode regarding the joys of the rural life near a small temple that he hoped to build on his burial ground. In fact, Jefferson was so determined to perpetuate the agricultural character of the United States that he was willing to violate strict construction of the Constitution, one of

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the core principles of the Democratic-Republican Party, in order to purchase Louisiana. When the absence of a constitutional provision allowing Jefferson to buy foreign territory threatened the future of the republic’s agricultural base, and hence its virtue and longevity, Jefferson reluctantly sacrificed his constitutional scruples in order to extend the life of the republic.31 The founders also derived from the Stoics the concept of natural-law, a universal code of ethics comprehensible to humans through a combination of intuition and reason acting on experience. This theory had been transformed by modern republicans into the doctrine of natural rights, which became the basis for the United States’ federal and state bills of rights.32 Since the founders derived their conception of classical virtue from the martyrs and historians of the late Roman republic and the early empire, the zenith of Stoic popularity, Stoicism contributed much to their conception of virtue as well. Influenced by Cicero, Seneca, and the Roman historians, as well as by modern philosophers influenced by the Stoics, the founders perceived the nature and purpose of virtue in Stoic terms. Even George Washington, unphilosophical by nature, imbibed Stoicism at an early age. The Fairfaxes, whom Washington considered his second family, read Marcus Aurelius and the other Stoics. At the age of 17, Washington read Sir Roger L’Estrange’s English translation of Seneca’s principle dialogues. As the historian Samuel Eliot Morison noted, “The mere chapter headings are the moral axioms that Washington followed through life.” As a result of their Stoicism, the founders equated “Roman virtue” with frugality, simplicity, temperance, fortitude, love of liberty, selflessness, and honor.33 Stoicism also proved an important source of solace for the founders, giving them the courage to face old age, death, and other hardships. The Stoics helped Jefferson endure the passing of his father (1752), his favorite sister (1762), and his wife (1782). Young Jefferson’s literary commonplace book overflows with Stoic quotations regarding the certainty of sorrow in this world and the need to endure it patiently. The first volume of Seneca’s works lay on Jefferson’s reading table when he died. John Adams turned to the Stoics in the wake of his wife Abigail’s death. Stoicism was a source of solace to young George Washington in his dealings with Sally Fairfax, the wife of his best friend, a woman he loved but could not have. Washington’s Stoicism enabled him to exercise restraint and to adopt the practical solution of marriage to Martha Custis.34 The classics furnished the founders with a common set of symbols, knowledge, and ideas, a literature select enough to provide common ground, yet rich enough to address a wide range of human problems from a variety of perspectives. Although it is true that the founders’ unique concerns helped

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shape their interpretation of the classics, it is equally true that the classical themes that pervaded their world helped identify and define those concerns. Just as minds constantly reshape intellectual tools, such tools leave an indelible imprint on the minds of those accustomed to using them.

Notes 1 

Robert Middlekauff, Ancients and Axioms: Secondary Education in Eighteenth-Century New England (New Haven: Yale University Press, 1963), pp. 76–7; Richard M. Gummere, The American Colonial Mind and the Classical Tradition: Essays in Comparative Culture (Cambridge, Mass.: Harvard University Press, 1963), p. 58.

2 

Irving Brant, James Madison (New York: Bobbs-Merrill, 1941–1961), vol. 1, pp. 64–5; Robert A. Rutland et al., eds., The Papers of James Madison (Chicago: University of Chicago Press, 1962–1977; Charlottesville: University Press of Virginia, 1977–), Commonplace Book, 1759–1772, vol. 1, p. 5; Merrill D. Peterson, James Madison: A Biography in His Own Words (New York: Harper and Row, 1974), pp. 16, 18; Richard Beale Davis, Intellectual Life in Jefferson’s Virginia, 1790–1830 (Chapel Hill: University of North Carolina Press, 1964), p. 36.

3 

Richard Hofstadter and Wilson Smith, (eds), American Higher Education: A Documentary History (Chicago: University of Chicago Press, 1961), Laws and Orders of King’s College, 1755, vol. 1, p. 120; John Witherspoon’s Account of the College of New Jersey, 1772, vol. 1, pp. 141–2; Gummere, American Colonial Mind, pp. 55, 64, 69, 72, 75; Martha W. Hiden, “Education and the Classics in the Life of Colonial Virginia,” in Virginia Magazine of History and Biography 49 (January 1941): 26; James McLachlan, “Classical Names, American Identities,” in John W. Eadie, ed., Classical Traditions in Early America (Ann Arbor: Center for the Coordination of Ancient and Modern Studies, 1976), pp. 87–91; McLachlan, “The Choice of Hercules,” in Lawrence Stone, ed., The University in Society (Princeton: Princeton University Press, 1974), vol. 2, pp. 474, 478.

4  L. H. Butterfield, ed., Adams Family Correspondence (Cambridge, Mass.: Harvard University Press, 1963), John Adams to John Quincy Adams, May 29, 1781, vol. 4, p. 144; Julian P. Boyd, et al., eds., The Papers of Thomas Jefferson (Princeton: Princeton University Press, 1959–), Thomas Jefferson to Martha Jefferson, March 28, 1787, vol. 11, p. 251; Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980), pp. 215, 218. 5 

Harold C. Syrett, ed., The Papers of Alexander Hamilton (New York: Columbia University Press, 1961–1979), “A Letter from Phocion to the Considerate Citizens of New York,” January 1784, vol. 3, p. 488.

6  Boyd, Papers of Thomas Jefferson, Jefferson to James Madison, September

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1, 1785, vol. 8, p. 462; Fiske Kimball, Thomas Jefferson, Architect (Boston: Riverside Press, 1916), pp. 45, 55, 64–5; Karl Lehmann, Thomas Jefferson: American Humanist (Chicago: University of Chicago Press, 1964), pp. 168–9, 182–3. 7 

Garry Wills, Cincinnatus: George Washington and the Enlightenment (Garden City, N.Y.: Doubleday, 1984), pp. 3, 12–13, 142, 162, 241; Gordon Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopff, 1992), p. 206; Marcus Cunliffe, George Washington: Man and Monument (Boston: Little, Brown, 1959), p. 130.

8 

Forrest McDonald, Novus Ordo Seclorum (Lawrence: University of Kansas Press, 1985), pp. 69, 195; Paul Leicester Ford, Washington and the Theater (1899; reprint, Dunlap Society, 1967), p. 1; Wills, Cincinnatus, p. 186; James Thomas Flexner, George Washington (Boston: Little, Brown, 1965–1969), vol. 1, p. 242; vol. 2, p. 30.

9 

John C. Fitzpatrick, ed., The Writings of George Washington (Washington, D.C.: U.S. Government Printing Office, 1931–1940), To the Officers of the Army, March 15, 1783, vol. 26, pp. 222–3, 225–7; A. C. Guthkelch, ed., The Miscellaneous Works of Joseph Addison (1914; reprint, St. Clair Shores: Scholarly Press, 1978), Cato, Act III, Scene 5, vol. 1, pp. 395–7.

10  Guthkelch, Miscellaneous Works of Joseph Addison, Cato, Act II, Scene 4, vol. 1, p. 357; Act IV, Scene 4, vol. 1, p. 432. 11  L. H. Butterfield, ed., The Earliest Diary of John Adams (Cambridge, Mass.: Harvard University Press, 1966), October–November 1758, p. 65; Robert J. Taylor, ed., The Papers of John Adams (Cambridge, Mass.: Harvard University Press, 1977-), Adams to William Tudor, August 4, 1774, vol. 2, pp. 126–7. 12  L. H. Butterfield, ed., The Diary and Autobiography of John Adams (Cambridge, Mass.: Harvard University Press, 1961), Diary, July 1, 1776, vol. 3, pp. 396–7. 13  Peter Shaw, The Character of John Adams, Chapel Hill: The University of North Carolina Press, 1976, p. 246–34: Linda K. Kerber, Federalists in Dissent: Imagery and Ideology in Jeffersonian America (Ithaca: Cornell University Press, 1970), p. 122. 14  Ralph Ketcham, Presidents above Party: The First American Presidency, 1789–1829 (Chapel Hill: University of North Carolina Press, 1984), p. 98. 15  Meyer Reinhold, Classica Americana: The Greek and Roman Heritage in the United States (Detroit: Wayne State University Press, 1984), p. 157; Robert Green McCloskey, ed., The Papers of James Wilson (Cambridge, Mass.: Harvard University Press, 1967), “Of Man as a Member of a Confederation,” vol. 1, p. 265; “Citizens and Aliens,” vol. 2, p. 581; Oration Delivered on the Fourth of July, 1788, vol. 2, p. 777. 16  Taylor, Papers of John Adams, “Letters of Novanglus,” March 6, 1775, vol. 2, pp. 311–12; John Cary, Joseph Warren: Physician, Politician, and Patriot (Urbana: University of Illinois, 1961), p. 108. 17  Lester J. Cappon, ed., The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams

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(Chapel Hill: University of North Carolina Press, 1959), Jefferson to Adams, June 27, 1813, vol. 2, p. 335. 18  Harry Alonzo Cushing, ed., The Writings of Samuel Adams (New York: G. P. Putnam’s Sons, 1908; reprint, New York: Octagon Books, 1968), Adams to Thomas Young, October 17, 1774, vol. 3, p. 163; Taylor, Papers of John Adams, “Thoughts on Government,” April 1776, vol. 4, p. 92; Reinhold, Classica Americana, p. 41; Richard M. Gummere, The American Colonial Mind and the Classical Tradition: Essays in Comparative Culture (Cambridge, Mass.: Harvard University Press, 1963), p. 18; Gummere, “The Heritage of the Classics in Colonial North America,” in Proceedings of the American Philosophical Society 99 (January 1955): 71; Douglass Adair and John A. Schutz, The Spur of Fame: Dialogues of John Adams and Benjamin Rush, 1805–1813 (San Marino, Cal.: The Huntington Library, 1966), Adams to Benjamin Rush, December 4, 1805, p. 44. 19  Cushing, Writings of Samuel Adams, The Town of Boston to Dennys De Berdt, October 22, 1766, vol. 1, p. 96; Gilbert Chinard, ed., The Commonplace Book of Thomas Jefferson: A Repertory of His Ideas on Government (Baltimore: Johns Hopkins Press, 1926), p. 27; Taylor, Papers of John Adams, “Governor Winthrop to Governor Bradford,” February 9, 1767, vol. 1, p. 200; Richard M. Gummere, “John Dickinson, Classical Penman of the Revolution,” in Classical Journal 52 (November 1956): 83; Bernard Bailyn, The Ideological Origins of the American Revolution, 2nd. ed. (Cambridge, Mass.: Harvard University Press, 1967), pp. 99–100; Gordon S. Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), p. 5. 20  Robert Douthat Meade, ed., Patrick Henry (Philadelphia: J. B. Lippincott, 1957–1969), vol. 1, pp. 31, 173–8; Dorothy M. Robathan, “John Adams and the Classics,” in New England Quarterly 19 (March 1946): 97–8. 21  Albert Ellery Bergh and Andrew A. Lipscomb, (eds), The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association, 1903), Jefferson to Benjamin Rush, January 16, 1811, vol. 13, p. 4; Thomas P. Govan, “Alexander Hamilton and Julius Caesar: A Note on the Use of Historical Evidence,” in William and Mary Quarterly, 3rd. ser., 32 (July 1975): 475–80. 22 Syrett, ed., Papers of Alexander Hamilton, “Catullus No. III,” September 29, 1792, vol. 12, pp. 500–1, 504–5; Hamilton to Unidentified Correspondent, September 26, 1792, vol. 12, p. 480. 23  Kate M. Rowland, ed., The Life and Correspondence of George Mason (New York: Russell and Russell, 1964), “Scheme for Replevying Goods under Distress for Rent,” December 23, 1765, vol. 1, p. 378; Max Farrand, ed., The Records of the Federal Convention of 1787, 3rd. ed. (New Haven: Yale University Press, 1969), vol. 2, pp. 370–2. 24 Taylor, Papers of John Adams, “Letters of Novanglus,” April 17, 1775, vol. 2, pp. 376–7; Herbert J. Storing, ed., The Complete Antifederalist (Chicago: University of Chicago Press, 1981), vol. 2, p. 413; vol. 3, p. 76; vol. 4, pp. 38, 227; vol. 5, pp. 58–60.

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25  Farrand, Records of the Federal Convention, vol. 1, pp. 143, 285, 317, 319, 448–449; Alexander Hamilton, John Jay, and James Madison, The Federalist: A Commentary on the Constitution of the United States (New York: Random House, 1941), Nos. 4, 6, 9, 16 and 18, pp. 21, 27–8, 52–3, 95, 106–10. 26  Frederick B. Artz, The Mind of the Middle Ages, A.D. 1200–1500: An Historical Survey (New York: Alfred A. Knopf, 1962), p. 271; H. Outram Evennett, The Spirit of the Counter-Reformation (Cambridge: Cambridge University Press, 1968), p. 91; Taylor, Papers of John Adams, “Letters of Novanglus,” January 23, 1775, vol. 2, p. 230. 27  Paul K. Conkin, Self-Evident Truths (Bloomington: Indiana University Press, 1974), pp. 30, 50–1, 54, 59; Perry Miller, The New England Mind (New York: Macmillan, 1939), vol. 1, p. 409. 28  Wood, Creation of the American Republic, pp. 201–3, 208, 211–14, 232–3. 29  Farrand, Records of the Federal Convention, 3rd. ed., vol. 1, pp. 299–300, 422–4, 431–2; volume 2, p. 299; Alexander Hamilton, John Jay, and James Madison, The Federalist, no. 63, pp. 410–11, 415; Rutland, Papers of James Madison, Additional Memoranda on Confederacies, November 30, 1787, vol. 10, p. 274; Wood, Creation of the American Republic, pp. 554, 557–8; Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States: Published During Its Discussion by the People (New York: Lenox Hill, 1888; reprint, New York: Burt Franklin, 1971), pp. 34, 43, 57–8, 65, 189–90; McCloskey, Papers of James Wilson, vol. 1, p. 303. 30  Joyce O. Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge, Mass.: Harvard University Press, 1992), p. 295; Rutland, Papers of James Madison, “For the National Gazette,” December 19, 1791, vol. 14, p. 170; January 28, 1792, vol. 14, p. 201; A. Whitney Griswold, “Jefferson’s Agrarian Democracy,” in Henry C. Dethloff, ed., Thomas Jefferson and American Democracy (Lexington, Mass.: D. C. Heath, 1971), p. 40; Paul A. Rahe, Republics, Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill: University of North Carolina Press, 1992), p. 414. 31  Douglas L. Wilson, “The American Agricola: Jefferson’s Agrarianism and the Classical Tradition,” in South Atlantic Quarterly 80 (Summer 1981): 347–54; Lehmann, Thomas Jefferson, p. 181; Gilbert Chinard, ed., The Literary Bible of Thomas Jefferson: His Commonplace Book of Philosophers and Poets (Baltimore: Johns Hopkins University Press, 1928; reprint, New York: Greenwood, 1969), p. 32. 32  Maryanne Cline Horowitz, “The Stoic Synthesis of the Idea of Natural-law in Man: Four Themes,” in Journal of the History of Ideas 35 (January– March 1974): 6, 9–10, 12–15; Conkin, Self-Evident Truths, pp. 92, 95; Rahe, Republics, p. 509. 33  Henry C. Montgomery, “Washington the Stoic,” in Classical Journal 31 (March 1936): 371–2; Flexner, George Washington, vol. 1, p. 241. 34  Silvio A. Bedini, Thomas Jefferson: Statesman of Science (New

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York: Macmillan, 1990), p. 45; Douglas L. Wilson, Jefferson’s Literary Commonplace Book (Princeton: Princeton University Press, 1989), pp. 17, 59, 61, 67–8, 71, 82, 84, 107; Davis, Intellectual Life in Jefferson’s Virginia, p. 118.

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4

The Universal Principles of the American Founding Thomas G. West

W

hat is the soul of the American founding? Is it the universal political principles stated in the Declaration of Independence? Is it something distinctive about a particular time and place, such as Protestantism, the English legal tradition, the Anglo-American racial stock, or the U.S. Constitution? Or is it an amalgam of some or all of the above? Conservative scholars often say that the soul of the founding is located not in universal principles, but in something specific either to colonial America or to the laws and Constitution created in the founding. Accordingly, one of Harvey Mansfield’s books is called America’s Constitutional Soul (not “America’s natural-rights soul” or “Declaration-of-Independence soul”).1 Conservatives tend to be uncomfortable with the language of equality and liberty found in the founding documents, which is sometimes disparaged as “rights talk.”2 According to James Ceaser, “The Right has always seen America through the prism of the French Revolution. For conservatives, the French Revolution was the result of a dangerous mode of metaphysical reasoning that wrongly tried to understand political phenomena from the perspective of abstract and universal principles.”3 They associate those principles with the transformation that has taken place in America over the past century – a transformation that they deplore.

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As for liberal scholars, they tend to argue, as Rogers Smith does in Civic Ideals, that although the Founders said they were adopting principles that apply to all human beings, they actually installed a political order dominated by racism, sexism, and homophobia.4 I will comment on slavery in a moment. Regarding women and homosexuals, it is true that the Founders thought that government should discourage sex outside of marriage (whether homosexual or heterosexual), and they mostly limited voting rights to males (women voted in New Jersey from 1776 to 1807). But they believed these policies to be consistent with their universal principles. Whether the Founders were correct about that or not is a big question. I showed in Vindicating the Founders that they made plausible arguments that these policies promote family integrity while preserving the principle of government by consent, both of which they regarded as essential to a republican form of government.5 If the Founders were correct about their belief that discouraging non-marital sex, and making males the titular head of the household, promote family integrity, and if family integrity is a necessary condition for a free society, then these policies can be understood as fully compatible with individual natural rights. The most important liberal objection to the founding is not that the Founders failed to live up to their principles, but that their principles were defective. Their understanding of equality and liberty was supposedly too narrow. The Founders’ conception does not include, as the United Nations’ 1948 Universal Declaration of Human Rights proclaims, “the right to social security, … the right to rest and leisure, … the right [of every person] to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services.”6 More recently, liberals have added another fundamental right, as Secretary of State Hillary Clinton noted in a 2009 human rights address: “people must be free … to love in the way that they choose.” In the question and answer period, Clinton clarified: “we have elevated into our human rights dialogues and our public statements a very clear message about protecting the rights of the LGBT [lesbian, gay, bisexual, transgender] community worldwide.”7 Against Mansfield, I will argue that the universal principles of the founding were its true core. Against Smith, I will argue that the Founders’ conception of their principles was both consistent and arguably just. But I quickly add this qualification: although universal principles guided the work of the founding generation, the leading elected officials of that day were unable to create a government fully in accord with those principles. The most obvious example is slavery. The nation “dedicated to the proposition that all men are created equal”8 only partly lived up to that standard. Leo Strauss writes, “Every human being and every society is what it is by virtue of the highest to which

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it looks up.”9 If that is true, then one may say, precisely with respect to slavery, that America in its original incarnation was defined by its anti-slavery principles. Every leading Founder condemned slavery. In a justly famous passage, Jefferson exclaimed, “I tremble for my country when I reflect that God is just, that his justice cannot sleep forever.” Many of the Founders successfully promoted policies that limited the expansion of slavery, and, in eight of the early states, ended it.10

How to proceed What then are the founding principles? That question might seem to have an easy answer, because the famous phrases of the Declaration of Independence are so familiar: “created equal,” “life, liberty, and the pursuit of happiness,” “consent of the governed.” But in fact few Americans today understand those principles in the Founders’ sense. Nor do they have access to the reasoning that led the Founders from these abstract principles to the public policies that were crucial to the success of constitutional democracy. Many of the relevant documents and laws of the founding era are hardly known in our time except to academic specialists – although they are easily accessible on the internet and very readable. One reason for that misunderstanding is that the terms of the Declaration of Independence, especially the ideas of liberty and equality, have been verbally embraced but in fact significantly repudiated and redefined by the liberalism of the twentieth and twenty-first centuries. The idea of equality, for example, is often taken today to mean that every person should have the same resources as all others, at least with regard to enjoying “the economic, social, and cultural rights indispensable for his dignity and the free development of his personality.”11 Minority groups are presumed to be denied their rightful equality if they are not hired in numbers roughly proportionate to their percentage of the population.12 And the idea of liberty is said to mean that if you have a formal, legal right to do something, for example a right to travel, or to an abortion, and if you cannot afford to pay for the travel or the abortion, then you really do not have an effective right to either one.13 This liberal view of rights is very different from the Founders’, for whom the right to liberty was a right to be free from the coercive interference of others. They did not think it included a right to demand money and services from others – except in the case of urgent need.14 There is a second reason why the Declaration’s theory of government is misunderstood today. Scholars who work on the theory of the founding often focus on personal or private documents – letters, books, sermons,

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newspaper articles, or remarks made in unpublished notes to oneself – which may or may not reflect the Founders’ consensus on principles. For example, in historian Gordon Wood’s acclaimed 653-page book on the political theory of the founding, The Creation of the American Republic, 1776–1787, which makes extensive use of letters, sermons, and privately printed pamphlets, there is not a single discussion of the natural-rights theory in the Declaration of Independence or in any of the other official documents.15 Barry Shain attempts to prove that the founding was animated not by a concern for individual rights but rather by “a Protestant communal understanding of the good.” But in order to reach that conclusion, he has to exclude or distort the statements of principle found again and again in the leading public documents.16 A related obstacle to understanding is that scholars often look to individual Founders, especially to Thomas Jefferson and James Madison, for an understanding of the theory of the founding. But Jefferson was only one among many. In some ways, for example in the vehemence of their hostility to government support of religion, Jefferson’s and Madison’s views are not representative of the founding-era consensus. Careful study of the thought of individual men typically leads scholars to highlight things that they quarreled about (e.g., Jefferson’s preference for farming versus Hamilton’s for manufacturing), as opposed to the fundamentals they all agreed on. One of the striking things about the leading men is how different they were in their particular preoccupations, and yet how much they agreed on principles. Their diverse talents and concerns complemented each other well in their common enterprise. There is a third obstacle to understanding. People are often tempted to consult European philosophers to explain the Founders’ principles. If there is an ambiguity or question about the meaning of a phrase like “consent of the governed,” scholars will sometimes turn to John Locke and report his view of the matter. I have no objection to reading Locke as a source of the Founders’ ideas. The colonists quoted Locke more often than any other political writer during the fertile period from 1760 to 1775, when they were explaining to each other the principles of government.17 But that does not mean they agreed with everything that Locke said. With regard to equality, consent, or any of the other fundamental principles, it is safest to start with documents published by legislatures, conventions, town meetings, and other elected bodies, supplemented by statements of prominent public officials acting in their official capacity. These public documents are of course sometimes illuminated by private letters, sermons, and essays. The Declaration of Independence is the best place to begin, because it is

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literally the founding document of the American political order. It was formally approved by Congress as its definitive explanation and justification of the Revolution at the moment when the United States became an independent nation. But the Declaration is so brief that it is difficult today to tell what the key terms mean. The most notorious example is “all men are created equal.” However, it is easy to clarify the Declaration, to fill out the picture that it only sketches, by consulting other official documents.

Equality The second paragraph of the Declaration begins, “All men are created equal.” The question is, in what sense are men equal? And who is included in the word “men”? One common error can be quickly disposed of. “Men,” in this document as in all leading statements of principle in the founding era, refers to all human beings, not just to males. One can see this in other pronouncements of Congress from the same period, in which parallel phrases were used, such as “humanity,” “mankind,” “inhabitants.” For example, Congress’s 1774 Declarations and Resolves states that “the inhabitants [i.e., not only the males] of the English colonies in North-America, by the immutable laws of nature, … have the following RIGHTS: … life, liberty, and property.” In a 1776 address to foreigners fighting for the British, Congress said, “there may be many of liberal minds [among you], possessing just sentiments of the rights of human nature [i.e., not only of males].”18 Second, to clarify the meaning of equality in the Declaration of Independence, the state Declarations of Rights are especially useful. The state governments, we sometimes forget, were considered at that time to be as authoritative in their proper sphere as the Continental Congress. In the 1770s and 80s, the jurisdiction of the federal government did not extend much beyond foreign policy. In several of those state bills of rights, the equality idea is restated in different words that clarify the Declaration of Independence. Virginia says, “All men are by nature equally free and independent.” Massachusetts has “All men are born free and equal.” These two expressions – “born free and equal” and “by nature equally free and independent” – may be taken as parallel versions of “created equal.” Eight of the early state constitutions contain this or similar language.19 What is meant therefore by the assertion of human equality is a fact, namely, that adult human beings are equal in the sense that they are not naturally subordinated to one another. “Equal” means “equally free,” that is, independent of all authority or rule by other human beings. Equality in the

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Founders’ sense is not a product of law or social construction or government policy. It is something that every human being is “born” with or possesses “by nature.” It is true that other people can deprive us of that natural equality by force. We can also voluntarily agree to be ruled by others. Children are of course ruled by their parents without their consent. But once they reach the age of reason, they are free of all rule from others until coercion or consent changes that. That is because no one is born to become a slave to another person – including one’s parents – when he or she becomes an adult. Equality does not mean anything more. James Wilson explains in his 1792 Lectures on Law: “When we say that all men are equal; we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements.”20 Nor does it mean that all human beings have a right to equal access to the good things of life. People do not have a natural right to a living wage, health care, or education paid for by the society. It only means that no one is by nature the ruler of any other person.

Natural rights and natural-law After “all men are created equal,” the Declaration immediately adds that human beings are “endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” The fact that rights are listed after equality seems to imply that they are two separate topics. In a sense that is true: equality is a fact of the human condition (no one is by birth or nature authorized to be the ruler of another adult), while rights are claims about how things should be and not necessarily how things are. But a little reflection shows that the “inalienable rights” idea is nothing more than a different formulation of the equality idea, with the juridical implication made explicit. If everyone is born free, and if no one has a right to take that freedom away, then everyone has a right to life, liberty, and the pursuit of happiness. People ought to be left alone to do what they think is necessary and appropriate to preserve their lives. They should have the liberty to do as they please, including the right to pursue happiness in the way that they think best. So the Founders’ doctrine of natural rights is at base nothing more than a restatement of the idea that (except for the temporary state of childhood) we are all born free and independent of the control of others, and that we deserve to retain that freedom and independence if we choose. If someone was born our natural ruler, we would not have the right to life or liberty. The one who rules us could rightfully deprive us of liberty and take away our life at any time.

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In the state Bills of Rights, we find other natural rights mentioned. Two are far more important than the rest. One is “acquiring and possessing property.”21 We today often overlook the twofold character of the property right. By protecting not only possession but also acquisition, this right is meant to benefit the poor no less than the wealthy. A just economic order will enable the poor to acquire property by keeping or selling the fruits of their own labor, or selling their own labor to others.22 The other fundamental human right is, in Pennsylvania’s formulation, “a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding.” Other favorite formulations of this right include “the rights of conscience,” “free exercise of religious worship,” or simply “religious liberty.”23 These phrases all mean the same thing: to quote Maryland, “no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice.”24 The First Amendment of the federal Constitution of 1787 similarly affirms the “free exercise of religion.” These five basic rights – life, liberty, pursuit of happiness, acquiring and possessing property, and free exercise of religion – are the ones named most frequently in the founding era. These rights sum up what it is that human beings have by nature and what they deserve to keep, that is, what they are rightfully able to claim for themselves. These rights cannot be separated from duties. If you and I have a right to liberty, each of us has a duty not to make the other a slave. Property rights mean that stealing is forbidden. If we equally possess a right to life, both have a duty not to commit murder. In the Maryland Bill of Rights just quoted, for example, immediately after its statement of religious liberty, this proviso is added: “unless, under color of religion, any man shall disturb the good order, peace, or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.” The right to practice one’s religion does not give one a right to disobey the laws protecting the person and property of others, or the laws protecting the moral conditions of freedom. The Founders sometimes formulated their idea of rights in the language of duty. That is one meaning of the expression “laws of nature.” In the first sentence of the Declaration of Independence, “the laws of nature and of nature’s God” entitle every nation to “a separate and equal station” “among the powers of the earth.” The laws of nature justify the idea of national independence and forbid the imperialistic domination of one nation over other nations. That sentence of the Declaration does not explain why this is so. But it is easy to see that this is directly related to the statement in the next sentence that all men are created equal, and that all have the

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same right to liberty. For if we are all equally free, no nation is allowed to rule any other nation, for the same reason that no individual is allowed to rule any other individual, without that person’s consent. All relations among nations, just as among individuals, should be based upon voluntary agreements, not coercion. The laws of nature specify the duties that protect the rights of individuals. The Georgia Constitution refers to “the common rights of mankind” which Americans “are entitled to by the laws of nature and reason.”25 The obligation to respect everyone else’s liberty is the ground of the right of each person to be free of the coercion of another. A typical foundingera statement of the relation between the laws of nature and individual rights is found in Congress’s 1774 Declarations and Resolves quoted earlier: “By the immutable laws of nature,” the colonists “are entitled to life, liberty and property” and “to participate in their legislative council.”26 These same principles were understood to be the basis of the Constitution of 1787, as we read in The Federalist. Explaining why the Framers of 1787 abandoned the existing Articles of Confederation and proposed a new constitution, Madison writes, paraphrasing the Declaration of Independence, “the transcendent law of nature and of nature’s God … declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.” As for the consent of the governed, Madison quotes and footnotes the Declaration when he refers to “the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”27

The purpose of government What then is the role of government? Some scholars argue that although the Founders did acknowledge universal principles, these principles provide little or no guidance for the conduct of political life. Barry Shain writes, “naturallaw and rights described a condition outside of civil society, and … this meant for most of them that such claims played a limited role in shaping the specific moral and political contours within society.”28 Pauline Maier argues that the Declaration of Independence was “a peculiar document to be cited by those [such as Abraham Lincoln] who championed the cause of equality [for slaves]. Not only did its reference to men’s equal creation concern people in a state of nature before government was established, but the document’s original function was to end the previous regime, not to lay down principles to guide and limit its successor.”29 Shain and Maier seem to be saying that the Founders’ equality doctrine means that human beings possess equal

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rights only outside of civil society, and that once they become members of a political community, their original equality has little or no further significance. If Shain and Maier were correct, there would be no inconsistency between the natural liberty of human beings and the political institution of slavery. The Declaration of Independence itself explicitly contradicts these scholars. Government is said to have a purpose that is directly linked to rights that all human beings enjoy in a state of nature: “to secure these rights, governments are instituted among men.” Several other state constitutions echo this, for example, the Preamble to the 1776 Pennsylvania Constitution: “all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it, to enjoy their natural rights, and the other blessings which the author of existence has bestowed upon man” (my italics). Besides Pennsylvania, eight other states explicitly state or clearly imply in fundamental documents that government’s purpose is to secure the natural rights of the citizens.30 “To secure these rights” means to protect people’s life, liberty, and property against the violence or intrusion of others. Government must make and enforce laws to accomplish this end. Shain is therefore incorrect when he says that the Founders’ principles do not lead to “specific moral and political contours within society.” I name three examples. The Massachusetts Bill of Rights specifies the criminal and civil law as the means by which government protects life, liberty, and property.31 Jefferson explains: “wicked and dissolute men … commit violations on the lives, liberties, and property of others. … [G]overnment would be defective in its principal purpose were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them.”32 Second, government protects the citizens’ person and property by its armed forces, deterring or defeating violence against the community from abroad. Again, the Massachusetts Constitution makes this an explicit duty of government: the armed forces of the state, led by its governor, are instructed “to kill, slay, and destroy, if necessary, and conquer … all and every such person and persons as shall … attempt or enterprise the destruction, invasion, detriment, or annoyance of this Commonwealth.”33 Likewise, the Preamble of the United States Constitution names “the common defense” as one of the purposes of the union. Third, government cannot secure the rights of individuals without a necessary moral foundation. The 1776 Virginia Bill of Rights states, “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” This or similar

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language was repeated, with minor variations, in the Constitutions of four other states, and in the federal Northwest Ordinance.34 This concern led to government support of cultivation of good character through religion, education, and lasting marriage. Besides the primary duty of government to protect natural rights, a second conclusion follows from the equality principle: governments, as the Declaration says, “deriv[e] their just powers from the consent of the governed.” Thirteen of the first sixteen state constitutions affirm that the people’s right to political authority is fundamental. Most succinct is Maryland – “all government of right originates from the people” – but the others were similar.35 The practical meaning of the consent principle is that no authority of one adult over another is rightful unless voluntarily agreed to by the person being ruled. This implies a form of government that is not only consented to at the moment one joins the community, but that also has a substantial democratic element in the lawmaking body, so that the people can consent to the broad direction of government policy after they become citizens. When today’s scholars discuss these natural rights, they sometimes leave the impression that the Founders had only a vague idea of what they meant. Historian Jack Rakove writes, “the frequency and enthusiasm with which they celebrated their rights and liberties also gave those terms a flabby imprecision.”36 But the Founders’ understanding, when expressed in their official documents, is quite clear, as we have seen. One might ask what way of life emerges when government establishes public policies that “secure these rights”? When people live together under the laws of nature, respecting each other’s equal natural rights, no one suffers violence to life or limb except as just punishment for violating the rights of others. All may worship God as they think best without interference from others. Each person may use his or her talents to acquire property through voluntary transactions, and to be assured that that property will be safe from the violence of others. Families are free from the micromanagement of outsiders. Dealings among adult human beings are based on personal choice and contracts, or in the case of group activities, on freedom of association. All are free to join any association they please, if its members will have them. The association has the right to expel anyone for any reason, just as any member of that association is free to leave it at any time and for any reason, whether it be a church, club, private school, philanthropic group, or place of employment. In the Founders’ vision of the good society, peace, harmony, friendship, love, and happiness will flourish on the basis of self-governing political communities, self-governing private associations, and stable families. In sum, to quote George Washington’s letter to the Hebrew Congregation in

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Newport, “every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”37 All of this will take place within the confines of rules that limit one’s liberty only to the extent that those limits enhance the enjoyment of liberty for all. We give up the natural liberty to punish crimes, and to drive on the left side of the street, so that everyone’s mutual security is improved.

Natural rights: amoral or anti-moral? I now turn to the view that prevails among current scholars, namely, that the founding is a kind of blend or amalgam of disparate elements.38 The “amalgam” approach often begins from the claim – a claim that is incorrect, as I have shown – that natural rights in the Founders’ sense are amoral or even immoral. But since there is obvious concern for the moral character of citizens in the founding documents, this leads some scholars to conclude that that concern is not part of the natural-rights teaching, and that it belongs to some tradition or traditions that are not part of, or that contradict, the Founders’ universal principles of natural rights. Alexis de Tocqueville, writing in 1835, may have been the first to assert that there is no logical connection between the Founders’ concern with liberty and their concern with morality. Anglo-American civilization … is the product … of two perfectly distinct elements. … I mean to speak of the spirit of religion and the spirit of freedom. … Thus in the moral world, [governed by the spirit of religion,] everything is classified, coordinated, foreseen, decided in advance. In the political world, [where the spirit of freedom prevails,] everything is agitated, contested, uncertain.39 When Tocqueville says that the spirit of religion and the spirit of freedom are “perfectly distinct” and that “the spirit of freedom” lacks moral content, he anticipates a current scholarly view of the individual-rights doctrine. Like Tocqueville, the recent literature tends to treat the political theory of the founding as an amalgam of distinct or even contradictory traditions. For Michael Sandel, the traditions are “liberalism” and “republicanism.” Sandel argues that the idea of individual rights belongs to a tradition of liberalism “that runs from John Locke, Immanuel Kant, and John Stuart Mill to John Rawls.” Liberal thinkers, Sandel says, believe that government should be “neutral on the question of the good life.” But Sandel rejects liberalism, for this reason: if government is “neutral on moral and religious questions,” it cannot “secure the liberty it promises, because it cannot sustain the kind

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of political community and civic engagement that liberty requires.” Sandel thinks that the founding was partly based on this “liberal neutrality,” but that it was combined with a countervailing, and at first more powerful, doctrine of “republicanism.” “The republican conception of freedom,” writes Sandel, “unlike the liberal conception, requires a formative politics, a politics that cultivates in citizens the qualities of character [that] self-government requires.”40 William Galston agrees with Sandel that the origin of today’s problems lies partly in what he too calls the “liberalism” of the founding principles: The … founding set in motion a new political order based to an unprecedented … extent on individual rights, personal choice, and democratic/ egalitarian social relations. … [W]hat has happened to the American family in the past two generations is in important respects a consequence of the unfolding logic of authoritative, deeply American moral-political principles.41 For Galston, like Sandel, the “unfolding logic” of natural rights was restrained by a “longstanding balance between juridical liberal principles and a complex of traditional moral beliefs.” This balance was made possible by the Founders’ “amalgam” of “the essentially secular principles of democratic liberalism; the moral maxims derived from Christianity; and the mores [moral habits] of Protestant Americans.”42 Galston’s approach differs from that of most scholars because he correctly states that both Locke and the Founders held that a moral foundation is necessary for security of rights. However, Galston believes that in spite of that commitment, the Founders’ acceptance of “juridical liberal principles” proved destructive of constitutional democracy itself. The question is whether Galston is correct when he blames the Founders’ principles for those features of contemporary liberalism to which he objects. It seems to me that the post-1900 transformation in the American understanding of justice is better explained by the rejection of the founding principles by leading intellectuals after the Civil War, and not by what Galston calls their “unfolding logic.” Political theorists are only gradually beginning to absorb the implications of recent research on Progressivism, its legacy in current liberalism, and its explicit break with the founding.43 The Progressives repeatedly repudiated natural rights and natural-law as unjust, ignoble, and untrue.44 The term “liberalism,” as it is used by scholars, is itself an indication of why they often miss this point. The promiscuous use of this term to cover such disparate men as Locke, Kant, Dewey, Rawls, and Barack Obama is evidence of the scholars’ underestimation of the radicalism of the Progressive and post-1900 liberal revolution in American politics. The word liberalism was unknown in the founding. The Founders called themselves “liberal,” meaning generous or respectful of the rights of others. They were devoted to liberty.

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They respected the virtue of liberality (generosity). But they were emphatically not “liberals” in the post-1900 sense of Franklin Roosevelt, Lyndon Johnson, and Obama.45

An American amalgam? Or are universal principles (natural rights) in the saddle? Let us consider more closely the “amalgam” thesis, which sees the founding as a blend of the universal principles of natural rights with other traditions tied to the American colonial English and Christian heritage. Michael Zuckert’s account is similar to Galston’s. Zuckert agrees that the Founders’ concern with morality and religion is a logical outgrowth of their natural-rights principles. He says that the Founders saw the need to promote a “rights infrastructure,” the “social institutions and traits of character that make rights-securing possible.”46 Zuckert at first appears to be saying that there is no tension between individual rights and the elements of this “rights infrastructure.” But it turns out that there is some such tension, perhaps even a contradiction. Like Galston, Zuckert speaks of an American “amalgam,” of British constitutionalism, Christianity, “republicanism,” and natural rights. This amalgam supposedly “led America … to a particularly tense existence as these four different, and, in some dimensions, incompatible elements fell in and out of harmony with each other” (my emphasis).47 An amalgam, in the case of tooth fillings, is a mixture of several metals in which the distinctiveness of each metal is lost and absorbed into the whole. Zuckert’s use of that term therefore suggests a kind of indiscriminate blending of these different traditions of political thought. Sandel thinks of the American amalgam in just that way. For Sandel, a large dose of “republicanism” (orientation toward community and the common good) was able to dilute a smaller dose of “liberalism” (orientation toward self-interested individual rights) in such a way that the public-spirited “republican” dimension (fortunately) kept in check the selfish “liberal” one. But this is not what Zuckert has in mind. In Zuckert’s account, what took place in the founding is not the blending characteristic of tooth fillings, but rather an acceptance of earlier traditions of constitutionalism, religion, and “republicanism” only to the extent that they conform to the ends of the Founders’ natural-law doctrine. Zuckert writes, “the natural rights philosophy remains America’s deepest and so far most abiding commitment, and the other [elements] could enter the amalgam only so far as they were compatible, or could be made so, with natural rights.”48

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I agree with this formulation. But if it is true, then I cannot understand why Zuckert thinks that Christianity, British constitutionalism, or republicanism could be “in some dimensions incompatible” with natural rights. The incompatible elements, if there were any, simply did not “enter the amalgam.” For example, founding-era Christianity did not stand in tension with the idea of natural rights, because most Christians, both Protestant and Catholic, believed that God commands us not to interfere with other people’s forms of worship. Protestants in particular thought that the New Testament favors a republican form of government. John Carroll, the first Catholic bishop of the United States, appealed to “the luminous principles on which the rights of conscience and liberty of religion depend” in his pleas for full citizen rights for Catholics, almost two centuries before the official Catholic teaching embraced that doctrine in the Second Vatican Council of 1965.49 Against Sandel, I side with those scholars who argue that the philosophy of natural-law and natural rights was the core of the founding. I agree with Galston and Zuckert in particular that from that idea, applied to the particular circumstances of the English colonies of North America, the Founders drew their conclusions about government structure, promotion of Christianity, and formation of character. But this means that the Founders’ partial acceptance of the legacies of their colonial experience – such as English common law, periodically elected bicameral legislatures, one-man chief executives, jury trials, and Protestantism – was dictated by their judgment of which elements would most effectively secure the natural rights of the citizens. During the century and a half preceding the Declaration of Independence, American Protestantism had already reformed itself, in significant measure from within, to the point that there was no conflict with the natural-law theory of the founding.50 As for the common law, the Founders ruthlessly pared away any parts of it that were judged incompatible with natural-law, such as the legal presumption of primogeniture (inheritance automatically going to the eldest son) or privileges assigned by law to a hereditary aristocracy. New York’s Constitution of 1777 made the Founders’ position explicit: “the common law of England” is still in force, except that “all such parts of the said common law … [that] are repugnant to this constitution … are abrogated and rejected.” Which parts are repugnant? Those that conflict with the laws of nature. New York’s constitution, like all the state constitutions of the founding, was intended “to secure these rights,” as stated in New York’s preamble, quoting the Declaration of Independence.51 The authority of the common law, no less before than after 1776, was defined by an appeal to the standard of natural right. I suggest that a horse and rider is a better analogy than “amalgam” for the bundle of ideas and institutions that constitute the founding. Let the

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horse represent whatever made the colonial Americans what they were. Besides the universal facts of human nature, these include their geography, laws, racial stock, popular sentiments, moral habits, and religion. The rider would represent the politicians, informed by the natural-law philosophy, who were chosen by the people as their rulers. The horse is not something that the statesman can create. It is composed of brute facts over which he has little or no control. The horse can be guided in the right direction if the rider is skillful. But he has to work with the facts and traditions that he is given. If the horse is too lame, stupid, slavish, or stubborn, the rider might not be able to ride very far with him, or he might get thrown off. There are limits to what any statesman, however prudent, can do with the people and traditions he inherits, especially if he is ruling them with their consent. The right to liberty and to acquire property is universal. It belongs to every human being everywhere. But history and experience teach us that it is difficult and therefore rare to establish a political order that protects that natural liberty. Most people in most places, due to their prejudices, habits, dispositions, and ignorance, lack the necessary qualities of character and mind. But in the founding, the “horse” (America’s colonial population and heritage) happened to be unusually healthy, already habituated to going more or less in the right direction, and eager to accept the direction of prudent riders. Hamilton understood this difficulty perfectly: “I hold with Montesquieu that a government must be fitted to a nation as much as a coat to the individual, and consequently that what may be good at Philadelphia may be bad at Paris and ridiculous at Petersburg [then capital of Russia].” He therefore wrote, with respect to the recent slave rebellion in the French colony of St. Domingo (later called Haiti), that a republican form of government would fail there: “No regular system of liberty will at present suit St. Domingo. The government, if independent, must be military – partaking of the feudal system.”52 The Founders inherited a colonial tradition of English law, Protestant Christianity, and republican political institutions that was warmly supported by the people. Educated preachers and politicians had long accepted the modern natural-rights teaching that became the official basis of the founding.53 What marred the colonial state of things, from the point of view of that teaching, was the persistence of certain British traditions that were opposed either to government by consent, or to security of individual rights. Most governors were appointed by the king. Royal vetoes of colonial laws were common. After 1763, Parliament attempted to impose internal taxation on the colonies without the consent of their locally elected legislatures. Finally, in 1769, the British Parliament openly asserted that the colonists had no right to govern themselves at all (English law was to prevail “in all cases whatsoever”), except

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to the extent arbitrarily granted by Parliament. The American Revolution could never have succeeded, so far as it did succeed, without something like the accidentally preexisting colonial religious and legal traditions – the healthy and intelligent horse. But the Revolution would not have taken the direction it did without the leading role of the natural-rights theory.

The English constitution – or natural rights? To clarify my horse-and-rider analogy, I turn to legal historian John Reid. He admits that a multitude of documents in the pre-1776 period appeal to natural-law and natural rights, but he denies the significance of these appeals. Reid argues for what he calls the “irrelevancy of natural rights.” He claims that “Nature was mentioned either as alternative authority or as rhetorical flourish” during the 1760s and early 70s, but that the real source of the rights fought for in the Revolution was “British constitutional theory or common law.” To illustrate, Reid quotes Congress’s 1774 Declaration and Resolves, which relies on “the immutable laws of nature, the principles of the English constitution, and the several [colonial] charters or compacts.”54 In that document, Reid writes, “not one right is asserted that was not either a constitutional right or a right derived from the authority of custom” or law. Reid is correct to draw on that 1774 Declaration as an important statement of American principles. He is also correct that prior to 1776, the Americans were careful to appeal to both the laws of nature and English tradition. But they had good reason to do so. The American strategy was to argue that colonial government was grounded in both natural and positive law: “the immutable laws of nature” as well as “the principles of the English constitution.” As long as England was willing to respect its own constitutional tradition as the Americans defined that tradition, the colonies would gladly continue as 13 self-governing political communities within the British empire. But since England rejected the American understanding, the ultimate appeal had to be to the laws of nature. For if Parliament changed the “English constitution” – for example, by abolishing the right to colonial self-government – any further appeal to the “English constitution” would be in vain. A higher principle of right was the only recourse: “the laws of nature and of nature’s God.” That means the American standard was not British tradition but rather natural-law. John Adams pointed out in 1773 that it would be dangerous at that time to appeal to “principles which are founded in nature, and eternal unchangeable

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truth” because as long as there was hope of reconciliation with Britain, it was wise to avoid appeals to “the ratio ultima rerum [the ultimate principle of things], – resort to club law and the force of arms.” Adams meant that an effective appeal to the laws of nature against an existing political authority is in effect an appeal to the use of arms against the government. In 1773, Adams therefore proposed leaving out those “principles which I loved as well as any of the people,” and “discussing the question with the governor upon principles more especially legal and constitutional.”55 For similar reasons, most pre-1776 documents protesting British misconduct emphasized the legal and constitutional argument. But when the time came for the break with Britain in 1776, the “eternal unchangeable truth,” and no longer “British constitutional theory or common law,” became the explicit foundation of the new nation. Reid neglects the circumstantial reasons that led the Americans to conceal or distract attention from the fact that their real standard was that of natural right and not anything specifically British at all. In the 1760s and 70s, the American understanding of the English constitution was shared by few in England itself. For America, the true English constitution was the body of English law and custom that conformed to the principles of natural-law. In other words, far from being “irrelevant,” as Reid argues, the natural-rights theory determined the very meaning of the English constitution. An illustration of this may be seen in an American pamphlet discussing voting rights in England. Noting that “nine-tenths of the people of Britain” are not eligible to vote because voters have to own a large amount of land, the author concludes that the structure of Parliament itself is “contrary to the fundamental principles of the English Constitution,” which is “founded upon the principles of the law of nature.”56 In the American mind, the genuine “English constitution” existed in perfect conformity with the principles of natural right, which require that the people be adequately represented in the legislative body. Thus the English constitution did not even fully exist in England! Instead, it became for the Americans a kind of higher-law standard that could be appealed to without apparent disloyalty as long as they remained part of the British empire. Similarly, in a widely read and praised document published in 1774 (the Summary View), Jefferson defined the constitutional role of the English king as limited to protecting the self-governing American colonies against the encroachments of the British Parliament, contrary to the actual royal practice of vetoing colonial legislation.57 In other words, the Americans’ understanding of the role of the English monarch was similar to what later became the practice in the British Commonwealth of Nations. The English king or queen was recognized as a merely nominal sovereign, while the former colonies, such as Australia and Canada, governed themselves through locally elected legislatures.

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New York’s Constitution of 1776, quoted earlier, states that “all such parts of the said common law [of England] … [that] are repugnant to this constitution … are abrogated and rejected.” The authority of the English tradition, no less before than after 1776, was strictly limited by the laws of nature. Statesmen guided by natural rights were in the saddle. If the Founders’ principles really do apply to all human beings; if their ideal society is one in which human life can flourish; if their principles provide for robust support of the moral and religious conditions of orderly freedom – if all of this is true, as they believed, then these principles may be as important to us now as the Founders thought they were then. If we can recover the meaning of these principles, it may once again become possible to view them not as objects of scholarly curiosity or of devoted but ignorant reverence, but rather as practically useful for political life today.

Notes 1 

Harvey C. Mansfield, America’s Constitutional Soul (Baltimore: Johns Hopkins University Press, 1991).

2 

Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1993).

3 

James W. Ceaser, Reconstructing America: The Symbol of America in Modern Thought (New Haven: Yale University Press, 1997), p. 79.

4 

Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997).

5 

Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, Md.: Rowman & Littlefield, 1997), chap. 3, “Women and the Right to Vote,” and chap. 4, “Women and the Family.”

6 

United Nations, Universal Declaration of Human Rights, 1948, Articles 22, 24, 25, http://www.un.org/en/documents/udhr, accessed February 15, 2011.

7 

Hillary Clinton, Remarks on the Human Rights Agenda for the 21st Century, December 14, 2009, http://www.state.gov/secretary, accessed February 15, 2011.

8 

Abraham Lincoln’s phrase in his Gettysburg Address, November 19, 1863.

9 

Leo Strauss, The City and Man (Chicago: Rand McNally, 1964), p. 153.

10  Jefferson, Notes on the State of Virginia (1787), Query 18, in Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), p. 289. West, Vindicating, chap. 1, “Slavery.” 11  United Nations, Universal Declaration of Human Rights, Art. 22. 12  Federal agencies responsible for enforcing laws against workplace discrimination “will generally consider a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5ths) or eighty percent

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(80%) of the selection rate for the group with the highest selection rate as a substantially different rate of selection.” The government will tentatively conclude that the employer is using a hiring criterion that “works to the disadvantage of members of a race, sex or ethnic group” and is therefore unlawful discrimination. I.e., the federal government presumes racial discrimination if blacks or Hispanics do not get hired at 80 percent of the rate at which whites are hired, no matter what the educational or skill level of the applicants might be. Quoted from “Questions and Answers To Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures,” http://www.eeoc.gov/policy/docs/ qanda_clarify_procedures.html, accessed March 12, 2011. This presumption is rebuttable, but the burden of proof is on the employer. 13  Jennifer Nedelsky explains, in Private Property and the Limits of American Constitutionalism (Chicago, Ill.: University of Chicago Press, 1990),p. 263: “once we acknowledge that some basic rights can only be enjoyed with state economic support, we have left the boundary of [the Founders’] negative liberty behind (and, of course, further redistributive incursions on property are likely to follow).” She refers the reader to Supreme Court Justice Thurgood Marshall’s dissent in Harris v. McRae, 448 U.S. 297 (1980), p. 347: “In today’s decision … the Court suggests that a withholding of funding imposes no real obstacle to a woman deciding whether to exercise her constitutionally protected procreative choice. … The Court perceives this result as simply a distinction between a ‘limitation on governmental power’ and ‘an affirmative funding obligation.’ For a poor person attempting to exercise her ‘right’ to freedom of choice, the difference is imperceptible.” 14  West, Vindicating, chap. 6, “Poverty and Welfare.” 15  Gordon S. Wood, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), won the Bancroft Prize in 1970. 16  Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (Princeton: Princeton University Press, 1994), p. 16. 17  Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” in American Political Science Review 78 (March 1984): 193. 18  Continental Congress, Declaration and Resolves, October 14, 1774, in Philip B. Kurland and Ralph Lerner, ed., The Founders’ Constitution (Chicago: University of Chicago Press, 1987), 1:2. Resolution of Congress, Inviting Foreigners Fighting for the British to Join the American Side, August 27, 1776, in Worthington C. Ford, ed., Journals of the Continental Congress, 1774–1789 (Washington: Government Printing Office, 1904–37), 5:707. 19  Declarations of Rights of Virginia, 1776, Art. 1; Massachusetts, 1780, Art. 1; Pennsylvania, 1776, Art. 1; Vermont, 1777, Art. 1; New York, 1777, Preamble; New Hampshire, 1784, Art. 2. Delaware, 1792, Preamble; Kentucky, 1792, Art. 12, §1. In Francis Newton Thorpe, ed., The Federal and State Constitutions (Washington, D.C.: Government Printing Office, 1909). All later quotations from state constitutions may be found here.

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20  Wilson, “Of Man, As A Member Of Society,” chap. 7 of Lectures on Law (1792), in Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis: Liberty Fund, 2007), 1:467. 21  Virginia Declaration of Rights, 1776, Art. 1; Declarations of Rights of Pennsylvania, 1776, Art. 1; Vermont, 1777, Art. 1; Massachusetts, 1780, Art. 1; and New Hampshire, 1784, Art. 2. The preamble of Delaware’s 1792 constitution is similar: “acquiring and protecting reputation and property.” 22  Thomas G. West, “The Economic Theory of the American Founding,” in Bradley C. S. Watson and Joseph Postell, (eds), Rediscovering Political Economy (Lanham, Md.: Lexington Books, 2011), pp. 159–85. 23  Since almost all the state constitutions contain similar language regarding religious liberty, I will refrain from citing them. 24  Declaration of Rights, Maryland Constitution, 1776, Art. 33. 25  Preamble, Georgia Constitution, 1777. An earlier formulation of the idea that natural rights are grounded in the law of nature appeared in the Stamp Act crisis, when the Massachusetts Assembly resolved that “there are certain essential rights … which are founded in the law of God and nature, and are the common rights of mankind” and that “no law of society can, consistent with the law of God and nature, divest [the people] of those rights. Resolutions of the House of Representatives of Massachusetts, October 29, 1765, Kurland and Lerner, (eds), Founders’ Constitution, 1:629. 26  Continental Congress, Declarations and Resolves, Oct. 14, 1774, in Kurland and Lerner, Founders’ Constitution, 1:2. 27  Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter, Intro. and Notes by Charles R. Kesler (New York: New American Library, Signet Classic, 2003): Federalist 43, p. 276, and 40, p. 249. 28  Barry Alan Shain and Rogers Smith, introduction to Shain, ed., The Nature of Rights at the American Founding and Beyond (Charlottesville: University of Virginia Press, 2007), p. 8. 29  Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997), p. 192. 30  New York Constitution, 1777, preamble (quoting Declaration of Independence). Vermont Constitution, 1777, 1786 (same as Pennsylvania). Massachusetts Constitution, 1780, preamble (similar to Pennsylvania). New Hampshire Constitution, 1784, 1792, Art. 2 (natural rights to life, liberty, and property) and Art. 12 (“Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property”). Delaware Constitution, 1792 (preamble lists natural rights, and individual provisions of the Bill of Rights provide for government protection). Virginia Constitution, 1776 (same as Delaware, except that natural rights are in Art. 1). North Carolina and Rhode Island, Declarations of Rights published by Ratifying Conventions, 1788 (same as Virginia). 31  Massachusetts Declaration of Rights, 1780, Art. 10 and 11. 32  Preface, A Bill for Proportioning Crimes and Punishments in Cases

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Heretofore Capital, 1779, prepared by Jefferson on behalf of the Committee for the Revision of the Laws of Virginia, Bill No. 64, in The Papers of Thomas Jefferson, ed. Julian P. Boyd et al. (Princeton: Princeton University Press, 1950–), 2:492. 33  Massachusetts Constitution, 1780, Chapter 2, sec. 1, art. 6. 34  Virginia Declaration of Rights, 1776, Art. 15; Pennsylvania Declaration of Rights, 1776, Art. 14; Vermont Declaration of Rights, 1777, Art. 16; Massachusetts Declaration of Rights, 1780, Art. 18; New Hampshire Constitution, 1784, Declaration of Rights, Art. 38. New Jersey had no similar constitutional provision, but on Dec. 4, 1777, it instructed its delegates to Congress to promote “piety and good morals.” Hezekiah Niles, Principles and Acts of the Revolution in America (orig. pub. 1822; New York: Burt Franklin, 1971), p. 461. Northwest Ordinance, 1787, Art. 1, in Merrill Jensen, ed., The Documentary History of the Ratification of the Constitution, vol. 1: Constitutional Documents and Records, 1776–1787 (Madison: State Historical Society of Wisconsin, 1976), 172. 35  Maryland Bill of Rights, 1776, Art. 1. Vermont Bill of Rights, 1777, Art. 5; Massachusetts Bill of Rights, 1780, Art. 5; New York Constitution, Preamble (quoting Declaration of Independence); Pennsylvania Bill of Rights, 1776, Art. 4; New Hampshire Bill of Rights, 1784, 1792, Art. 8; Delaware Bill of Rights, 1776, Art. 1; Virginia Bill of Rights, 1776, sec. 2; North Carolina Bill of Rights, 1776, Art. 1; Georgia Constitution, Preamble, 1776; Kentucky Constitution, 1792, Art. 12, sec. 2; Tennessee Constitution, 1796, Art. 11, sec. 1. Also Rhode Island Ratifying Convention, Bill of Rights, 1790, Art. 2. 36  Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997), p. 290. 37  Washington, letter to the Hebrew Congregation in Newport, Rhode Island, August 18, 1790, in Writings, ed. John Rhodehamel (New York: Library of America, 1997), p. 767, quoting the Bible, Micah 4.4. 38  Alan Gibson, Interpreting the Founding: Guide to the Enduring Debates over the Origins and Foundations of the American Republic (Lawrence: University Press of Kansas, 2006), p. 53, provides plenty of evidence that this is indeed the prevailing view. 39  Alexis de Tocqueville, Democracy in America (orig. pub. 1835 and 1840), trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), vol. 1, part 1, chap. 2, p. 43. 40  Michael Sandel, Democracy’s Discontent (Cambridge: Harvard University Press, 1996), pp. 4–5, 7, 24. 41  William A. Galston, “The Reinstitutionalization of Marriage: Political Theory and Public Policy,” in David Popenoe, Jean Bethke Elshtain, and David Blankenhorn, (eds), Promises to Keep: Decline and Renewal of Marriage in America (Lanham, Md.: Rowman & Littlefield, 1996), pp. 281–2. 42  William A. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (New York: Cambridge University Press, 1991), pp. 269, 267. 43  Examples of this recent scholarship: John Marini, The Politics of Budget

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Control: Congress, the Presidency, and the Growth of the Administrative State (Washington: Crane Russak, 1992). Charles R. Kesler, “Woodrow Wilson and the Statesmanship of Progress,” in Peter W. Schramm and Thomas B. Silver, (eds), Natural Right and Political Right: Essays in Honor of Harry V. Jaffa (Durham, NC: Carolina Academic Press, 1984), pp. 103–27. Kesler, “The Public Philosophy of the New Freedom and the New Deal,” in Robert Eden, ed., The New Deal Legacy: Critique and Reappraisal (Westport, Conn.: Greenwood Press, 1989), pp. 155–66. John Marini and Ken Masugi, (eds), The Progressive Revolution in Political Science: Transforming the American Regime (Lanham, Md.: Rowman & Littlefield, 2005). Eric R. Claeys, “Takings, Regulations, and Natural Property Rights,” in Cornell Law Review 88, No. 6 (September 2003): 1549–671. Tiffany Jones Miller, “Transforming Formal Freedom into Effective Freedom: John Dewey, the New Deal, and the Great Society,” in Ronald J. Pestritto and Thomas G. West, (eds), Modern America and the Legacy of the Founding (Lanham, Md.: Lexington Books, 2006), pp. 169–206. Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (New York: Cambridge University Press, 2004). Ronald J. Pestritto, Woodrow Wilson and the Roots of Modern Liberalism (Lanham, Md.: Rowman & Littlefield, 2005). 44  Two leading Progressive thinkers who explicitly rejected the founding principles are Herbert Croly, The Promise of American Life (1909; repr. New York: Dutton, 1963), pp. xix, 33, 35–6, 181–2; and John Dewey, Liberalism and Social Action (1935; repr. New York: Perigree, Putnam’s, 1980), pp. 48, 54; see also Dewey, “The Future of Liberalism” (1935), in Howard Zinn, ed., New Deal Thought (Indianapolis: Bobbs-Merrill, 1966), p. 31 (the Founders’ belief in eternal truths is “evil”). 45  Philip Hamburger, “Liberality,” in Texas Law Review 78 (May 2000): 1215–85. 46  Michael P. Zuckert, Launching Liberalism: On Lockean Political Philosophy (Lawrence: University Press of Kansas, 2002), p. 226. 47  Michael P. Zuckert, The Natural Rights Republic (South Bend: University of Notre Dame Press, 1996), p. 95. 48  Zuckert, Natural Rights Republic, p. 95. 49  Carroll, “To John Fenno of the Gazette of the United States,” June 10, 1789, in The John Carroll Papers, ed. Thomas O. Hanley (Notre Dame: University of Notre Dame Press, 1976), 1:365. For the Protestant view of republican government, see Charles S. Hyneman and Donald S. Lutz, (eds), American Political Writing during the Founding Era, 1760–1805 (Indianapolis: Liberty Press, 1983); and Ellis Sandoz, ed., Political Sermons of the America Founding Era: 1730–1805 (Indianapolis: Liberty Fund, 1990). 50  Thomas G. West, “The Transformation of Protestant Theology as a Condition of the American Revolution,” in Thomas S. Engeman and Michael P. Zuckert, (eds), Protestantism and the American Founding (South Bend: University of Notre Dame Press, 2004), pp. 187–223. 51  New York Constitution, 1777, Art. 35 and Preamble.

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52  Alexander Hamilton to Marquis de Lafayette, Jan. 6, 1799, in The Papers of Alexander Hamilton, ed. Harold C. Syrett (New York: Columbia University Press, 1961–1979), 22:404. Hamilton to Timothy Pickering, Feb. 21, 1799, in ibid., 492. Hamilton’s point is explained by Leo Strauss, What Is Political Philosophy? And Other Studies (Glencoe, Ill.: Free Press, 1959), p. 87: The philosopher in his study, but not the statesman, is “free to choose the most favorable conditions that are possible [for the best political order] – ethnic, climatic, economic, and other. . . : a given community may be so rude or so depraved that only a very inferior type of order can ‘keep it going.’” 53  West, “Transformation of Protestant Theology,” pp. 204–17. 54  John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986), pp. 90, 92. 55  Adams, Diary, 1773, Works of John Adams, ed. Charles Francis Adams (Boston: Little, Brown, 1854), 2:312–13. 56  Richard Bland, An Inquiry into the Rights of the British Colonies (1766), in Hyneman and Lutz, American Political Writings, 1:69–70. 57   Jefferson, A Summary View of the Rights of British America (1774), in Writings, ed. Peterson, p. 115.

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5

City as Teacher Carroll William Westfall

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eople build a city to attain their purposes. It is the most complex thing they build, and its physical character is the most important visible product of their collective enterprise. City builders in the United States are heirs of more than two millennia of experience in building cities that do what only cities can do, which is to provide a setting within which we may seek to achieve the fullness of our nature. To do its work the city must exercise its authority over those under its jurisdiction. This work occurs in the political life, that is, in the art of living together. The basis of that authority is always said to transcend mere human foundations, which makes the city a place where the sacred and the profane intersect. The city presents the clearest possible representation of the relationship between the divine and the human, a representation that its civil order converts into political actions and is made visible in its buildings and urban order. In this way a city becomes a teacher. Like any good teacher, it knows that it cannot force a person to heed its lessons. Instead, it must persuade people to do the good, and it must condemn and punish the authors of acts that would harm the good. The instruments of this instruction and protection are the institutions of the political life and the architectural and urban orders that serve and represent them. The elements of the civil, the architectural, and the urban orders accumulate over time, which makes the city a palimpsest of old and new, of the traditional and the innovative. In city building, institutions are in command. They are the authoritative components of the civil order and the principal builders of the buildings and other physical elements that produce the architectural and urban orders. These physical things serve

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the functional needs of the institutions, and more importantly, they do two other tasks: they serve the institutions’ larger purposes and, equally important, they display the basis of the institutions’ legitimacy and promise of longevity. The physical elements composing the city often have a greater longevity than the particular institutions that built them. New, reorganized, or expanded institutions therefore often act like hermit crabs and take over existing facilities. This is not only expeditious, it is also significant, because it allows the new inhabitant to claim the status of the former resident. Institutions also build anew, and the forms of new construction will inevitably mix old and new forms. The old forms stress the continuity that links them with the past, and the new ones present the innovation that is necessary to adapt to new circumstances. The mixing of old and new forms exhibits what I call pious skepticism or the “yes, but” principle: Yes, that old form is good and works well, but it needs this revision. In the present day, those who build prominent structures in the city prefer completely shunning tradition. Their works illustrate a general acceptance of the false premise that architecture is first of all a fine art like painting in which the architect-artist defines the esthetic vision he is serving and his success is judged by a coterie of the avant-garde. This current practice runs counter to the fundamental character of the American city. Its foundation, like that of its constitutional order, is a descendant of the tradition that reaches back to the first millennium before Christ. That tradition synthesizes five elements, each of which illustrates the yes-but principle, and none of which rejects tradition. These are, 1) a vivid political life; 2) a civil order composed of institutions within which citizens conduct their political life; 3) the architecture composed of the buildings that serve and represent those institutions; 4) the organization of these buildings into an urban setting; and 5) a shared understanding of the nature of man. In the classic American city these five elements – the political, civil, architectural, urban, and human – are in dynamic reciprocal interaction. Four were fully mature in pagan antiquity, but the fifth, the separation of the urban from the architectural to constitute two distinct elements, was an innovation that goes back only to the Renaissance, one that the American Founders would have called a modern discovery. To appreciate the role that the American city can play as teacher we, like the Founders, need to be familiar with the experience of our predecessors who had the same goals we have but who pursued them in quite different circumstances. With that knowledge we will know how to build cities that are persuasive teachers. ***

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The origins of the American city lie in the Greco-Roman tradition that took its rise in seventh-century B.C. Greece. The reflections that Plato and Aristotle produced from the first few centuries of that tradition remain instructive. In the Republic Plato observed that the city is man writ large and that the best city is the one which, like man, has established a proportionate relationship between the body, the intellect, and the soul that imitates the order of nature. This city addresses the need for justice, a need quite superior to the desire for abundance and pleasure that Glaucon seeks in the Republic’s memorable portrayal of the city of pigs. (369–373) Aristotle observed in the Politics that the city is a natural entity formed from families that collect themselves into tribes and then into the city which provides the means by which individuals may live the good life. (1252a–1253a) The Greek polis was vivid and alive in the actions of the citizens. This polis had an identity with a place only insofar as it held the graves of ancestors and temples for the gods they honored and who received the best works of architecture. The architectural qualities of the places where they conducted the affairs of the polis were treated with relative indifference. The political life dominated the citizens’ concerns, and finding its best form in ever-changing circumstances was their constant preoccupation, which led Leo Strauss to observe about the best possible regime on earth, “It is of its essence to exist in speech as distinguished from deed.”1 The affairs of the polis were too transitory for the political institutions to be given buildings with much architectural refinement until the always-tumultuous life of the democracies fell unto the torpor of Hellenistic tyrannies. When building in the political center below the temple precinct the builders borrowed from the way buildings honoring the gods were built to produce impressive accommodations for their political and market activities. The Romans learned a great deal about architecture from these buildings. The Romans also went farther. To serve their political and religious life they vastly enlarged the range of buildings, they invented an urbanism to hold them, and they established a theoretical understanding of the principles of architecture that would be as enduring as the principles of law that they formulated. Our way of discussing cities comes from both of those ancient cultures. The Greek word polis, or city, gave us the word politics to refer to the ongoing speech and actions of citizens. The Roman’s name for the legal order of the civil and religious institutions guiding that political life was civitas which became our word city, and our word urban refers to the delimited, physical place or urbs where that legal order resided. At its best the political life, the civil order, and the urban order were combined with one another in a proportionate relationship that could serve the ends and aspirations of men. This combination constituted the city that would be the schoolhouse wherein

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individuals receive instruction and those in authority would teach others about the civil virtues that define the individual’s nobility, a nobility achieved through the fullest developments of his unique gifts and of the humanity he shares with others. With Plato the Romans could say that the citizens and the city are in a reciprocal relationship with one another, each forming the other. Athens and Rome teach that the city does its work through the political life of its citizens. That life is organized within the institutions of its civil order, and these in turn use buildings and the other elements in its urban order to facilitate and represent their purposes. The civil and the urban orders form intersecting, reciprocal relationships and share four characteristics. First, both are arranged hieratically: some things are more important than other things in serving the end or good purpose of the city. Second, the civil order is coterminous with the urban order: the laws of one place (the jus civile) are not necessarily the same as those in another, and neither is the urban and architectural form the same in every place. Third, while in every city both the laws that give body to the civil order and the buildings and other elements that constitute the urban order differ, they are nonetheless based on the same principle. And fourth, that principle is the imitation of the universal cosmic proportion and order of nature that architecture seeks to make visible and that is the jus naturale or natural-law from which the jus civile is derived. A well-ordered city wherein people of goodwill seek the fulfillment of their nature teaches that how a person is to act depends upon where he is, which accounts for changing circumstances, but that the judgment about those actions depends ultimately on universal standards that imitate the cosmic order and therefore apply everywhere to everyone. There is another kind of city, one with lesser ends. It is the resort where Glaucon would be happy. It offers pleasure but not happiness. It falls short of being the good city that Plato and Aristotle and anyone else who understands that the purpose of the city is to assist each individual to pursue the happiness that comes in fulfilling his nature urges us to build. In that city the civil, architectural, and urban orders work in coordination with one another to facilitate that quest. This city claims a legitimate right to use coercion to defend its actions. Socrates challenged that legitimacy, and he paid the price that Christians would later pay when they too failed to acknowledge the role the pagan gods played in the city. Eventually the Christian Church in Rome would claim that right as it transformed the understanding of man’s nature and of the political, civil, architectural, and urban orders that nourish it. Jerusalem now transformed Rome by empowering the will at the expense of the law’s hegemony. Pagan Roman law had been the vehicle through which an individual fulfilled his nature. It prescribed various duties, and the way the

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individual fulfilled those duties defined his character. The Judeo-Christian tradition also used law to prescribe duties and govern the will, but it also fulfilled the law through Grace that offered redemption for a misused will. Mankind’s first experience with the will, with the freedom to make choices about his destiny, had begun poorly in the Garden that God had prepared as the place where man and God could dwell together. Things only got worse, when Cain killed his brother and then built the first city as a place where he could hide from God.2 He named that city Enoch after his son, believing that his descendants in the city would provide a surrogate for the eternal life that God offered in the Garden and that his parents had forfeited by the misuse of their will. The city of Enoch lost the capacity to shelter man from God when during the Crucifixion the Temple’s curtain was rent. Now the place where God and man meet is no longer confined to the Temple in Jerusalem. Now the light and the Word (logos) that has been since the beginning became directly accessible to all who believe. The earthly city will end its existence and the Garden will be restored at the end of time in the eternal Heavenly City. Rome and Jerusalem would merge and produce a new relationship between law, which is vested in the legitimacy of institutions, the will, an attribute of individual autonomy, and Grace, whose earthly care was entrusted to the Church. Because men are not angels they accept the injunction of the snake in the Garden to willfully disobey the law, but the Grace that the Church claimed as the legacy of the Crucifixion and Resurrection fulfilled the law and quashed the snake for those who sought to direct their will toward God’s love. In the early fifth century Saint Augustine articulated a new understanding of the city founded on this doctrine. In the City of God he explained how to mesh a civil order that depends on the authority of the law with a religious order that accounts for man’s willful nature and makes Grace available to the faithful.3 He explained that mortal men are born into the civil order of the city of man. Its best form was exemplified by the Roman Republic where lawful authority sought concord and peace. In the city of man, men are free to use their will to do what is natural to men, which is to join with others in an association or community to acquire what they love in common. The City of God is such an association of people united by a common love. It is superior to all others (for example a band of pirates united by a love of goods), because the object of that common love is the good, or charity, or God. Men may love both cities, the city of man although not for itself or as a resort but when it provides the peace and concord that supports the City of God, and the City of God, or the Church, as the earthly presence of God’s love.

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Since its formulation in the fifth century this template for the two cities has accommodated many variations in the relationship between the political, civil, architectural and urban, and human. In the fifteenth century it achieved the form we find useful when the architectural and the urban were distinguished from one another. This distinction gave new prominence to the visible which achieved parity with the verbal. We see it in an illustration of a Florentine manuscript of Augustine’s City of God that shows Augustine at his desk envisaging the City of God that takes the unmistakable form of the city of Rome.4 Hovering above it enclosed in a circle is a more regular version of the same image. It is the City of God, the model that the city of man is to imitate. Through man’s effort the good in God’s creation could appear in the material of the world He had created. Men could use their own eyes to seek out the good in the material, physical world in which they live. It became a world that displayed God’s handiwork and the artifice of men in buildings, gardens, cities, and rural districts that could reveal what he loves, and it could teach men about what that love offered. The city could become a visible syllabus of the relationship between the authority it claimed and the individual’s position relative to that authority. An image from a fifteenth-century Italian treatise on architecture by Francesco di Giorgio Martini illustrates the point. The walls of a city enclose the form of a man with a market over his belly, a castle over his head, and a church over his heart. This is the good city where the appetites or passions, the intellect, and the heart are in a proper proportionate relationship to one another.5 A proportionate relationship is most commonly made visible in geometry, an emblem of human reason’s connection with the divine order. In the fifteenth century geometric proportionality became the basis for architecture and urbanism. The innovation that made this possible was a system of perspective based on geometry. Invented around 1410 by the Florentine architect Filippo Brunelleschi, who would soon take on the huge task of putting a dome on the cathedral, it imposed a geometric construction on what fell under the eye of an observer to make visible its proportionate, harmonic order.6 The perspectival construction’s viewpoint corresponded to the observer’s position relative to what the construction depicted. In a painting, the thing being represented, say, a Madonna and Child or a Last Supper, was depicted with a verisimilitude to what a person encountered in the world, and it appeared in an extension of the space the observer occupied. This produced a direct confrontation between the observer in his world and the significance of the painting’s content in his life. It quickly came into use by architects, Brunelleschi being the first among them. It imposed on the material of a building the order and proportionality that was derived

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from those qualities as they existed in the cosmos that God had created. The building thereby became a man-made counterpart to the cosmos God had created, a material microcosmos. The building and its setting could now play the same role for an observer that a perspective-based depiction of a Madonna and Child or Last Supper had. This allowed urbanism to be treated as an orderly spatial setting for buildings and emerge from its earlier role of simply being the void between buildings.7 Although they now shared a common method of composition, a perspectivally organized urban order and the architectural order could be separated from one another. Together, as building and setting, and separately, as building or urban place, they had the capacity to serve the civil order and thereby expanded from four to five the elements that constitute the city. Perspective offered the potential to organize the physical realm of the city of man into a facsimile of the City of God. The physical domain could be made as a powerful implement serving the city as teacher. Brunelleschi clearly understood this when he displayed the first two panels painted in perspective (now lost) to a fascinated audience in Florence. They showed the buildings that served and represented the city’s most important institutions within their familiar settings and from a particular position that the observers knew well and occupied themselves in their daily rounds. One was the Baptistery where through baptism the individual became a member of the Church seen from the doors opening into the cathedral. The other was the city hall, the seat of authority for the city of man which he entered by virtue of his birth, seen from the entrance to the piazza fronting it. A remarkable image in a treatise on architecture from a half century later provides an insightful use of perspective to show proportion and its ally geometry at work in city building.8 Its author was the Florentine Antonio Averlino called Filarete who produced it for the Sforza Duke of Milan in the 1460s. A city to be named Sforzinda is founded by imposing a geometric figure on a rustic landscape. The outline of two squares set at 45 degrees to one another will become the walls and the circle circumscribing them will be the moat. The landscape, the unruly realm of man in a pre-civil state, is presented in a perspective view as it would appear to sight, but the foundations of the city that will civilize the land are laid on it as pure geometric forms unaltered by perspective. Intellect imposes order on rustic wilderness. The city’s geometric foundation represents the divine sanction for the duke’s authority, and the hieratic organization of Sforzinda’s buildings that culminate in the cathedral represents his role in producing the peace that allows the City of God to flourish in the city of man he rules. A view of Florence from roughly the same time as Filarete’s treatise is typical of others that use earlier conventions for representing cities.9 (See

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Figure 1.) It uses simple pictographs to document the presence of the important institutional buildings a city was required to have. Walls separate the urban site from its dependent rural countryside. A cathedral and a few churches stand for the religious institutions, and a city hall and a scattering of other secular buildings cover the temporal realm. Where, we might ask, do the city’s residents live, and where do they pursue their various enterprises? The members of the governing hierarchy are everything; the lesser residents are a nullity. A third image from the next generation brings us into a visual world we are familiar with. (See Figure 2.) It even includes the anonymous artist at work: a person made this image while sitting here. The city is full. The only blank parts are the actual streets and piazzas in the city or the fields in the rural countryside. The city is filled with the houses and workshops of the humblest residents.

Figure 1 Piero del Massaio, “Florence,” 1472 (Ptolemy, Cosmographia, Biblioteca Vaticana, Urb. Lat. 277 fol. 130v)

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Figure 2  Lucantonio degli Uberti, attrib., View of Florence with a Chain, c.1510, (Berlin, Staatliche Museen Preußischer Kulturbesitz, Kupferstichkabinett)

Standing out among them are the churches and palaces where authority over them resides. The predominant buildings culminate in the cathedral and the city hall, the only two buildings whose upper elements project beyond the walls, which makes it clear that that rural district is an integral if subordinate part of the urban realm. Florence was at this time by no means a republic of equal citizens, but its constitution was the counterpart to this view, a place in which all members of the city claimed a role in how they lived their lives. A recent interpretation enriches the interpretation by connecting it with Florence’s longstanding tradition of seeing itself as the New Jerusalem and suggests that it “can plausibly be read as protesting the captivity of the city at the hand of the republican usurpers [inspired by Savonarola] and lamenting the passage of the ‘springtime that Lorenzo de’Medici had brought into being.’”10 These innovative images display the topics then being explored in political theory.11 Sforzinda stands for princely government based on a tradition, an interpretation of revelation, and a belief that vests ultimate authority in a single head. The Florence that the artist drew was reassessing that relationship of man to authority and of the nature of man himself, and its conclusions would eventually lead to what Lincoln at Gettysburg identified as a proposition, “that all men are created equal,” which leads inexorably to seeking justice through a “government of the people, by the people, for the people.” But many a mile had to be traveled before we got there. In the interval, the visible city became a potent teacher of where authority resided, but with two different beliefs about the just form and source of that authority. Visits to two new world cities will illustrate these two very different interpretations of how to construe a just proportionate relationship between the political, civil, architectural, urban, and human qualities of cities.

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One city is Antigua Guatemala (officially Ciudad de Santiago de los Caballeros de Goathemalan) founded in 1543 to serve as the capital of the central district of New Spain.12 It grew over time but a major earthquake in 1773 finally persuaded its residents to relocate the capital, and Antigua declined into a market town. It survives largely intact, although the vaults of most of its churches and the second story on most of its other buildings have never been rebuilt, and a surge of gentrification is now leaving its mark. A regular geometric grid imposed order on what was considered wilderness. (See Figure 3.) No walls were needed because there was no legal distinction between an urban and a rural jurisdiction. Within the grid were laid the streets and a central plaza that separated these public areas from private holdings.

Figure 3 Plan and original nucleus, Antigua, Guatemala (María Fernanda Sánchez Herrera and Pedro Pablo Godoy Barrios, The University: The Renaissance of Antigua Guatemala, MArch thesis, University of Notre Dame, 2000. Courtesy Architecture Library, University of Notre Dame.)

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The buildings erected within this grid clearly portray an orderly arrangement of the three authorities. Chief among those governing the heart was the cathedral that dominates the central plaza’s east side while two religious houses that included parish churches were located farther away and a university for training religious was placed facing the cathedral’s flank. The head occupied the government building taking up the whole block on the south side of the plaza. Directly to the east is a second university, this one devoted to the law. The body was served by the central market square and the commercial structures along the west side while the city hall taking up part of the plaza’s north side deals with local affairs. The Captain General did not come from the people. He and his staff resided in their own precinct as did the bishop, the clergy, and the religious. The private residences are similarly set apart and isolated from the public realm and hieratically arranged internally in ranks running from women and children down to servants living under the patriarch’s authority. The buildings we see in Antigua today are primarily the product of the 200 years before 1773, and they were produced within the same architectural formal tradition which, as is always the case in carefully done traditional architecture, makes their hierarchical differences clear. Throughout the city, the more important the building devoted to a certain religious or civil purpose the closer it is to the center and the greater the distinction from other buildings, with the more important buildings given setbacks from the street, greater size, richer ornamentation, and stricter adherence to canonic norms. This architectural and urban form unambiguously and unmistakably represents a single chain of authority stretching from God and His law through the King who is God’s officer and the King’s Viceroy, on down to the family’s patriarch ending at those who supply the necessities of life in the humble shops and the back rooms of the residences. Each link reveals an officer exercising indisputable authority in an eternal hieratic order: bishop, governor, university personnel, families, mere tradesmen, and family servants and slaves tightly bound into a single authoritative order based on an unchanging interpretation of the world as an unchanging order. Here is what Antigua teaches the person who seeks to fulfill his nature: obey the law that issues from these authoritative institutions of Church and state. The other city is Williamsburg in colonial Virginia. Virginia, England’s first colony, dated from 1607 when it was settled by Englishmen who wanted the same thing their Spanish predecessors did: wealth, status, and the spread of the Christian religion. In Jamestown the settlers quickly learned that wealth could not be picked up off the ground or stolen from the native inhabitants. And they learned how little they knew about building a city and exercising authority within it. They finally accepted the fact that their future lay in agriculture and

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that the private company that governed the colony could not provide a basis for a legitimate government. In 1624 the colony was rechartered with a civil and religious order that recapitulated the mother country’s. The people were given voice in the equivalent of the House of Commons, which was balanced by an upper house composed of landed property holders of high status appointed by the Crown, who also appointed the Governor, his surrogate. The crown tried to have the colonists build towns that would facilitate its administrative and tax-collecting activities, but the colonists preferred distributing themselves and their civil institutions across the landscape. (See Figure 4.) The result was a rural landscape extracted from the wilderness and hosting civil uses distributed without a preplanned urban configuration but responding to the convenience of the moment – here a church, there a small farmstead, here a large planter’s house with its village-like outbuildings, there a mill and a tavern, and over there a hamlet with a wharf and a tobacco warehouse. By 1699 the colonists had pushed the wilderness westward. Decrepit Jamestown proved inadequate as a capital, and Governor Francis Nicholson founded Williamsburg as a new capital on a more salubrious site closer to the center of settlement. The result is one of the finest inventions in the history of urbanism.13 (See Figure 5.)

Figure 4  Tidewater landscape, Virginia, mid eighteenth century (From The Transformation of Virginia, 1740–1790 by Rhys Isaac. Copyright © 1982 by the University of North Carolina Press. Published for the Omohundro Institute of Early American History and Culture. Used by permission of the publisher.)

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Figure 5  Frenchman’s Map, Williamsburg, Virginia, 1784 (Special Collections Research Center, Swem Library, College of William and Mary)

In Williamsburg the elements that tradition, both old and new, made available were radically reconfigured so that the colony’s civil order would be well served and clearly represented. Most notable here, and unique to North American urbanism, are two elements. 1: The civil order uses a clear geometry to convert wilderness to civil uses while retaining a vivid reciprocity between the built-on land and the open land. Here, as in other American cities, the geometric order synthesizes two distinct civil orders, the municipal or county one and another for an authority with a broader reach, in this case that of the entire Virginia colony. 2: The site of the family residence is the basic unit of the urban order, and the residence’s architectural form is an important element within the hieratic array of buildings serving and representing the purposes of the civil order’s institutions. The residence and the other buildings inserted into that urban structure reinforce the legibility of the civil order while retaining reciprocity with the landscape. As in Antigua a geometric grid determines the configuration of streets that organize the private landholdings of the residents. The most important are residences of the gentry who came to Williamsburg from their plantations to attend periodic sessions of the colony’s governmental institutions and to enjoy the pleasures of civil society. The city’s residences face the street and are open to it as if the householders are ready at any time to engage with others in the civil life. The law required that fences surround the rest of the

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private property with its gardens, animal pens, and other outbuildings. These make visible and enhance the security of ownership. Commerce is served by residences strung out along the town’s spine and periodically in the central square that also serves as a parade ground for the militia and, most importantly, as the setting for the courthouse. This open square is the center of the lesser, local geometry, which reaches out into the landscape unbounded by walls or even a clear edge in the town’s grid. Superior to that local geometry is another geometry that belongs to the colony as a whole. Its dominant element is the axis of the commercial spine marked at each end by places where reason ought to prevail, the College of William and Mary at one end and the Capitol at the other. Midway along the spine stands the parish church (the established Church in colonial Virginia had no bishop and therefore no cathedral). At that point the crossaxis appears, one end running through a swale into the countryside, the other leading up a broad greensward to the Governor’s Mansion. These four buildings housing the most important institutions of the colony, namely, the college, the capitol, the church, and the Governor’s Mansion, are surrounded by low enclosures, as are the private lots, but these are brick and not wood. Here is the urtext for American urbanism. Geometry organizes a civil order on the land which contains separate and overlapping authorities. That civil order is diffused across rural outlands, often with no distinction between urban and rural. Landscape and city are constantly intermixed. Residences occupy positions subordinate to other institutional buildings, but like them and like the civil order itself they occupy an identifiable piece of land which is privately held. Religious and secular institutions are held at arm’s-length from one another. These qualities permeate the towns and cities of the British colonies in North America. They took different configurations in different regions, in the tight New England towns and cities that proliferated across the northern longitudes, in middle colonies and in proprietary colonies, and even in the traditions derived from Spanish and French foundations. But there came a time in the course of human events when the colonists agreed that circumstances impelled them to exercise their natural right to sever their ties with a distant, unresponsive, and tyrannical authority and institute a civil authority of their own that could “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” These rebels declared “the causes,” fought a war, and instituted a new government that vested authority in “We the People” who were to govern and enjoy the protection of their inalienable rights of life, liberty, and the pursuit of happiness with equality stated as an

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aspiration that even now is yet to be fully achieved. Reason would guide deliberations, and tradition and religious beliefs would be valued as compasses for individuals but not as helmsmen for the civil order. This was to be a government of majority rule with the protection of minority rights.14 In this city built on secular foundations Enoch could hide from God and others could find a New Jerusalem in it. The endowments of “Nature or Nature’s God” furnished the tools men would use for governing the city of man while the City of God could exist within whatever voluntary associations men wished to form. Here was a “Novus ordo seclorum” built out of elements from the past revised in light of new discoveries. The nature that provided the foundations for this new order was traditional nature, not the now dominant nature of modern empiricism or of Romanticism. This is a crucial distinction. These new formulations of nature set the natural apart from man. Empirical nature in itself is agnostic and carries no moral content, and so it need not concern us. Romantic nature, on the other hand, has put sentiment in the place that reason used to occupy. Romantic man is natural, he is free, and his instincts are pure. Romanticism provides an antidote to culture that is artificial, oppressive, and stultifyingly reasonable. Romantic nature offers refreshment to the spirit that has been buffeted by the inhumane, unnatural city. Romantic nature’s best physical embodiments range from the invigorating wilderness to the soothing pastoral, and as those become increasingly inaccessible they are replicated in urban parks. Central Park makes ruthless New York City habitable. Non-romantic nature, nature as it had traditionally been understood, is a very different thing. This nature serves man who became a tiller of the land after he was expelled from the Garden. This man is a social, political animal. He uses artifice based on his intelligence and knowledge to convert wild nature to useful culture. He uses artifice to convert wilderness into a rural agricultural landscape that sustains his body, an artificial garden that nourishes the soul, and an urban place where the civil order resides and the political life is pursued. In the world that preceded the New Eden that was founded in North America, walls separated these four kinds of landscape from one another. A city’s walls divided it from its rural surroundings. Walls enclosing gardens made them private precincts. And wilderness was distant, beyond the pale of civilization. These walls began to erode in the seventeenth century as divine-right monarchs found that manipulating the landscape into a geometric order with their palace, villa, or chateau at the apex of a controlling geometry provided a powerful representation of the reach of their authority. By the time of the American Founding these four kinds of landscape had come to be understood as interwoven, a suggestion found but not consummated at Williamsburg.

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No American understood this better than Thomas Jefferson. Toward the end of his long life he provided the best interweaving of landscapes to serve the civil order of what he called the “academical village,” the University of Virginia. (See Figure 6.) It is set on the land with a geometric clarity like that of Filarete’s image of Sforzinda. In Jefferson’s Piedmont the wilderness was in the distance and the rural surroundings were beyond the image’s boundaries faced by the student rooms and their ancillary, utilitarian structures. Moving toward the center are the enclosed gardens, some for fruits and vegetables, others for flowers, and yet others for botanical study. Finally, in the heart, the grounds’ central core standing atop the gentle ridge’s spine opens to a broad, long greensward lined with orderly rows of trees and fronted by the three levels of an academic hierarchy, student rooms, professors’ residences and their classrooms, and the crowning building with classrooms, scientific laboratories, and the library. Here is the visible distillation of all of the entities in the American order – man, wilderness, rural, garden, urban, and civil – all

Figure 6 Thomas Jefferson, University of Virginia, Charlottesville, Virginia, 1822–26, Maverick engraving from 1825

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serving in different ways the interaction of man and nature, each taking its proportionate place within the order of Nature and of Nature’s God. Here is the American civil and urban landscape that is as different from all others as the nation’s civil order is, as different as Antigua is from Williamsburg, a landscape in which the individual may pursue his happiness which is the fulfillment of his nature. Jefferson, the farmer on the frontier, understood better than anyone else what the land could furnish to the new nation. He, like the other Founders, understood that the vast public domain was both wilderness and the new nation’s primary economic asset. Applying artifice to its cultivation would serve the ends of the new nation which they knew was destined to expand beyond the coastal fringe. After completing his long service to the nation he, in 1816, articulated the theory that justified the practice he and others had put into place to convert wilderness to the unique American civil landscape: What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body … The elementary republics of the wards, the county republics, the State republics and the republic of the Union, would form a gradation of authorities, standing each on the basis of law, holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs, not merely at an election one day in the year, but every day; when there shall not be a man in the state who will not be a member of some one of its councils, great or small, he will let the heart be torn out of his body, sooner than his power be wrested from him by a Caesar or a Bonaparte.15 Earlier that year he had written, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”16 Thirty years earlier he had proposed a method to combine the civil orders that were settling on the land with the need for education and produced his proposal for a system of public schooling running through a graduated system from elementary schools supported by wards within each county to a state-wide university for the natural aristocracy.17 Even earlier, in 1776, Jefferson had made a proposal arising from his belief that only tenure in land would guarantee a person’s freedom from dependence on government and allow him to be a disinterested critic of government. His proposed draft for the constitution being written for Virginia

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required that an enfranchised voter be in possession of 25 acres of land, and if he lacked it and had never had land he would he given 50 acres.18 This idea took mature form in the Northwest Ordinances of 1785 and 1787.19 The wilderness north and west of the Ohio would be laid out in a great grid of one-mile-square sections. After settlers had taken possession of the land they would form the necessary political entities with only two restrictions, both in the interest of liberty: slavery was forbidden, and so was a monarchic constitution for any state that would be formed. The settlers would establish a school board that could claim one section of land a mile square in each six-bysix mile township, and another could be claimed as a county seat. The people on the land made the government they wanted. As the civil order matured it produced a wide range of interlocking political entities of graduated size, none independent of the others, with each serving the limited tasks given it, ranging from school boards and water districts to counties, towns, cities, and states. In these polities men could live in liberty on the land. In 1830, rural Fluvanna County, Virginia, built a courthouse after the model of Jefferson’s wonderful adaptation of an ancient Roman temple (he thought it was a curia) for the nation’s first new state capitol, the one he built in Richmond, Virginia. Its lintel sums up the American creed: “The MAXIM held sacred by every free people: OBEY THE LAWS.” Those laws would be made by the people over whom the U.S. Constitution exercised ultimate authority. It specifies what that authority may not do, and it does not tell the lesser civil orders what they must do. In this scheme, what happened to coercion, the prerogative of authority? It had been exercised by those who claimed to know what the individual had to do to fulfill his nature. There is nothing here like the Roman laws that prescribed how a person was to perfect his character, and no alliance of Church and state that supervised a person’s care for his soul. Instead, the individual is left to assume full responsibility for his moral conduct. The genius of the American civil order is in its articulation of a series of political entities and access to voluntary associations that can assist him as he seeks to know himself and to fulfill his nature. And the genius of the American urban order is that it makes this visible as it cultivates the landscape to provide the means of sustaining and assisting him in that endeavor. Three examples of American cities will illustrate the flexibility and utility of this uniquely American urban order. First, Washington, D.C. Its roots are in Williamsburg, which President George Washington and Secretary of State Jefferson knew intimately. Jefferson offered a sketch for the new capital that clumsily adapted Williamsburg to the site on the Potomac. (See Figure 7.) Williamsburg and that sketch certainly appealed to the third person, Pierre Charles L’Enfant, an architect and artist who had grown up at Versailles. At Versailles the king’s authority over nature

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Figure 7 Thomas Jefferson sketch plan for District of Columbia, 1791 (Thomas Jefferson Papers, Manuscript Division, Library of Congress)

and man was made visible in the geometrically structured tree-lined allées running through vast planted gardens laid on one side of the chateau and extending as tree-lined roadways across France while their counterpart in streets and roadways imposed order on the chateau’s urban side. L’Enfant appropriated the king’s scale to blow Williamsburg up to the size appropriate for a nation that had large ambitions, and he transformed French royal geometry to represent not the divine authority of the French king but the authority of “We the People.”20 (See Figure 8.) The geometry that used artifice to extract the civil order from the wilderness and an existing rural landscape intermixes service to the town and to the nation. The town is gridded, but the larger national geometry follows a different pattern as it forces the town’s grid into irregularity. This illustrates a point Alexander Hamilton made in Federalist #1, that “the vigor of government is essential to the security of liberty.” The geometry binding together the nation’s individual states and the national institutions appears in broad, straight, tree-lined avenues. The several states composing the union achieve prominence in four ways. The avenues connect with existing or future roads running from the capital into the nation. Their intersections

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Figure 8 Pierre Charles L’Enfant, Plan of Washington, 1791 (Library of Congress, Geography and Map Division)

are furnished with squares, each of which a state was to ornament. They were named for the various states, with those in the northern part of the city named for northern states and so on toward the south. And the more important the avenue in the urban plan, the more important was the name it bears in the founding of the nation. The avenues also portray the institutions of the civil order. The authority of “We the People” was vested in the presidency and the legislative houses which are given the two most prominent buildings in prominent but distant places within the city. The president’s mansion looks down a greensward and eventually farther on, down the Potomac seaway to the old nations in Europe. Up Pennsylvania Avenue is a hill that the legislature crowns, its dome spreading over the Great Hall of the People and presiding over a long open common ground whose central axis intersects the axis projecting from the President’s House at the site of a monument destined to honor General, and later President, Washington. Notably, Williamsburg’s college and church are absent. Education was a state, not a federal matter, and religion had no formal place in the civil order.

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Also missing is the important third arm of government, the Supreme Court. It did not achieve its pivotal role until 1803, and it would not emerge from its home in the Capitol’s basement until the 1930s. Washington presented the paradigmatic model for combining multiple authorities into the American urban order. Mississippi and Illinois will provide other solutions. Mississippi decided to honor the victorious general of the Battle of New Orleans with a capital city platted as “a town upon the Checkerboard plan, as suggested [earlier for another place] by President Jefferson.”21 Jackson Mississippi arises from the landscape within the unbounded grid that converts wilderness to an urban setting. (See Figure 9.) These are intermixed with open garden blocks and residential blocks alternating like black and white squares on a checkerboard. Where the flat land meets the bluffs dropping to the Pearl River is the “Commons” holding the Capitol at the head of “Capitol Street.” A double block terminating the Common’s crescent is labeled College Green and faces “College Street.” The other double block is labeled Court Green. The courthouse’s role in local affairs is made clear by labeling the street it fronts “Commerce Street.” This plan soon fell victim to the urge to realize the maximum profit from each ownership parcel, and since World War II the surviving remnant has been emasculated, like cities all across America, by uncivil urban renewal and the force of antiurban suburban expansion. Of this way of building and rebuilding

Figure 9 P. A. Van Dorn, Original Plan of Jackson, Mississippi, 1822. (Courtesy of Mississippi Department of Archives and History)

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cities this can be said: those who will use the place build the place, and they build it to assist them in pursuing the ends they had as individuals and as a political community. And this too can be said: the larger the city, the more diverse are those ends. There is nothing inherent in the constitutional order of the nation to prevent New York or Chicago from possessing the institutions that facilitate the aspirations of their members to fulfill their natures. The Chicago plan that was drafted when the City Beautiful Movement was in league with the campaign to reform city politics that continues to inspire Chicagoans and others recently enjoyed a centennial celebration.22 And finally, institutions build buildings within an urban order that serves and represents their purposes. If they fail to do so, it is for lack of will, not lack of license or means. With that said, we turn to the opposite extreme, Mount Pulaski in Illinois, the seat of rural Logan County that served justice and county affairs between 1848 and 1853. (See Figure 10.) Its courthouse sits on a slight rise in otherwise flat land in the center of an open grassy square, easily accessible to all but set apart in its own open landscape. Facing it are some commercial and residential structures where the people who make that government and are governed by it are found. The courthouse is characteristic of many throughout the country, a simple hall inside a box that is the final abbreviation of Jefferson’s temple-Capitol in Richmond. The buildings that fill in the urban order in traditional American cities inhabit a tradition that is both clearly indebted to the old and refreshed by

Figure 10  Logan County Court House, Mount Pulaski, Illinois, 1848 (photo: author)

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Figure 11 Thomas U. Walter and others, United States Capitol, dome, 1855ff (Wiki commons: Raul654)

the new, exactly as the civil order is. The temple that became a capitol and a courthouse is one example. The United States Capitol illustrates another. (See Figure 11.) Consider its most prominent element, the present dome that dates from the expansion that was begun in 1851 and completed just after the Civil War.23 The present building enlarges and transforms the building constructed during the Republic’s first decades. That original dome went back to the finest building to survive from ancient Rome, the Pantheon. Bramante used it for his projected St. Peter’s Basilica begun in 1506. And Jefferson used it for the Library at his University of Virginia where it connected antiquity with the present day to educate Virginians to be leaders in the future. When the Capitol was enlarged it needed a larger dome and found it in the dome Michelangelo used to complete Bramante’s St. Peter’s Basilica. Michelangelo’s profile was lower and followed the one Bramante had proposed, but the parentage is obvious. This became the model for later domes. Sir Christopher Wren used it for the Protestant cathedral of the city of London. Louis XIV had his architect make a variation on the composition for the chapel he intended for his mausoleum but which instead has Napoleon. Two generations later Wren’s composition appeared on the church begun in

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Paris for its patron saint but which during the Revolution was transformed into a secular shrine for French notables and rechristened the Pantheon. That takes us to Thomas U. Walter’s Capitol dome and its many progeny in America’s state capitols. The continuity of tradition and its constant revision is also notable at the other end of the institutional spectrum, the family residence. The residence in Williamsburg where George Wythe tutored Thomas Jefferson in the law follows a composition that was solidified in England only a century earlier. Others are legion, dating from the eighteenth century to the present day and running all up and down and across America. These buildings teach. Domes dominate cities because the sacred and the profane intersect within them. The intersection could be entrusted to sacred institutions that were pagan, Christian, Catholic, or Protestant, or to secular institutions to serve as a shrine for immortals, as a Great Hall of the People, or as a library. All of these exhibit continuity within diversity, as do other institutions with a lesser reach such as state capitols, courthouses, and family residences. Traditional buildings, like the institutions they serve and represent, have identifiable pedigrees, some reaching back two thousand years, others only a few centuries. Each new example of a traditional building is unique in the way it embodies tradition while absorbing innovations to adapt it to present-day needs and building techniques. These civil buildings also differ in the care in their construction and the sites they occupy in the nation, the region, and their rural or urban setting. Across America, state capitols differ among themselves, but less than city halls do, and these differ less than private residences. Any of these are good examples of the art of building when they improve their rural or urban setting. The continuity and diversity follow lawful patterns that allow the city to make it visually manifest that its members seek a just proportionality between a central authority on the one hand and local tradition and transient circumstances on the other, that is, between authority descending from above and legitimacy being projected upward. None of this prevails in current city-building practices. Prevalent today is the belief that the city is a tool for acquiring whatever a person wants for himself. For builders the city is a blank canvas awaiting the latest notions of the avantgarde and the novelty of individual expression or fields for raising big boxes to serve commerce and suburban tract houses to provide customers. This is Glaucon’s city, the city that, as Augustine said, seeks peace and concord to promote the ends of pirates, the city that confuses goods with the good, the city that is neither good nor beautiful. Augustine, the Florentines, and the American Founders built their cities on a different foundation. In architecture and in their political institutions they drew on the best, newest understandings of traditions, many reaching

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back to antiquity. What they produced was always old, ever new, and never the same in the way it imitated the cosmic harmony, the proportionality, the natural-law, and man’s nature at its fullest. The common origin in nature for the beauty buildings seek to make visible and the good that the civil order aspires to make available allows the city to teach that men live in a world in which the natural-law provides ballast for the individual who confronts unremitting change. The good city, whether ancient or modern, teaches about the best possible proportionate balance between tradition and innovation. Too much reverence for tradition inhibits innovations that acknowledge the benefits that change offers. An excess of innovation undermines the concord of individuals united in a common pursuit and directs attention to individuals who would stand apart from that union. This excess teaches that the individual can live apart from the city, a person whom the Greeks called an idiotes, the opposite of the person of the city who was called a polites. The city that teaches how best a person is to pursue his happiness by fulfilling his nature is not the city of pigs that Glaucon advocates but the one that seeks the best possible proportion between the political life, the civil order, the architectural equipment, the urban order, and the knowledge of the nature of man. This is not the work of an individual or of a single lifetime but of people united by a common love and who draw on the past to nourish the present and assist the future. How to live with one another and the benefits of doing so is the finest lesson the city can teach.

Notes 1  Leo Strauss, Natural Right and History (Chicago and London: University of Chicago Press, 1953), p. 139. 2  For this interpretation see Jacques Ellul, The Meaning of the City (Grand Rapids: Eerdmans, 1970), ch. 1, § 1, “Cain.” 3  Saint Augustine, City of God, trans. Marcus Dods (New York: Modern Library, 1950). The relevant chapters are XI, 1; XIV, 28; XV, 1–4, 26; XIX, 13–14, 17, 21, 24; XXII, 18. 4  Niccolò Polani, De civitate Dei, Bibliothèque Ste.-Geneviève, Paris, Cod. 218, fol. 2r. 5  See for a recent review, Lawrence Lowic, “The Meaning and Significance of the Human Analogy in Francesco di Giorgio’s Trattato,” in Journal of the Society of Architectural Historians, 42 (1983), 360–70. 6  The interpretation of Brunelleschi’s intention in inventing perspective and of the two demonstration panels is based on Norris Kelly Smith, Here I Stand: Perspective from Another Point of View (New York: Columbia University Press, 1994).

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7  Marvin Trachtenberg, Dominion of the Eye: Urbanism, Art, and Power in Early Modern Florence (Cambridge and New York: Cambridge University Press, 1997). Despite the title this informative work slights the political and religious content of Brunelleschi’s innovation. 8  Filarete (Antonio di Piero Averlino), Treatise on Architecture, facsimile and trans. by John R. Spencer, 2 vols. (New Haven: Yale University Press, 1965), fol. 43r. 9  See Naomi Miller, “Mapping the City: Ptolemy’s Geography in the Renaissance,” in David Buissert, ed., Envisioning the City: Six Studies in Urban Cartography (Chicago and London: University of Chicago Press, 1998), pp. 34–74. 10  The woodcut image is from c.1510 and is based on an engraved prototype by Francesco Rosselli that survives only in a fragment from between 1482 and 1490. The interpretation given here is based largely on David Friedman, “ ‘Fiorenza’: Geography and Representation in a Fifteenth Century City View,” in Zeitschrift für Kunstgeschichte 64 (2001), 56–77. 11  Especially valuable in this interpretation has been Quentin Skinner, The Foundations of Modern Political Thought 2 vols., (Cambridge: Cambridge University Press, 1978), Part 1, chap. 1 and passim, vol. 1. 12  Verle L. Annis, The Architecture of Antigua, Guatemala, 1543–1773 [Guatemala]: University of San Carlos of Guatemala, 1968); Sidney D. Markman, Colonial Architecture of Antigua, Guatemala (Philadelphia: American Philosophical Society, 1966). Christopher Lutz, Santiago de Guatemala, 1541–1773: City, Caste, and the Colonial Experience (Norman and London: University of Oklahoma Pess, 1994) has brief comments about the city’s founding. 13  The standard comprehensive treatment of American urbanism is John W. Reps, The Making of Urban America (Princeton: Princeton University Press, 1965). I broached the interpretation presented here in “The True American City,” in The New City: The American City, University of Miami School of Architecture, II (1993–94), pp. 8–25. 14  The phrase is that of Harry V. Jaffa, The New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, Md.: Rowman & Littlefield, 2000). 15  Jefferson letter to Joseph C. Cabell, February 2, 1816, Writings (New York: Library of America, 1984), pp. 1377–81, 1380; also slightly different in James B. Conant, Thomas Jefferson and the Development of American Public Education (Berkeley and Los Angeles: University of California Press, 1962), pp. 118–19. 16  From a letter to Col. Charles Yancey, January 6, 1816, quoted in Dumas Malone, Jefferson and His Time, vol. VI: The Sage of Monticello (Boston: Little, Brown and Co., 1981), p. 248. 17  Malone, op. cit., chapters XVI–XIX, for the broad topic of education. Presented here is an amalgam of his ideas which stretched over nearly

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40 years. Conant, Thomas Jefferson, has pertinent remarks with useful appendices. 18  The passage continues: “and all persons resident in the colony who shall have paid scot and lot to the government the last [two years] …” Thomas Jefferson, Papers, ed. Julian P. Boyd (Princeton: Princeton University Press, 1950), vol. I, p. 358. 19  For an indication of the broader role of the ordinances, see, among many other studies, Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington and Indianapolis: Indiana Univ. Press, 1987), and Steven Hurtt, “The American Continental Grid: Form and Meaning,” in Threshold: Journal of the School of Architecture, University of Illinois at Chicago, II (1983), 32–40. 20  Two useful histories are John W. Reps, Monumental Washington (Princeton: Princeton University Press, 1967), and Frederick Gutheim and Antoinette J. Lee, Worthy of the Nation: Washington, D.C., from L’Enfant to the National Capital Planning Commission, 2nd ed. (Baltimore: Johns Hopkins University Press, 2006), with a bibliographic essay, pp. 390–417. 21  ”Report of the Commissioners,” Nov. 20, 1821, given in full in Dunbar Rowland, A History of Mississippi, 2 vols. (Chicago-Jackson: J. Clark, 1925), I: 516–28, p. 521 and p. 522. A useful review of Jefferson’s town plans is in John W. Reps, “Thomas Jefferson’s Checkerboard Towns,” in Journal of the Society of Architectural Historians XX (1961), 108–14. 22  Daniel H. Burnham and Edward H. Bennett, Plan of Chicago (Chicago: Commercial Club, 1909). Reprints have appeared in 1970, 1993, and 2009. See now Kristen Schaffer, Daniel H. Burnham: Visionary Architect and Planner (New York: Rizzoli, 2003), and Carl Smith, The Plan of Chicago: Daniel Burnham and the Remaking of the American City (Chicago and London: University of Chicago Press, 2006). 23  See Pamela Scott, Temple of Liberty: Building the Capitol for a New Nation (New York and Oxford: Oxford University Press, 1995); and Henry Hope Reed, The United States Capitol: Its Architecture and Decoration (New York: W. W. Norton, 2005).

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The Founders’ Conception of Education for Civic Life Daniel N. Robinson

I

n 1786, Thomas Jefferson is found in Paris, surrounded by architecture and a high culture that captured his enthusiasm and addicted him to indebtedness. As his fine house would feature portraits of the great English thinkers – Newton, Locke and Bacon – so would it be furnished with crystal and decorative items inspired by the Salons of Paris. His love affair with things French are a commonplace in his correspondence. Writing to Abigail Adams in 1785, and responding to her comments about London, Jefferson says: I consider your boasts of the splendour of your city and of its superb hackney coaches as a flout … I would not give the polite, self-denying, feeling, hospitable, goodhumoured people of this country and their amability in every point of view … for ten such races of rich, proud, hectoring, swearing, squibbing, carnivorous animals as those among whom you are; and that I do love this people with all my heart …1

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But Jefferson was able to keep his judgments clear of distractions and neatly organized into major categories. So no matter how rich and affecting the culture of France, we nonetheless find Jefferson offering a different appraisal in the matter of education. Writing to George Wythe, his former teacher at William and Mary and the man who had introduced him to the best of Scottish Common Sense philosophy, Jefferson offers this: I think by far the most important bill in our whole code is that for the diffusion of knowledge among the people. No other sure foundation can be devised for the preservation of freedom, and happiness … That the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests and nobles who will rise up among us if we leave the people in ignorance.2 A year later, Nathanael Emmons, addressing his congregation in Franklin, is found paying tribute to Benjamin Franklin who had just contributed a rich assortment of books to the parish library. Emmons was a celebrated patriot, a teacher of clergymen and an effective defender of the United States as “the new order of the ages.” He titled his sermon “The Dignity of Man” and encouraged his audience to come to terms with the obligations arising from the powers God had conferred on us all.3 Drawing attention to the relationship between forms of government and the degree to which the promise of human dignity might be realized, Emmons observed that: We live under that form of government which has always been the friend of the muses, and parent and nurse of the arts. It was while Greece and Rome were free republican states that learning there sprang up, flourished and rose to its height (pp. 899–900). However, it is not government that guarantees such achievement. Rather, it is parents standing as models of virtue and decency on which the fate of republics depends. Children are, he says, “men in miniature” (p. 905). We know that every young prince is given every advantage and is schooled in all that is of value to the formation of character. The American child should be the beneficiary of the same solicitude. In this, the principles are clear: Consider the dignity of man. Consider the worth of the soul … And let the ties of nature, the authority of God, and your own solemn vows engage you to bring them up in the nurture and admonition of the Lord (p. 905). And now, yet another year later, a comparable sermon is delivered by Samuel

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Langdon, preached at Concord. Langdon was also a true patriot, a significant figure in the revolutionary cause and one who did much to guide his fellow citizens of New Hampshire through the ratification of the new Constitution. He was also President of Harvard College, a position for which he had little affection, for his true calling was the ministry at a time when our national life was shaped as much from the pulpit as from the centers of government. Langdon’s address was titled, “The Republic of the Israelites – An Example to the American States.”4 He chooses the Israelites, a common enough example at the time, as a people long oppressed and coming out of bondage with little means by which to give stability and promise to their lives. They had the Mosaic law and this gave them moral fortitude. And they had Moses, which gave them a leader. But the burden even on so great a man was too much. What they lacked, says Langdon, was a Constitution. And in answer to Moses’ needs, God sent them to the tabernacle to choose 70 men who would share in the burdens of governance. Thus did they have the first senate and a government settled, says Langdon, “on republican principles” (p. 947). In time, however, corruption and distraction proved the undoing of the state. So what lesson does Israel have to teach the new republic? Here is the summons issued by Langdon to countrymen who might also yield to corrupting and distracting forces: I call upon you to support schools in all your towns, that the rising generation not grow up in ignorance. Grudge not any expense … It is a debt you owe your children, and that God to whom they belong … Will you hear me patiently a little further … I call upon you to preserve the knowledge of God in the land … If you neglect or renounce that religion taught and commanded in the holy scripture, think no more of freedom, peace, and happiness (pp. 961–2). These several exhortations, now more than two centuries in the past, provide a useful context for observations made in modern times by a most unlikely pair: one from Jürgen Habermas, the celebrated and self-proclaimed secular atheist, and the other from Evelyn Waugh on the occasion of his conversion to Roman Catholicism. Habermas, in an essay published in 2007 and titled, “A Time of Transition,” offers this unexpected but entirely correct judgment: Christianity, and nothing else, is the ultimate foundation of liberty, conscience, human rights, and democracy, the benchmarks of Western civilization. To this day, we have no other options … We continue to nourish ourselves from this source. Everything else is postmodern chatter.”5

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It was in the Fall of 1930 that Waugh was received into the Church, thereupon becoming the subject of public attention bordering on amazement. The London Mirror featured a column in which this most modern of novelists was seen as having been “captivated by the ritual.” Why on earth had Waugh, of all people, chosen the path to Rome? And Waugh’s reply? It seems to me that in the present phase of European history the essential issue is no longer between Catholicism, on one side, and Protestantism, on the other, but between Christianity and chaos. Civilization – and by this I do not mean talking cinemas and tinned food, nor even surgery and hygienic houses, but the whole moral and artistic organization of Europe – has not in itself the power of survival. It came into being through Christianity, and without it has no significance or power to command allegiance.”6 Habermas and Waugh reached the same conclusion, one reached by many observers over the long, influential course of Christianity in the West. In purely historical terms, the Judeo-Christian conception of human nature confers dignity and purpose on each individual life. It would be Christianity that universalized this understanding and proceeded to draw out the fuller implications of the political life that is right for beings that are rational as such. Christianity, however, was not born in an intellectual vacuum nor was it obliged to create a philosophical foundation for itself. It had the benefit – and made productive use of this benefit – of centuries of philosophical inquiry. In adapting the fruits of this inquiry to the new conception of human nature and the conditions required to nurture it, Christianity’s major religious philosophers established both the rationale and the institutions to which Habermas and Waugh refer. The rationale and the institutions would become ever more pliant, ever more useful to those forms of civic life characteristic of what are often blandly referred to as the Western democracies. There is too much room for misunderstanding on these points. Habermas and Waugh are in fundamental disagreement on matters of a theological nature. They are, however, entirely of one mind on the debt Western civilization owes to Christianity. Put another way, Habermas not only acknowledges the debt but is prepared to defend the forms of political and social life brought about by religious teachings which he nonetheless rejects. The debt itself was obvious and largely uncontested at the time of the Founding, even though there were considerable variations in the specific beliefs held by the Founders. In this connection, much is made of “Deism” and its putative rejection of Christianity’s central doctrines, but offsetting this are the actual facts pertaining to the place of religion in the Founders’ understanding of education for civic

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life. Writing to Richard Price in the year following the French Revolution, John Adams recorded again – as he had years before that Revolution – his utter skepticism toward the philosophical principles animating the affairs in France. By way of a quietly desperate conclusion, he tells Price, “I know not what to make of a republic of thirty million atheists.”7 Paul Conkin observed many years ago that: Anyone who would understand politics in eighteenth-century America must have occasional recourse to religious beliefs. Residual forms of Christian theism remained the keystone not only of popular cosmology and ontology … but also of the beliefs of the intellectual leaders …The confident assurance of an ordered, logical, comprehensible universe rested on the belief in a purposeful creator.8 Students of the late colonial period in American history recognize a philosophical conservatism that might seem rather at variance with the revolutionary political project to which the Founders were committed. If this conservatism is to be understood and employed in a manner that clarifies various features of the project itself, we must be mindful that the so-called Enlightenment – this Age of Reason, as Tom Paine would title his most controversial work – played host to an unusual assortment of radical and even fantastical ideas, not all of them exported from France. An age that would nearly exhaust the rhetoric of liberty and freedom must be at war with all traditional authority. An age that would reserve to the individual the right to think freely on all matters must find within the individual at least the basic powers on which thought that is free is also intelligible. And an age that will pit the common sense of the many against the enduring understanding of the few must expose that understanding to systematic, even relentless criticism. It is no surprise, therefore, that such a large portion of the intellectual energy of the period was devoted to the teachings, the claims, the historical validity and the moral authority of Christianity, the dominant religion. As this intellectual labor proceeded, sharp divisions would arise among those of the faithful whose political aspirations were otherwise compatible and earnest. Note, then, that the Revolution to be achieved by the Founders faced challenges on two fronts: military and philosophical. The cause of the former would have been hopeless had the latter not succeeded. But the success of the latter, like that of the former, was made doubtful by loyalties at once divided and intense. For many, a challenge to the authority of the British crown was of little consequence compared with a challenge to the authority of Scripture and its revealed truths. Unlike France, the envisaged American republic would not

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under any circumstances be composed of thirty million atheists. The powerful and fashionable blasphemies of the Salon would make little progress here. The task facing defenders of independence was to render the claims and promises of this Age of Reason compatible with the sturdy truths embraced by the God-fearing. Enter Deism. In an excellent study of Jonathan Edwards, Gerald McDermott notes that: Deism was the most crystallized version of Enlightenment religion in the eighteenth century … Therefore, when Jonathan Edwards set his sights on Deism and confronted its claims, he was doing battle with Enlightenment religion”.9 The Deism that Edwards would oppose stood as a challenge not solely to the truth of scripture but to the authority that truth claimed for itself. Edwards’ target would not become widespread until after the American Revolution and after Edwards’ time. By that time it would result in what Hans Frei called The Eclipse of the Biblical Narrative.10 But it is revealing that Edwards himself, even as he sermonized to the native American Indians of Stockbridge in 1753, would assert the authority of reason to establish that the Holy Book is, indeed, the word of God.11 In important respects, the match McDermott stages between Deism and Edwards is one in which Edwards is returning his own serve. His ardent defense of revelation and the necessary framework for philosophy itself – a framework already acknowledged by Locke and by Samuel Clarke – still reserves to science and philosophy the central part in helping us achieve what revelation has identified. All this, however, gives too narrow a meaning to a word rich in its historical manifestations. Those like Jefferson, who would invoke the concept of nature and nature’s God, may be dubbed Deists, but the word at this late date, is so muted by time and so encrusted with qualifications as to resist all but the most disciplined attempts at empathy with the past. Deism, in the absence of quite careful qualifications, was scarcely a theological position from which to inspire respect and confidence among citizens of the New World. In some versions it was, and was readily perceived as, the rank atheism of the new French. Still older and radical formulations had been adopted by the Levellers during England’s Revolution, and in so grossly a materialistic version as to offend both the homespun and the aristocratic sensibilities still obtaining in the colonies.12 The word itself has a history long predating the Enlightenment; one wrapped in controversy and ideological complexity. Roger Emerson,13 examining recent scholarship, considers arguments to the effect that Deism is but a more extreme expression of the Reformation itself, grounded ultimately in Luther’s

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vindication of the authority of personal conscience. I will return to this thesis. It is certainly the case that, by the early decades of the seventeenth century, the movement of thought and sentiment had produced a growing cadre of freethinkers, atheists, libertines. Burton’s classic The Anatomy of Melancholy would actually establish a special psychiatric category for all of them: that of religious melancholy arising from the woeful thesis that God is merely Nature itself.14 Granting that Deism is not a treatable mental disorder, it is nonetheless idle to strive for a strict definition of it in purely metaphysical terms. Rather, the ism is found in texts and sermons, pamphlets and broadsheets, often having in common only an assault on complacency. Within the tradition that has been called Deism, the most influential writers between Locke and Thomas Paine include names now nearly lost to history. Two of the leaders of thought were Charles Blount and Charles Gildon, both widely read and claiming large and diverse followings. But Blount regarded himself as an opponent of Deism as that word was understood at the time, and Gildon’s The Deist’s Manual (1705) gives pride of place to the Bible. Blount is the more interesting of the two, a radical freethinker who declared that: REASON … being the Supream and Primitive Director of every Man, to infringe its Liberty of directing, is to invade the Common Charter of Nature, and every Man’s Right and Property … (1695)15 But if Blount was openly critical and hostile toward any contender to the authority of reason, most of his contemporaries were unblinking defenders of Scripture. The main lines of disagreement were drawn between those who would totally rationalize the biblical account and those loyal to its mystery. This is surely the line dividing, say, a Daniel Defoe from a Benjamin Hoadley or an Anthony Collins. It is not necessary to explore this further, except to underscore it with a few words about Charles Gildon. What Gildon hoped to achieve was a defense of reason as the means by which to comprehend scriptural truths, and surely not to refute them. The chief target of his treatise is the materialistic and atheistic philosophy ascribed to Hobbes and his followers. Gildon replies to them with such reassuring estimations as this: Man then being confes’d to be the Effect of an Intelligent and good Cause, not of Chance, this Cause could want, neither the Will, nor the power to put him into a Station capable of yielding him that Happiness, which was design’d (for) him; but it being evident, that this entirely depends

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on Society; it follows that Society is of divine Institution … It is also as evident, that God cou’d not in his Wisdom and Goodness, lay on Man a necessity of Society, without furnishing him with means of making that Society conducive to that End, which a Benevolent maker propos’d, that is, the Happiness of the Creature. This Means is evidently Reason; which plainly discovers, by Man’s Activity of Mind, and Reflection on the nature of Things, all the necessary Rules of this Society, which must make it useful to the common Happiness of the whole.16 Here the pursuit of happiness is inextricably connected to life in society – a civic life for which the young must be prepared. Again, education for civic life, at least as understood by one “deist,” presupposes acceptance of Christian teaching. Happiness is attainable through the use of reason by which all the rules necessary for the preservation of a decent and nurturing society can be discerned. Gildon was not a deist who denied miracles or rejected the authority of scripture. He was surely not an atheist. His Manual is not an anticipation of Hume or Voltaire. Instead, it expresses the impatience and tentativeness of a Christian living in an age in which Baconian and Newtonian science has already earned an authority of its own; an impatience based on the recognition that religious persons can no longer resist the authority of science within its expanding sphere of legitimacy, and a tentativeness as to just how vast and encompassing that sphere may prove to be. If his position were reducible to a sentence, it would be, as he states it: To make a Religion true it ought to know our nature, because the true Knowledge of the Nature of Man, his true Good, true Virtue, and true Religion, are inseparable.17 It would simplify matters if, along with so much received scholarship, Deism could be explained as the reasonable person’s reliance on Bacon, Newton and Locke to guide all speculation, withholding confidence from all but the propositions confirmed by science. The problem with attempts to reach an understanding this way is that science itself, throughout the seventeenth and eighteenth centuries, retained vestiges of earlier superstitions and errors. Burton’s Anatomy of Melancholy (1628) is again instructive. Having argued, on the basis of numerous medical and scientific studies and reports, that mental illnesses “… have their chief seat and organs in the head”,he goes on to conclude that those most prone to madness are persons born under the moon, Saturn or Mercury, as well as those with little heads, hot hearts, cold stomachs, moist brains and melancholy parents.18 Progress, alas, is not always monotonic!

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Paine’s The Age of Reason was the most controversial work published in the United States as of 1795. It was not especially original as Bible criticism, for that genre was by then robust and expanding. Historical criticism in this “age of history” was a prosperous cottage industry. It is doubtful, however, that any comparable work inspired such rapid and prolific literary rebuttals. In the five years between its appearance and 1800, more than fifty works were published in opposition to it.19 The battle lines are familiar, still sharply drawn even if now chiefly in the outer margins of scriptural exegesis. Paine avails himself of common sense, some historical resources, the evidence of everyday life, and reaches the conclusion that the Bible is not the unbroken skein worked by a single hand; further, that utterly human hands are the creative source of the Christian religion, of all religion. Not an atheist, Paine nonetheless argues that the God of the orthodox religionist is man-made, from toe to head. Much of the evidence adduced in support of Paine’s major conclusions he claims to find in Scripture itself, where one discovers actions and statements scarcely credible when put into the mouth of any being worthy of divinity. Always at home with the philosophes, Paine found comfort in the position reached by the Coterie Holbachique, through Holbach’s probable reworking of Boulanger’s Critical Examination of the Life of St. Paul (Paris, 1770).20 The burden of the work is to present Christianity as an essentially Pauline creation, scarcely faithful either to the actual life of Jesus or to the works and words of the Apostles. It is not to these ideas that attention is drawn here, but to the subtext; namely, to a perspective on the nature of religion itself. The only “founding” documents signed by Tom Paine were the best-selling books he wrote. He is included among the Founders, nonetheless, and was so regarded by them, even as they were caused to wince in response to his intemperate rhetoric. What he set down in The Age of Reason was consonant with the beliefs of some of his celebrated contemporaries, offensive to others, perhaps a bit beside the point to still others. In a letter to Rush, Adams – never on good terms with Paine – recalls a visit from Paine after the publication of Adams’s Thoughts on Government (1776). Paine castigates Adams for his thoughtful respect for monarchic forms of governance. Playfully, Adams suggests that in judging monarchy to be “unlawful in the sight of God,” Paine is surprisingly beholden to “pious doctrine.” Paine accepts the good humor and acknowledges a temptation one day to publish his thoughts on and rejection of the Old Testament.21 What The Age of Reason records is the progressive nature of religious understanding itself; the refusal to accept the petrification of thought as the price of stability; the insistence that any document, any word, that would

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stand as a bar to freedom or a constraint on thought be subjected to the most searching and searing criticism. The God of the Founders, variously characterized and more variously worshiped, is providential not in the matter of wheat and water, for the land can be wasted and water made foul. The God of the Founders provided at least one creature with rational powers sufficient unto the purposes of an earthly life bound to be rife with error and frustration. The easy solution is delusion. Idle minds are the Devil’s workshop, and the mind is idle when it surrenders its powers to a book, to any book. The Founders’ God is a god of ideals, providential to those who share them, but ever mindful of the wide gulf that separates ideals and ideology. In this respect, it is of less importance that Paine and Burke were on opposite sides in the political philosophies of their day. It is of great importance that their debates gave life where the tyranny of thought would stifle it. It was of monumental importance that each of them understood that criticism is a cleanser, not a solvent, and that what it is applied to is made the better and brighter for all the abrasions. This is the breathing room established by Western civilization with its millennial history of doctrinal debate and self-criticism. Nonetheless, a serious respect even for the orthodoxies of religion was a matter of record in the thoughts and the official actions of Revolutionary America. In Virginia, a Declaration of Rights was adopted on May 15, 1776, less than two months before the signing of the Declaration of Independence. Granting in Section 1, That all men are by nature equally free and independent and have certain inherent rights … the Virginia Declaration goes on to proclaim in Section 15, That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.22 Similarly, the Massachusetts Bill of Rights of 1780 affirms the natural equality of all, each possessing “certain natural, essential, and unalienable rights,” quickly going on to observe that: …the happiness of the people and the good order and preservation of civil government essentially depend on’ piety, religion and morality …23

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Indeed, the Massachusetts Bill goes even further, insisting that: … these cannot be generally diffused through a community but by the institution of public worship of god and of public instructions in piety, religion and morality. Thus, again in Article XVIII of the Massachusetts Bill of Rights, we find not only an affirmation of these precepts but the insistence that they be uppermost in the selection of officers of State: A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry and frugality,are absolutely necessary to preserve the advantages of liberty, and to maintain free government.24 Nothing in the subsequent deliberations leading to the U.S. Constitution would be at variance with these conceptions of government and of citizenship. The purpose of government is to secure the happiness of the governed, but this very happiness depends centrally and essentially on a civic life that is moderate, just, and pious. The government most assuredly is not to impose religious orthodoxies, but equally assuredly it is to respect those on which its own authority ultimately depends. Here, then are the temporal boundaries: the Revolutionary period featuring the Founders and their brethren, and recent and contemporary national life on the edge of losing the moral and spiritual foundations on which the great experiment in self-governance was predicated. These foundations were very clearly articulated by John Adams in his unofficial hours and by James Wilson as a Justice of the first Supreme Court. While still young, Adams was less than fully satisfied with what he had learned at Harvard, especially as regards classical studies.25 At the age of 29 and with the bidding of his young colleague, Benjamin Gridley, he joined in the forming of the Sodalitas Club. The idea for the club was Gridley’s, the small membership including Adams and Samuel Fitch. All three had attended the famous case pleaded by James Otis in 1761 against the King’s imposition of writs of assistance; a plea that dubbed such writs “an instrument of slavery” and affirmed the principle of natural rights and fundamental Common Law precepts. Though short-lived, the Sodalitas Club provided the context for Adams’s anonymously published “August 1765,” a treatise on the Puritan rejection of Feudal Law. The following lines are found in that essay: I always consider the settlement of America with Reverence and Wonder

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– as the Opening of a grand scene and Design in Providence, for the Illumination of the Ignorant and the Emancipation of the slavish Part of Mankind all over the Earth … Provision was early made by Law, that every Town should be accommodated with a grammar school – under a severe Penalty – so that even Negligence of Learning was made a Crime”.26 As for meetings of the Club, the first of the classical treatises chosen for analysis and discussion was Cicero’s famous oration, Pro Milone.27 An interesting choice, indeed. for some 25 years later this same oration will be featured in the twelfth of James Wilson’s Lectures on Law. In Pro Milone, Cicero prepared a defense of the famous Roman agitator, Titus Annius Milo Papianus. It was Milo who had ordered his slave to murder Publius Clodius Pulcher in 53 B.C. The same Milo had been one of Cicero’s ardent supporters, working successfully in behalf of Cicero’s return from exile. Nonetheless, when Milo was to be tried for the murder of Clodius, Cicero decided against defending him publicly. He chose instead, and after Milo’s exile, to send him the defense he had composed and might have delivered. (At the time, Milo was serving his sentence in today’s Marseille. He wrote back to Cicero that had the latter actually secured his freedom he, Milo, would not now be dining on fine red mullet!) It is not difficult to see what both the young Adams and years later James Wilson, the seasoned lawyer, found in Cicero’s undelivered defense. Wilson was a native Scot, a signer of both the Declaration of Independence and the Constitution, and a truly pivotal figure in the development and ratification of the latter. His use of Cicero’s Pro Milone appears in the lecture he devotes to the concept of “Natural Rights.” The key passage from Cicero is this: There exists, Judges, this law which is not written, but inborn; we have not learned it, received it, or read it, but from nature herself we have snatched, imbibed, and extorted it; a law to which we are not trained, but in which we are made; in which we are not instructed, but with which we are imbued …28 There is nothing exceptional in one of the Founding Fathers, who was among President Washington’s first appointees to the Supreme Court, deriving his conception of human rights from classical sources. The modern tendency, out of a profound respect for the Founders and for the Age of Enlightenment itself, is to attribute their lofty principles and ideals to them directly. Many years ago, this tendency was the object of critical assessment by Professor Gilbert Chinard, at Princeton. In 1940, he contributed an illuminating essay to the very first issue of the Journal of the History of Ideas, an essay he titled,

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Polybius and the American Constitution.29 I offer these instructive lines from that essay: The philosophy of the eighteenth century is still so close to us, we live in societies so deeply transformed and so completely remolded by eighteenth-century thinkers, that our natural tendency has been to attribute to English liberals and deists, to the French philosophes and to the American founders an originality which they themselves would usually not have claimed.30 Professor Chinard goes on to identify two issues that dominated the concerns expressed at the Constitutional Convention; first, the need for and the nature of “checks and balances,” and second, how the Senate should be organized and comprised. Professor Chinard goes on to say: On these two points, the delegates called upon Montesquieu as an authority in support of their views; but a careful study of the Records and the Federalist would show that more frequently they went back to the ancient sources from which Montesquieu himself had derived his information, and that they had apparently a first hand acquaintance with ancient historians and ancient history.31 If this is at all surprising to a contemporary audience, it surely came as no surprise to Edmund Burke. Consider these lines from his famous speech on Conciliation delivered on 22 Mar. 1775: Permit me, Sir, to add another circumstance in our colonies, which contributes no mean part towards the growth and effect of this untractable spirit. I mean their education … This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle.32 Acknowledged here by Burke, and defended by nothing less than the facts of history itself, is the connection between, on the one hand, a mind prepared by disciplined study, and, on the other hand, a mind able to anticipate consequences and form a plan of action to meet them. Simple persons are abandoned to consequences. Their judgments are a posteriori. The instructed mind sees ahead, weighs alternatives, locates the ruling principle and from

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it forges predictions and plans. This understanding was commonplace in the eighteenth century. It is no wonder, then, that so many of the leaders of the Revolutionary cause devoted so much thought to the matter of public education. In the significant year 1776, delegates to the Continental Congress were encouraged to consult Adams on the task of creating State constitutions. He offered his advice to the delegates from North Carolina, providing them with what became one of the most notable productions of the Revolutionary period, his Thoughts on Government. It is significant as a treatise in political theory, but the passage most relevant to my present purpose is this: Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.33 The beneficiaries of the humane and generous mind are the youth of the nation; those on whom its fortunes will soon depend. The liberating education generally available to children of privilege, within the context of a settled and flourishing family life, is likely to be lacking for children of the lower class of people. Adams makes clear in his Thoughts on Government that the right form of government and the right foundational principles are but abstractions until embraced by an informed and able citizenry. If any of the founders was more explicit and persistent in this than Adams, it was Thomas Jefferson. In his Notes on Virginia of 1782, Jefferson again states that the law covering public education has as its most legitimate objective, … rendering the people the safe as they are the ultimate guardians of their own liberty.34 Years later, in 1810, the same theme is stressed in his letter to John Tyler, Jefferson now declaring that: I have indeed two great measures at heart, without which no republic can maintain itself in strength: 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it.35 In a letter to John Adams in 1813, Jefferson’s concerns are framed in another way, further completing his thoughts on the matter:

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This [bill] on education would [raise] the mass of the people to the high ground of moral respectability necessary to their own safety and to orderly government … I have great hope that some patriotic spirit will … call it up and make it the keystone of the arch of our government.36 Four years later, and recognizing that the United States was and would long continue to be a nation of immigrants, Jefferson wrote to Correa de Serra about his Bill for universal education. Its aim, he says, is, to bring into action that mass of talents which lies buried in poverty in every country for want of the means of development, and thus give activity to a mass of mind which in proportion to our population shall be the double or treble of what it is in most countries.37 (I might note that in the same year Jefferson was writing to Correa de Serra, John Witherspoon was distributing his Letters on the Education of Children, and on Marriage.38 I return to Witherspoon shortly.) Recall that Jefferson was on record as judging the two greatest metaphysicians of the age to be Dugald Stewart and Destutt Tracy (1754–1836).39 Stewart was a student and lifelong friend of Thomas Reid’s and defender of the Scottish “Common Sense” school. Destutt Tracy was one of the leading French philosophes. In 1811 he published in French A Commentary and Review of Montesquieu’s ‘Spirit of Laws’: To Which Are Annexed, Observations on the Thirty-First Book, by the late M. Condorcet: and Two Letters of Helvetius, On the Merits of the Same Work which was translated by Jefferson himself.40 In Book IV of Destutt’s Commentary the author takes Montesquieu to task for asserting self-denial as the principal disposition expected of those living under republican forms of government. He rejects the proposition that a hairshirt is to be preferred to a life of happiness and comfort. He also denies to the government the right to take children from families and arrogate to itself the task of their education. Rather, he says, The only counsel that can be given to government on the subject of education, is to provide such gentle means or regulation, as that the three kinds of education, which men successively receive, from their parents, from their teachers, and from intercourse with society, shall be in unison with each other, and all tend towards the maintenance of the principles of the government.41 The task of public education is that of harmonizing parental, educational and social instruction in a manner required for the preservation of those

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principles on which a decent government depends. Jefferson knew this and admired the arguments that Destutt adduced in support of it. We find in the Autobiographical sketch he composed five years before he died Jefferson’s reflections on the same matter expressed earlier by himself and by Adams: The less wealthy people … by the bill for a general education, would be qualified to understand their rights, to maintain them, and to exercise with intelligence their parts in self-government; and all this would be effected without the violation of a single natural right of any one individual citizen.42 Jefferson was not unique among his contemporaries in recognizing the very nearly causal connection between the prepared mind and the preservation of liberty. Nor was he any more sanguine than his contemporaries about the constant threat of freedom’s degeneration into anarchy. The historical remedy of tyranny has but one credible alternative. Jefferson put it this way: I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome direction, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.43 From these sources – and scores of others could be added to them – the following general conclusions are warranted: First, founding a republic is a serious matter that calls for citizens fully conversant with history’s successes and failures. Preparation for what is finally a civic life includes classical sources, if only to test the progress claimed by more recent and by contemporary commentators. Thus, if Montesquieu seems wise, and if Montesquieu must consult the ancients, then perhaps we should follow his example and aspire to comparable wisdom, if only to test Montesquieu’s own reading and conclusions. Second, the burden here is especially heavy on persons who have not had the benefit of wealth, high breeding, and rank. In a busy, complex, growing political world, it is easy to be marginalized without even knowing it. It is easier still to be manipulated and gulled. If proper measures are not taken, a class system will assert itself, and the high ideals of Republicanism will then give way to the tired, dangerous, de facto tyrannies of the past. If we the people are the ones who constitute the United States, then the people are the government and subject to the same moral and political appraisals brought to bear on any government. Clearly, then, not only education – but a high and disciplined form of education – must be at

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the foundation of any republic that would recommend itself as nothing less than a republic of virtue. The American Founding was not an academic exercise. The blood and bravery expended in its behalf have been comparably repaid only by succeeding generations who have risked their lives to preserve it. Nonetheless, when John Adams insisted that the American Revolution was “effected before the war commenced”44 he was making a point that is often overlooked; first there was a revolution in perspective – nothing less than what Adams referred to as a “religious” transformation in perspective. There was a revolution in the political and moral appraisals of a bequeathed reality that left far too much to be desired. An angry and excited mob can stage a rebellion and be judged later as having had every right to have done so. This is what Burke was getting at when he spoke of simple people who react on the basis of grievance and indignation. The American founding did not arise from the indignation of a mob, though indignation there was in abundance. It arose only when such sentiments were joined to and justified by principles judged to be universally valid. In a word, the American founding took place because there were good reasons for it. If it had failed, the reasons would have remained good, even as they remained in waiting. It was understood and made explicit by both Jefferson and Adams that the growth and diversity of the American population required an effective means by which to achieve and preserve cohesion. The focus on public education was maintained by this fundamental consideration. With the Bill of Rights in place, the latitude thus insured and even encouraged by the Constitution made uncertain whether a population of individuals – drawn from different ranks in society, different religious confessions, different talents and aspirations – could nonetheless be integrated within a commonwealth, equal as citizens, however they might differ otherwise. Quoted earlier are some lines from Jefferson’s autobiography where he reflects on the place of education in relation to the least privileged members of society. He says, The less wealthy people, by the bill for a general education, would be qualified to understand their rights, to maintain them, and to exercise with intelligence their parts in self-government … Having focused on the importance of education for the least privileged, what is to be said in behalf of the most privileged? These were the persons forming a class of special interest to the greatest educator of the Revolutionary period, John Witherspoon, President of the College of New Jersey, soon to be Princeton. His was a pivotal role in the Revolutionary cause; a signer of

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the Declaration of Independence and the Constitution, a teacher of three justices of the Supreme Court, ten cabinet officers, a dozen members of the Continental Congress, twenty-eight Senators and forty-nine members of Congress – and James Madison, into the bargain. In one of his many addresses on the subject of education, Witherspoon draws attention to the special needs of the children of society’s most affluent and powerful families. These children, he says, have, … of all others the greatest need of an early, prudent and well conducted education. The wealth to which they are born becomes often a dangerous temptation, and the station in which they enter upon life requires such duties as those of the finest talents can scarcely be supposed capable of unless they have been improved and cultivated with the utmost care. Experience shows the use of a liberal education … It is generally a preservative from vice of a certain class … inspiring the mind with an abhorrence of low riot and contempt for brutal conversation.45 Is there any doubt as to the aptness of Jefferson’s and Witherspoon’s reflections when applied to our contemporary national life? How does the educational establishment instruct the young in the very nature of rights, their relationship to duties, their source and their limits? How does the educational establishment distinguish for the young between individuality and individualism? The former, rightly understood, reaches the dignity and special nature of each person. The latter is mere ideology, an excuse for indifference to the needs and expectations of others. It is a kind of controlled defiance, lethal in its effects on civic life, a pathological form of immaturity. Of course, national life in the United States and in the wider world has changed, perhaps even beyond the imagination of the Founders. The differences between now and then are so great that attempts to apply the reasoning and perspective of the late eighteenth century to current conditions surely will seem anachronistic. In important respects, however, the Founders themselves may have regarded such criticism as misplaced. To regard as some sort of fallacy an understanding of the past in terms that match up with one’s present condition is to assume that the human condition itself shares little in common with itself at different times and under different conditions. If this were so, history would not only fail to be a guide, it would fail even to be intelligible. In considering the history of failed republics, the Founders had good reason to believe that the perils of the past were still with us, are always with us. The repetition of serious blunders does not result in immunities, but in a weakening of the frame, an enlargement of vulnerabilities. Thus did they set out to create a new order, a realm of ordered liberty respectful of

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the dignity of the individual whose fundamental rights were not the gift of government in the first instance. “A new order.” The phrase reminds one of the Great Seal of the United States and the motto, Novus Ordo Saeclorum – A new order of the ages. The Great Seal was designed in 1782 by Charles Thomson, Secretary to the Continental Congress. We should remember him for many reasons, not least of which is this: On that historic day, July 4, 1776, the original Declaration of Independence was actually signed by only two people, Charles Thomson, in his capacity as Secretary, and John Hancock who was then President of the Continental Congress. But Thomson deserves to be remembered for still other achievements. He was born in Ireland and arrived here impoverished as a boy, his father having died before the ship that carried them reached port in the New World. Thomson came to be known and trusted for undeviating integrity. The Indian tribe of the Delawares accepted him as a member and gave him the name, Man of Truth. There are still other accomplishments Thomson can claim. In 1808 he published the first American translation of the oldest version of the Old Testament in four volumes, adding to this in the same year his translation of the New Testament. Here we have an Irish orphan with mastery of Greek rising to a level of civic life and devotion to liberty that would have John Adams declare him to be “the Sam Adams of Philadelphia.” What of the motto itself? Thomson took the phrase, Novus Ordo Saeclorum, from Virgil’s IVth Eclogue which includes the beautiful passage, “Ultima Cumaei venit iam carminis aetas; magnus ab integro saeclorum nascitur ordo.” I translate these lines, Now does the age of prophetic song come to its finality; born anew is the great order of the ages. Henceforth the world will be not as prophesied, but as made. As for the United States, what greater evidence that our lives are in our own hands than Charles Thomson’s own life? The Great Seal is an echo of a classical vision that no longer accepted the past is prologue. But how is this to be understood? Surely not because human nature has metamorphosed into something other than itself. Rather, it is because the powers latent in humanity have been liberated from an oppressive and inauthentic past. It is just this understanding that gave the Founders confidence that what they sought to bring about was right for human nature as such, and not merely for persons living here rather than there, now rather than then.

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Of all the sources that animated the acquisitive faculties of the Founders, it was Cicero who had pride of place. The Founders tended to think in the idiom of law, and Cicero was a great lawyer. They tended to think in civic terms, and here again Cicero was the quintessential commentator. His treatise on duties – his De Officiis – was a staple in the schools and in the domestic libraries of lawyers and farmers alike. Cicero composed the treatise in the last year of his life, presented as a letter to his son, then a philosophy student in Athens. There is a passage from that work that would have been well known and well rehearsed at Princeton when Madison and Witherspoon had their tutorials and later as Madison attended Board Meetings at the University of Virginia – a nearly perfect attendance over a course of 26 years. After noting the special nature bestowed on various creatures, Cicero says that, “Above all, the search after truth and its eager pursuit are peculiar to man.” He notes the eagerness with which we approach the wonders of creation and how such knowledge is, as he says, “indispensable to a happy life.” He goes on: To this passion for discovering truth there is added a hungering, as it were, for independence, so that a mind well-moulded by Nature is unwilling to be subject to anybody save one who gives rules of conduct or is a teacher of truth or who, for the general good, rules according to justice and law. From this attitude come greatness of soul and a sense of superiority to worldly conditions.46 Tocqueville, perhaps the most discerning student of the American experiment, recognized how a liberated and independent people might well fall prey to a new form of tyranny, one for which Tocqueville could not find a defining term. He speaks of a “kind of oppression that threatens democratic peoples” being “unlike any the world has seen before.” Looking into the future toward this new form of despotism he sees: … an innumerable host of men, all alike and equal, endlessly hastening after petty and vulgar pleasures with which they fill their souls. Each of them, withdrawn into himself, is virtually a stranger to the fate of all the others. For him, his children and personal friends comprise the entire human race. As for the remainder of his fellow citizens, he lives alongside them but does not see them. He touches them but does not feel them. He exists only in himself and for himself, and if he still has a family, he no longer has a country. Over these men stands an immense tutelary power, which assumes sole responsibility for securing their pleasure and

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watching over their fate. It is absolute, meticulous, regular, provident, and mild. It would resemble paternal authority if only its purpose were the same, namely, to prepare men for manhood. But on the contrary, it seeks only to keep them in childhood irrevocably.47 It would be comforting to think that today’s educational institutions at every level might provide correctives and antidotes. Instead, they are but symptoms of the disease they would presume to cure. But this is not the last word. A free people may freely reinvent themselves, may rediscover a path long neglected, may find within themselves the resources – the willpower – to abandon their distractions. Thus, once more might, the age of prophetic song come to its finality – and the great order of the ages may yet be born again.

Notes 1  Letter dated June 21, 1785. Many of Jefferson’s letters are available on the internet via The Avalon Project, http://avalon.law.yale.edu/18th_century/let29. asp 2   The Writings of Thomas Jefferson, 20 Volumes, Andrew Lipscomb and Albert Bergh, (eds), (Washington, D.C.: 1903–1904), vol. 5, p. 396. 3  Nathanael Emmons, “The Dignity of Man,” in vol. II, Political Sermons of the American Founding Era, 1730–1805, Ellis Sandoz, ed., (Indianapolis: Liberty Fund, 1998), pp. 887–907. 4  Samuel Langdon, “The Republic of the Israelites an Example to the American States” (1788) in vol. 1, Political Sermons of the American Founding Era, 1730–1805, Ellis Sandoz, ed., (Indianapolis: Liberty Fund, 1998), pp. 943–67. 5  Jürgen Habermas, “A time of transition,” published in Italian by Feltrinelli (2007). 6  In Joseph Pearse, Literary Converts, page 166. New York: Ignatius Press; Second edition (March 2000). 7  Cited in Joseph J. Ellis, Passionate Sage: The Character and Legacy of John Adams, (New York: Norton & Co., 1994), p. 92. 8  Paul Conkin, Self-Evident Truths: Being a Discourse on the Origins and Development of American Government, (Bloomington: Indiana University Press, 1974). p. 121. 9  Gerald McDermott, Jonathan Edwards Confronts the Gods: Christian Theology, Enlightenment Religion, and Non-Christian Faiths, (Oxford: Oxford University Press), 2000; p. 217.

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10  Hans Frei, The Eclipse of the Biblical Narrative, (New Haven: Yale University Press, 1974). 11  McDermott, op. cit., pp. 72–3. 12  For Deism and the Levellers, see Margaret Jacob, The Newtonians and the English Revolution 1689–1720, (Ithaca: Cornell University Press, 1976), pp. 23–8. 13  Roger Emerson, ‘Latitudinarianism and the English Deists”, in Deism, Masonry and the Enlightenment, J. A. Leo Lemay, ed., (Newark: University of Delaware Press, 1987), pp. 19–48. 14  Robert Burton, The Anatomy of Melancholy (1621), Floyd Dell and Paul Jordan-Smith, (eds), (New York: Tudor Publishing, 1938), pp. 870–932. 15  Quoted in Roger Emerson, ALatitudinarians and the English Deists@, p. 25, in Deism, Masonry and the Enlightenment, J. A. Leo Lemay, ed., (Newark: University of Delaware Press, 1987). 16 Charles Gildon, The Deist’s Manual (1705), (New York: Garland Publishing Co., 1976), p. 220. 17 Ibid. 18 Burton, op. cit., part I, sec. 1, Member 3, subsection 2. 19  This figure is given by Edward H. Davidson and William Scheik, Paine, Scripture and Authority: The Age of Reason as Political and Religious Idea, (Bethlehem: Lehigh University Press, 1994), p. 88. 20  Consult Davidson and Scheik for a discussion of these influences. 21  John Adams to Benjamin Rush, April 12, 1809, in The Spur of Fame: Dialogues of John Adams and Benjamin Rush 1805–1813, John A. Schutz and Douglass Adair, (eds), (Indianapolis: Liberty Fund, 1966), p. 157. 22  H. S. Commager and R. Morris, (eds), ‘The Spirit of “Seventy-Six”’, (New York: Harper & Row, 1958). 23  Ibid. 24  Ibid. 25  Note that preparation in Classics was extensive. See William Ziobro, “Classical education in Colonial America”, in Michael Meckler, ed., (Editor) Classical Antiquity and the Politics of America: From George Washington to George W. Bush, (Baylor University Press, 2006). 26  From John Adams, Diary 10, includes legal notes, 24 January–21 February 1765, August 1765. Massachusetts Historical Society, Adams Family Papers. Adams here is referring to the laws of 1642 and 1647 passed by the Massachusetts Bay Colony requiring that all children be taught to read and write. 27  Consult for the details, John Adams, Diary 10, 24 January–21 February 1765. Adams Family Papers, Massachusetts Historical Society, Electronic Archive at: http://www.masshist.org/digitaladams/aea/cfm/doc. cfm?id=D10 28  James Wilson, vol. 2, p. 1082. All references to the Lectures of James

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Wilson are taken from The Collected Works of James Wilson, (2 vols.), Kermit L. Hall and Mark David Hall, (eds), (Indianapolis: Liberty Fund, 2007). 29  Journal of the History of Ideas, Vol. 1, No. 1. (Jan., 1940), pp. 38–58. 30  Ibid., p. 39. 31  Ibid., p. 43. 32  Edmund Burke, Speech on Conciliation with the Colonies, Ch. 1, Document 2, in The Founders Constitution. 33  John Adams, Thoughts on Government (1776), Ch. 4, Document 5, in The Founders Constitution. 34  Thomas Jefferson: Notes on Virginia Q.XIV, 1782. ME 2:206. 35  Thomas Jefferson to John Tyler, 1810. ME 12:393. 36  Thomas Jefferson to John Adams, 1813. ME 13:400. 37  Thomas Jefferson to M. Correa de Serra, 1817. ME 15:156. 38  John Witherspoon, Collected Works (in 9 vols.), (Vision Forum, San Antonio, Texas), Vol. VII – Lectures on Divinity, Letters on Education and Marriage plus other items of interest. 39  The claim is made in a letter to Adams. I discuss the letter and Jefferson’s judgment in my “Jefferson and Adams on the Mind/Body Problem.” History of Psychology, 2003 Aug, Vol. 6(3): 227–38. 40  Destutt Tracy, A Commentary and Review of Montesquieu’s ‘Spirit of Laws’: To Which Are Annexed, Observations on the Thirty-First Book, by the late M. Condorcet: and Two Letters of Helvetius, On the Merits of the Same Work. Thomas Jefferson, trans., (Philadelphia: Wiliam Duane, 1811). 41  Ibid., Book IV. 42  Thomas Jefferson: Autobiography, 1821. ME 1:73. 43  Thomas Jefferson to William C. Jarvis, 1820. ME 15:278. 44  Adams, in a letter to H. Niles, 13 February 1818: “But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people.”. The letter can be accessed electronically via: www.constitution.org/primarysources/primarysources.html 45  John Witherspoon, Address to the Inhabitants of Jamaica and Other West India Islands, in Behalf of the College of New Jersey, in The Selected Writings of John Witherspoon, Thomas P. Miller, ed., (Southern Illinois University Press, 1990); p. 103. 46  Cicero, De Officiis, translated by Walter Miller, (Cambridge: Harvard University Press, 1913). 47  Alexis de Tocqueville, Democracy in America (1835), (New York: Library of America, 2004), p. 818.

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7

Constitutionalism and Its Presuppositions Hadley P. Arkes

I

n 1967, in a case called Loving v. Virginia,1 the Supreme Court struck down the famous laws on miscegenation, the laws that barred marriage across racial lines. But the opening sentence in that opinion, by Chief Justice Warren, must be one of the most embarrassing lines emitted by a figure of high standing in the vocation of jurisprudence. “This case,” said the Chief Justice, “presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the [Constitution].” A question never addressed before by the Supreme Court? The Court had never addressed a question involving racial discrimination or segregation? The Court had never addressed the question of marriage? It had addressed both questions, many times. Then what was the novelty? The Court was falling into the misunderstanding reflected in one great teacher of law I knew at the University of Chicago who mused aloud one day, in genuine puzzlement, as to how the Court could make its way from striking down racial segregation in the schools of Topeka, Kansas in Brown v. Board of Education and then move to strike down segregation in a public swimming pool. The wrong of racial segregation was cast, in Brown, as an injury done to children in schools, in impairing their capacity to learn. Now would the Court be saying that, in barring black children from public swimming pools, one was impressing them with a sense of inferiority that would impair their capacity to learn in school? What we were seeing here was the hazard of a

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Court, and a legislative strategy, that kept avoiding the question of principle in these cases. The wrong was made contingent on what happened in different settings where racial segregation was in place. That curious strategy invited the question: If we separated children in school on the basis of race and their reading scores went up, would the segregation have ceased to be wrong? Or would we be moved to say, rather, that the segregation was wrong in principle? Our case law on racial discrimination would become disfigured in later years as the mistakes accumulated and the Court never did come to a statement of what the wrong was in principle. I won’t take the trouble today to recount my own efforts over the years to restate the principle engaged here,2 but if we were clear in the first place on that principle, we would not have been in a state of puzzlement over the matter of swimming pools – we would not have had to invent a “constitutional right to swim” or a constitutional right to play tennis if black people had been barred from public tennis courts. We would simply have invoked a principle of logic and noted that the principle would be quite indifferent to the vast number of instances in which the principle may be manifested. If we know the principle by which the ball travels down the inclined plane as the angle of inclination becomes steeper, we know that it would cover wooden planes and plastic planes, steel balls and red balls. The segregation may be in swimming pools, tennis courts, libraries, drinking fountains, bathrooms – and they do not present us each time with novel cases. We would not say that this is the first time we have ever faced a question of racial segregation in access to Xerox machines. I once raised the question of what the case would have looked like if the law involved a statute that barred business partnerships across racial lines, and it worked to prevent two friends, black and white, from going into business together in a delicatessen. Would the Court have said that we have never had a case before on delicatessens? And when it struck down that law, would the decision have been taken to mark a “constitutional right to own a delicatessen”?3 It made as much sense to cite Loving v. Virginia as establishing a “right to marry” and using the case, misunderstood in that way, as a stepping stone leading to a “constitutional right to abortion.” For a jurist of high rank to say, in the Loving case, that the Court had never faced a question of that kind before is to betray the deepest confusion about the logic of principles on the part of a college of judges that has as its central mission the task of drawing out, explaining, and applying the principles of the Constitution. And of course there were principles there before the Constitution. They were the principles that told us why it was morally preferable and necessary that we live under a Constitution or the rule of law, and why it was more fitting for human beings to be ruled by a government dependent on “the consent of the governed.” To speak of a Constitution or

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the rule of law was to speak of a fundamental law that took precedence over ordinary law. How do we know, for example, that the making of a federal law requires the consent of two houses of the legislature and the approval of the Executive? The Constitution, or the “fundamental law,” is the “law” that tells us how we make laws. And what it marks is the awareness of certain deeper, moral principles that set limits and constraints on what legislators, and the people themselves, are free to enact as laws. When we trace the matter back in this way, we recognize that the logic would be there even if there were no written constitution. Everything would trace back to the logic of what Madison called a “moral agent,” the same creature described by Aristotle as unique among animals: it was the being that had the capacity to give and understand reasons over matters of right and wrong.4 He was a creature who could reason about the conditions of his own well-being and the well-being of others, and he had a presumptive claim then to the freedom to act on his own moral understanding. The burden would fall to the community to justify the restrictions on that freedom by showing that there was something wrongful about the way that freedom was being used. At the same time, this creature, as a moral agent, would have to recognize, as Aquinas and Abraham Lincoln explained to us in different ways, that we cannot coherently claim “a right to do a wrong.” If we say that it is morally wrong for a parent to torture his innocent infant, we mean that it would be wrong for anyone, for everyone. It could not be said, in that case, that the act was “wrong,” and yet that I may have a private right to do it. If it is wrong to kill anyone on the basis of race, it would be wrong even to kill myself for that reason if I discovered that I had an ancestor of the wrong race. In other words, it is the remarkable condition of a moral agent that, in having access to an understanding of right and wrong, he must understand the things he has no right to do even in the name of his own freedom, and even when it is done solely to himself. We had a term for that latter point, now widely forgotten: we used to speak about rights and wrongs so deep that we had no right to waive or alienate them even for ourselves. We called them “unalienable rights.” Plato said that the man with self-control had a constitutional ruler within himself. He understands that he is obliged to restrain his choices to that range of things legitimate for him to choose and to do. He is not weaker in being constrained in that way. A man with self-control, a man who foregoes to himself the things he ought not do, is not weaker, but stronger, for he can concentrate his powers now on that vast universe of ends legitimate to choose. And in the same way, a government under moral, constitutional restraints is not a weaker, but a stronger government, concentrating its powers on the things rightful for it to do.

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Lincoln famously remarked at Gettysburg that our fathers had brought forth this new nation “four score and seven years” earlier. If we count back 87 years from Gettysburg, in 1863, we end up in 1776, not 1789, with the beginning of the Constitution. For Lincoln and the Founders, the nation began with the Declaration of Independence and the articulation of that “proposition,” as Lincoln called it, the first principle among us: “all men are created equal.” The task of forming a Constitution was to arrange a structure of power that promised to produce a pattern of practice consistent, by and large, with those underlying principles that marked the character of the American regime. That first principle was understood to be an axiom; it rested on an “abstract truth,” as Lincoln said, “applicable to all men and all times.”5 It did not mean, as Lincoln said, that we were all equally intelligent and virtuous, and that the law could not treat differently the innocent and the guilty. It was genuinely a first principle, something that could be understood as true per se nota, revealing its own internal evidence, and I would state the matter in this way: That even in this age of animal rights, we do not sign labor contracts with our horses and cows, or seek the informed consent of our household pets before we authorize surgery on them; but we continue to think that beings who can give and understand reasons over matters of right and wrong deserve to be ruled with a rendering of reasons in a government that elicits their consent. As Aristotle explained to us at the very beginning of political philosophy, only a certain kind of creature is fitted to live in a polis, an association marked by the presence of law. Only one kind of creature can understand what it means to respect a law outside his own inclinations, or what it means to respect an obligation to a promise or a contract even when it no longer accords with his own interests or inclinations. And of course only one kind of creature then can frame propositions that can rightly command the respect and obedience of others because they are seen to rest on propositions that do not merely reflect the passions and preferences of the many. Those propositions can be put forth with a claim to bind because they can be understood for others as well as himself. I offer all of this to make the point that, before we even get to the notion of laws, and the deeper laws of a constitution, we need to remind ourselves of the attributes and the nature of that being who alone can bring forth the notion of laws and a Constitution. These arrangements can arise only from a creature of a certain nature, and a life of law can be managed day to day only by a creature of the same nature. That “human person,” as John Paul II called him, with all of his depth, is both the subject and the object of the laws. The laws must be made in contemplation of that creature – gifted with reason, but notably below the angels – and it can be administered only by creatures with

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these special gifts. And one of the most curious confirmations on that point is that we expect these creatures, even the most ordinary varieties of them, to know as a matter of course the kinds of things that Chief Justice Warren, in the Loving case, affected not to know. Patently, the Chief Justice had not grasped that the principle was quite indifferent to the instances in which the principle may be manifested. And yet we take it as inconceivable that the ordinary criminal, on the streets of Boston, could challenge us by asking, “Where does it say, in the laws of Massachusetts that it is wrong to steal computers, or that it is wrong to take even old cars, like 1950 Plymouths?” There is nothing of course in the laws naming these objects of theft. We apparently expect even the most illiterate member of homo sapiens to understand that if we are dealing with a wrongful taking of that which is not yours – also known as stealing or theft – that the principle would cover all instances, everything that could be stolen. The Founders mentioned in the Constitution the principle of “ex post facto” laws – laws that would make punishable, after their commission, acts that were not wrongful when they were done. Or they might be laws that enlarge the penalties on the same act, after it was done. As Chief Justice Marshall emphasized later, the principle on ex post facto laws was one of those deep principles bound up with the very idea of lawfulness. And as Marshall brought home to us in Fletcher v. Peck (1810),6 that principle did not depend at all for its validity on its mention in the text of the Constitution. But there is another dimension of the problem, curiously left masked, and yet recognized in discrete cases over the years by judges and legislatures, and it may be put in this way: What if legislatures and courts come forth with judgments prescribing punishments after the fact on the premise that people should have known, after all, that they were doing wrongful things? The Nuremberg prosecutions were dramatic examples on this point. So, too, was the law passed in Congress in 1978, barring from the country anyone who had been involved in war crimes in Europe in the life of the Nazi regime, 1933–1945. And yet what goes curiously unnoticed is that the same judgments are applied on ordinary persons every day in our law of torts, and the same burdens of understanding are routinely fastened. Private persons can routinely come into courts, suing for awards minor or major, for “wrongs” that were done to them, even if those wrongs had never been set down in statutes. We can only imagine the surprise of the first man who was sued, successfully, for giving his partner “herpes.” There were no statutes on the subject, nothing warning people that they could be violating something that stood as “law.” And yet, a judge speaking in the name of the law pronounces that a wrong has been done in the eyes of the law, and orders a penalty in the name of the law. The move makes sense only on the premise that “he should

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have known” – should have known even though the law had not signaled to him that he could be doing something wrong. What, exactly, should he have known to establish his liability? If he had known that he had the condition of herpes, and if he had known it was transmittable, it became plausible then to ask, What justifiable reason could he have had for not warning that person he was putting in danger? Once again, these are the things that we evidently expect ordinary people to know as we hold them responsible every day in actions for torts in our law, from the smallest injuries to the gravest. Some of us who traffic in what is known as the “natural-law” point out that the first principles of the natural-law are really provided by the “laws of reason” themselves, and they are indeed so self-evident, so woven in with our understanding, that we are often unaware of them. Immanuel Kant noted that the moral laws apply only in the domain of freedom, where people make practical choices, choosing one course of action rather than another. We cast no moral judgments on falling rocks, or events governed by the laws of nature. And so Thomas Reid could offer, as one of the truly first principles of our moral judgment a proposition I’ve recast in this way: that we may not hold people blameworthy or responsible for acts they are powerless to affect.7 That proposition will not only cover the insanity defense, but many other things as well, including certain phases of racial discrimination (where people suffer disabilities for conditions they were powerless to affect). This is a first principle of our law because it is drawn from the very logic of morals or a moral judgment, and it is one of those things that people evidently know without the need to be told. They know it as readily as they know the principle of identity, that they are the same persons today that they were yesterday. Mr. Brown may insist that he has become sobered, he has become quite a different man from the one who was caught embezzling a month ago, and to punish him, in his current state, is to punish someone else apart from the one who had committed the crime. I’m sure that Mr. Madoff, deeply chastened now, might be moved to say the same thing, except of course that he knows – and we know he knows – the truth of the matter. He is the same one who committed the crime. He also knows that he had the active powers to cause his own acts to happen, and even though he cannot know the minds of others, he imputes, quite rightly, to other people the same active powers to cause their own acts to happen. On those grounds only – with the premises of free will and moral agency – does the practical working of the law become possible. Without noticing any longer, we fold in the premise of human beings choosing consciously, having reasons for what they are doing, having the power to cause their own acts – and only on those grounds only do we set the stage for “trials,” for the finding of fault in legal forums. But of course to speak of a “trial” is already to speak of the framework in which we cast judgments

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of fault, of innocence and guilt. That is a distinctly moral framework, for it must begin by taking seriously that difference between innocence and guilt. As John Stuart Mill observed, we stop using the language of “like” and “dislike” and begin using the language of right and wrong when we think that people may rightly be punished for what they are doing.8 But with the same logic, our plan is to visit punishment only on the guilty, and we show our respect for the difference between innocence and guilt by insisting that we make those discriminations only by employing the canons of reason in the most strenuous way to test the evidence that is offered in proof of wrongdoing. We give the moral preference to the canons of reason rather than to those ancient methods often tested: having defendants run over hot coals, or by having women accused of witchcraft being dunked in water to see if they sink or float. To ask for evidence already implies that a verdict of guilty, incurring punishment, is a thing that has to be justified. It must turn critically on evidence of wrongdoing. But that simple point brought forth from James Wilson, one of our preeminent founders, a searching essay on “Evidence” as part of his famous Lectures on Law.9 Wilson’s launching point was that what stands as “evidence” depends critically on what is “evident” – what can be understood – by those beings who are charged with crimes or charged with judging them. The question of “evidence,” then, is the question of what human beings, as they are constituted, are capable of “knowing.” We may have absorbed by now the awareness of “evidence” as a common, even prosaic part of our lives. But as Wilson sought to teach us, the question of evidence revealed nothing less than the properties of mind, the properties of the human mind. At times, what is evident on the surface of things may not be genuine evidence of the wrongdoing. For people credulously open to experience it may seem obvious that having suspects run over hot coals or having them beaten around the head has been remarkably successful in eliciting confessions and, with them, convictions. But what seems evident on the surface may recede in its credibility as soon as we reason in a more disciplined way, and find grounds then to distrust the validity of those confessions that are elicited under duress, when the suspect is given to understand that the pain will end when he yields up the confession that the interrogators wish to hear. It takes a certain kind of reflection to grasp that what we see on the surface of things may not mean what it is often taken to mean, and only a certain kind of creature is capable of that reflection. Perception is not the same as cognition, or knowing. And what we know may not be strictly dependent on perception. Daniel Robinson reminds us of Augustine’s point on the chiliagon, the thousand-sided figure. We are not constituted to perceive figures of that refinement, seeing distinctly a thousand sides; but we are clearly capable of

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grasping the idea of a thousand-sided figure, just as we are capable of understanding the idea of a circle even though we have never seen one perfectly realized.10 We need at times our moral reasoning, or at least a more rigorous reasoning, to correct the impressions of our senses – or to connect them plausibly to any judgment we would render in the law. In that vein, I once had an exchange with my friend James Q. Wilson, who has been led in his ventures into moral judgment to favor a theory of moral sentiments: for example, that there are natural ties of sentiment and affection binding parents to their own children. True enough, and perhaps true even most of the time, but not true of necessity, as we have seen by the enduring examples of parents ordering up the killing of their own children, in infanticide and abortion. But Wilson thought that a woman contemplating an abortion should be compelled to look at the sonogram of the child she is carrying at that stage in her pregnancy. His hunch is that, as the pregnancy advances, most people will look at that screen, see what they plainly recognize as a child, and back away from the abortion.11 But his theory summons us to recall Kant’s warning that even a unanimity of feeling cannot offer a surrogate for moral judgment.12 Even if we were unanimous in our passion for coca-cola, we could not be warranted in making the coke compulsory. Feeling and tastes may be contingent and changing. If our laws on abortion turned decisively on the question of how that child in the womb “looked to me”; and if 95 percent of people looked at the sonogram and said, “That looks like a baby to me,” that could still not supply the ground for a law that barred the abortion for the 5 percent who looked at the screen and said, “Well it doesn’t look like a baby to me.” The question, though, is not what it looks like, but what it is, and whether there is any ground of principle for regarding that offspring in the womb as anything less than a human being. As we move to the ground of the law, perceptions alone may not provide the ground of justification for imposing a law on others and casting aside their personal perceptions and feelings. A law that binds all should supply, as the ground of its justification, propositions that hold their truth for others as well, even those who are not agreeing with the law. And yet, as the elder James Wilson noted, even people taking jurisprudence as their vocation have been lured in the past by theories of epistemology holding to the notion that evidence can be composed, at best, only of things we perceive. Wilson cited one of the leading authorities on the law of evidence in Britain, Baron Gilbert, who held to the doctrines of John Locke, “that knowledge is nothing but the perception of the agreement or disagreement of our ideas.”13 And so, as Wilson archly remarked: We have hitherto been apt, perhaps, with unphilosophick credulity,

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to imagine, that thought supposed a thinker; and that treason implied a traitor. But correct philosophy, it seems, discovers, that all this is a mistake; for that there may be treason without a traitor, laws without a legislator, punishment without a sufferer. If, in these cases, the ideas are the traitor, the legislator, the sufferer; the author of this discovery ought to inform us, whether ideas can converse together; whether they can possess rights, or be under obligations; whether they can make promises, enter into covenants, fulfill or break them.14 As Wilson would teach, coming in and going out, a regime of law requires us to reject decisively those theories of moral skepticism and relativism that have ever been seductive to people who have dabbled in philosophy and affect to have a liberal education. We begin by recognizing a real world, including a moral world, with rights and wrongs as real as rocks and trees. And so it reveals no dimness of mind to begin with the things that come visibly in sight, or come to us through our senses. As Wilson pointed out, in the presence of a doubting Thomas, Jesus bade him touch the wounds – feel directly himself – and from that evidence know that Jesus had indeed been put upon the cross. In drawing on the evidence of the senses, we touch the level of the most “natural” knowledge we seem to have, and yet we may neglect the depth of that knowledge. For we may touch here on what Thomas Reid called the ground of “natural language,” the things we had to know in order to do translations from one language to another. To a person who knows no English, I point to an object and say “book” or “telephone.” He needs no manual to instruct him that “we are now doing translations.” His natural understanding moves him to engage in translation even if he does not know the word “translation.” Drawing on that natural knowledge, we can tell the difference instantly between a smiling, warm, welcoming face, and a hostile expression. We know the difference between the crowd welcoming the White Sox back home after they won the World Series and a menacing crowd outside the home of the first black family who moved into the neighborhood. It became plausible to ask then, “When the actor Robert Blake heard that his wife had been murdered, had his face reflected shock, despair – or indifference?” And is that difference not telling – does it not reveal something that may bear on guilt and innocence? The point is that we are, as we are, constituted to understand things of this kind, and if we could not understand them, it is hard to imagine how we could form estimates of motives and judgments of guilt and innocence. When we consider testimony, the notable thing that may go unnoticed here is the disposition of people, in the first place, to come forward to tell what they know and to speak truly. What may be engaged is a natural sense

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of justice, a desire to see the rights and wrongs truly sorted out, so that the innocent are not wrongly punished. And we tend to think that when people do come forward in this way, they come forward to tell us the truth. As Wilson remarked, “Even the most consummate liar declares truths much more frequently than falsehoods.”15 My younger son and I, in a trip through Italy, stopped often to ask directions when driving through towns in Tuscany. We were among strangers, we did not know what the local conventions were for treating strangers, or how the locals found their mirth. For all we knew, it might have been a local sport to misdirect tourists who needed directions. And yet we assumed, quite rightly as it turned out, that the people offering the directions were telling the truth. They may have misdirected us at times, but they never betrayed a malicious willingness to mislead. It is also one of the most enduring – and overlooked – parts of our nature that we seek the guidance of people who know more than we do, and we have reason to defer to their authority. If we are not ourselves physicians, we seek out doctors who are respected for their skill and integrity. The British writer, Anthony Daniels recalls a conversation with a young woman, a social worker, on a flight to Dublin. She remarked on her recoil from the Catholic Church, and her rejection then of all forms of authority. “All forms?,” asked Daniels, “… So you don’t mind,” he went on, “if I now go to the cockpit of this aircraft and take over the controls.” She protested that there was a difference, for the authority of the pilot was based on experience and proper certification. “And who,” asked Dalrymple, “certified his knowledge and experience?”16 One of the strangest misunderstandings of democracy in this respect – and the most curious misreading of human nature – is that when people become part of a ruling legislature or take a place in the circles of power, their natural inclination is to act out their own reflexes or their animating passions. But John Stuart Mill caught something true in his Considerations on Representative Government when he remarked that anyone would feel a fool at being excluded and regarded as of no account at all. But “only a fool of peculiar description, feels offended by the acknowledgment that there are others whose opinions, and even whose wish, is entitled to a greater amount of respect than his.”17 And so, as Tocqueville noted, people cannot long be members of these groups without finding out how order is maintained among a large number of men and by what contrivance they are made to advance, harmoniously and methodically, to the same object. Thus they learn to surrender their own will to that of all the rest and to make their own exertions subordinate to a common impulse.18

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But again, this is part of the repertoire of that creature who alone has the competence to deliberate about the making of laws, because he alone can understand what it means to respect an obligation that may not accord at all times with his interests. As Aristotle taught us, what is distinctive to human beings is the capacity to give and understand reasons over matters of right and wrong.19 That is what Aristotle meant by the faculty of “language” – not merely the capacity to make sounds to indicate pleasure or pain, but to give reasons or justifications for the measures they would impose on others as law. And of course, language is the mark of a distinctly “social” animal. It cannot be cultivated in solitude. James Wilson, in his lectures on law, draws out the implications that spring from that nature of humans as social animals, implications so evident that they often go unseen. Wilson took as a leading example the notion of contracts, of making promises. Daniel Webster pointed out that the form of contracts may depend on the laws of the place in which they are made, but the logic of a contract is part, he said, of a “universal law.” The obligation springs from the act of promising and making people vulnerable in turn to the prospect that the promise will be kept. Even people stranded on desert islands make promises to each other, they stake their lives on the prospect that the promise will be honored, and the obligations generated in that way have been upheld when the survivors returned to the mainland.20 One of the dimensions of that distinctly “social” character, rarely noticed, was caught in an odd way by the historian Macaulay in a critical review of John Croker’s edition of Boswell’s Life of Johnson in 1831. Remarking on different parts of the character of Samuel Johnson, Macaulay noted that: [Johnson] was not much moved even by the spectacle of Lady Tavistock dying of a broken heart for the loss of her lord. Such grief he considered as a luxury reserved for the idle and the wealthy. A washerwoman, left a widow with nine small children, would not have sobbed herself to death.21 Beyond the want of sympathy here for a woman who missed the husband she loved, there was a profound, high view of the human condition, and it touched on what President Reagan used to call the heroism of ordinary life: A widow left largely on her own summons the strength to do what is in her power to do to hold things together. And she accepts deep privations, in her standard of living and her liberty, in order to care for those children. I have heard stories of teenagers raised in households of the affluent and educated, but cultivating the most refined anguish and actually cutting themselves in despair. That despair may really grip them, but it may also be a luxury that cannot be afforded by people in straitened, truly desperate circumstances,

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with vulnerable lives depending on them. That widow with nine children could not afford to give in to that despair. Once again, this is a story to be told only among creatures who have a sense of obligation that overpowers their inclination to seek their own comfort – or safety. It is the only thing that can explain that letter written home by a soldier on the Union side during the civil war, responding to the wife who told him that he was needed back home. And he said, “what is home with all its endearments, if we have not a country freed from the very vestige of the anarchy, and the tyrannical and blood thirsty despotism which threatens … to overwhelm us?” A 33-year-old sergeant from Minnesota, the father of three children, wrote back to his wife to justify his continuing in the service: My grandfather fought and risked his life to bequeath to his posterity … the glorious Institutions [threatened by] this infernal rebellion … It is not for you and I, or us & our dear little ones, along, that I was and am willing to risk the fortunes of the battlefield, but also for the sake the country’s millions who are to come after us.22 In my own case, it is a hard fact that my family and I are alive today only because of people who risked and gave their lives in the Second World War. Through grand luck we found ourselves safely removed to America, and we live in a regime of constitutional freedom thanks to these monumental acts of conviction and sacrifice, and to the comparable gifts made by those Union soldiers in the Civil War. I am not embarrassed to say that the reading of those letters written by those men is something that still brings me close to tears. For they reveal again those people who were willing to risk their lives in order to preserve this regime of freedom as a gift even for people not of their families, people of another generation they could not possibly know. If we say that a regime of law begins with the nature of that creature who alone can understand an obligation, it must take that measure to a sublime level when we find people willing to give up their lives out of a respect for the goodness in principle of that kind of regime, and their obligation to preserve it enduringly for those who would come later, as the enduring good it is. Their sacrifice would make no sense if the good of this regime were thought to be only an ephemeral good, flaring only in certain historic epochs, and not something we can know to be, in truth, enduringly good. All of this comes down then to that matter of the “human person.” As Lincoln said, the question is “whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of selfgovernment, do just as he pleases with him. But if the negro is a man … why then my ancient faith teaches me that ‘all men are created equal’ …”23

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Or as Harry Jaffa put it, the question of whether a black man is a human is not a “value judgment”: it does not depend on whether any of us, or most of us, happen to “value” his life or are willing to regard him as human. It depends on the objective truth of the matter, whether black people are indeed human. And yet we saw in the past that facile move that has endured even in our own day, and even among people with pricey educations: a willingness to remove whole classes of people from the domain of rights-bearing beings through the simple device of switching the labels and describing them in a different way. That is not a human being, just like the beings we know as human; that’s a “nigger.” That is not a human person, protected by the law; that’s a “fetus” or an “embryo.” It may always be convenient to slip people easily out of the domain of rights-bearing beings when it accords with our self-interest. But we might see the problem in another light when we approach it from this angle: This regime of law and natural liberty begins, as I have said, with the premise that those beings we call moral agents – those beings who can deliberate about their own wellbeing – have a presumptive claim to all dimensions of their freedom as they act on their moral sense. The burden falls to the government when it would restrict that freedom, take their property in taxation, or take their lives. But then how could it be that the government is required to come forth with the most compelling justifications when it would restrict the liberty or take the property of people, and yet not be compelled to come forward with justifications even more demanding when it makes the move, even more audacious, to remove a whole class of human beings, in a stroke, from the very class of rights-bearing beings? In my book Natural Rights and the Right to Choose, I recalled the scene after the shootings at an abortion clinic in Brookline, Massachusetts: there was a candlelight vigil, and one woman bearing a candle carried also her newborn daughter. She was there to preserve for her newborn daughter, she said, the same “reproductive rights” she had enjoyed – including, of course, the right to destroy that child up through the time of birth.24 That declaration had to bring the question: Were those “reproductive rights” a species of “natural rights”? As James Wilson said, natural rights begin as soon as we begin to be, which is why, he said, “in the contemplation of law, life begins when the infant is first able to stir in the womb.”25 If those reproductive rights were a species of natural rights, the newborn daughter actually had those rights as soon as she began to be – which is to say, she had them when she was already in the womb. But in that case, her mother could not have been warranted in simply sweeping away her “reproductive rights,” along with all other rights, through the simple expedient of sweeping away, in a stroke, the bearer of those rights.

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Obviously that was not the account of rights that this new mother had in mind. The only account left was that the mother, in a grand Nietzschean gesture said, “I now confer upon you rights, including your right to live, because there is nothing about you incompatible with my interests.” Now if that is the account of how we acquire our rights in the beginning, it should be clear that rights will have been stripped of their moral logic. They do not begin with any recognition of the child herself, as a being with intrinsic dignity, whose nature entails in turn rights of an intrinsic dignity. Stripped of that logic, the right to abortion becomes nothing more than a right conferred by those with the power to confer it, and that right may be withdrawn in turn when it no long serves the utility or interests of those with the power to confer or withdraw it. Again, my concern here is with that question of “the human person” –that bearer of rights bound up with its very nature, and bound up inescapably with the logic of a constitutional order. In his classic studies of Lincoln, Professor Harry Jaffa drew from Lincoln’s teaching this foundational lesson: that a free people should be obliged to respect, in the first instance, the moral premises on which its own freedom rests. People claim a right to vote only on that premise of “all men are created equal,” that the only rightful government over human beings depends on the consent of the governed. It is a massive act of incoherence for a people licensed to vote in that way to use their votes to enslave other men, for as Lincoln showed, there is no ground to justify the enslavement of black people that would not apply to many whites as well. And some of us have sought with the same reasoning to show that there is nothing one could cite to withdraw the protections of the law from children in the womb that would not apply quite as well to many people walking about well outside the womb. To understand the ground of one’s own rights one should understand the ground on which those rights attach even to those human beings still in the womb. We find many people in the country illegally who wish to become citizens. In fact, they claim a right to become citizens. But since they are not citizens now, those rights they claim cannot flow to them through any rights they possess as citizens. They must be invoking a body of rights, not dependent on the laws of any particular place. They must be invoking – dare we say it? – some notion of “natural rights.” But in that case, can we not put at least this question to them about the moral terms on which we live together?: Are they prepared at least to support a regime of citizens? That is, when they go into a voting booth to pull the lever, do they understand that they are not merely choosing candidates and policies, but that they are affirming the rightness of that regime of voting? Do they understand that they are affirming the equal rights of people around them to have access to the same vote in a regime of

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elections? Such has not always been the case. In Germany in 1932 people went to the polls willing to strip some of the people around them, not only of their voting rights, but of their civil and natural rights. When people join us now as citizens do they understand that they have an obligation not to vote for the kinds of political parties that will strip their fellow citizens of their right to be protected by the law in their lives and yes, in their right not to have their property confiscated? Do they understand that they are no more permitted to vote away these rights for others than they are permitted to vote away the rights of their children and themselves to a regime of voting? Do they understand, that is, the notion of rights so deep, so grounded in nature, that they may not be alienated or waived, even for oneself? James Wilson and many of the Founders understood that the first principles of our political life are grasped as the first principles of our understanding, often instantly accessible to ordinary people without a college education. Ordinary people readily understand that it is wrong to hold people blameworthy for acts they were powerless to affect. They understand that people should be responsible for the wrongs only they do, not the wrongs done by their family or by other members of the race. But the Founders also understood that not all of the moral and logical presuppositions of a constitutional order were quickly or widely understood. As Aquinas reminded us, self-evident truths were not always evident to every self happening down the street. As with much else in human life, those understandings required the kind of cultivation and education that is possible only for human beings. The test of a good political regime was whether it managed to impart that understanding to the people who would preserve a regime of freedom and constitutional restraint. But in that project, a government and a people could misinstruct one another through the policies they are content to put in place and sustain over the years, as we have been amply misintructed already. The test for us right now is whether we can bring forth a political class that could teach anew what was taught so ably by that first generation of the American Founders, and whether we as a people have our souls in a condition in which we can receive that teaching anew, and recognize it when we hear it again.

Notes 1  388 U.S 1, at 2 (1967). 2  See, for example, Arkes, First Things (Princeton: Princeton University Press, 1986) pp. 92–9; Arkes, The Philosopher in the City (Princeton: Princeton University Press, 1981), pp. 222–46, especially, 239–43. 3  See First Things, pp. 343–5.

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4

See Aristotle, Politics, 1253a.

5  Lincoln, Letter to Henry L. Pierce and others (April 6, 1859) in The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick: Rutgers University Press, 1953), Vol. 3, p. 375. 6

6 Cranch 87.

7  As Reid put it, “what is done from unavoidable necessity cannot be the object either of blame or moral approbation.” Thomas Reid, Essays on the Active Powers of the Human Mind (Cambridge: MIT Press, 1969) [1788], p. 361. 8  John Stuart Mill, Utilitarianism (Indianapolis: Bobbs-Merrill, 1957 [1861]), p. 61. 9  See “The Nature and Philosophy of Evidence,” in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge: Harvard University Press, 1967), Vol. I, pp. 369–98. 10  See Daniel N. Robinson, “On the Evident, the Self-Evident, and the (Merely) Factual,” in American Journal of Jurisprudence, 2002, vol. 47, pp. 197–210. 11  See James Q. Wilson’s “On Abortion,” in Commentary (January 1994), pp. 21–9, and my own response in “Abortion Facts and Feelings,” in First Things (April 1994), pp. 34–8. 12  See Immanuel Kant, Critique of Practical Reason [1788], trans. Lewis White Beck (Indianapolis: Bobbs-Merrill, 1956), p. 26: “But suppose that finite rational beings were unanimous in the kind of objects their feelings of pleasure and pain had, and even in the means of obtaining the former and preventing the latter. Even then they could not set up the principle of self-love as a practical law, for the unanimity itself would be merely contingent. The determining practical ground would still be only subjectively valid and empirical, and it would not have the necessity which is conceived in every law, an objective necessity arising from a priori grounds. 13  Wilson, “Of Man as an Individual,” in supra, note 9, at p. 221. 14   Ibid., p. 215. 15   Ibid., p. 385. 16  Daniels, writing under his pen name Theodore Dalrymple, In Praise of Prejudice: The Necessity of Preconceived Ideas (New York: Encounter Books, 2007). 17  Mill, Considerations on Representative Government [1861] (Indianpolis: Bobbs-Merrill, 1958), p. 137. 18 Tocqueville, “Relation of Civil to Political Associations,” in Democracy in America (New York: Alfred Knopf edition, 1945), Vol. II, p. 124. 19  Aristotle supra, note 4. 20  See Webster’s brief in Fletcher v. Peck, 6 Cranch 87 (1810). 21  From Macaulay’s review essay in The Edinburgh Review (1831), and found at this address on the web: http://ethnicity.rutgers.edu/~jlynch/Texts/ macaulay.html

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22  See James McPherson, What They Fought For (New York: Doubleday, 1995), pp. 27–46, esp. pp. 33, 29–30.  23 Abraham Lincoln, Speech at Peoria (October 16, 1854) in The Collected Works of Abraham Lincoln, (ed) Roy P. Basler (New Brunswick: Rutgers University Press, 1953), Vol. 2, pp. 265–6. 24 See Arkes, Natural Rights and the Right to Choose (New York: Cambridge University Press, 2002), pp. 179–81. 25 See Wilson, “Of the Natural Rights of Individuals,” in supra, note 9, pp. 585, 591.

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Index Page numbers in italics indicate a figure; an “n.” after a page number indicates an endnote. abortion 55, 141–2 complexities 7 emotion and 136 accidents, intentionality and 16, 18n. 18 Ackrill, J. L. 18n. 19 Adair, Douglass 50n. 18, 126n. 21 Adams, Abigail 26, 32, 34n. 7, 47, 105 Adams, Charles Francis 75n. 55 Adams, John x, 23, 26, 29, 32, 34n. 7, 36, 38–9, 40, 41, 42, 44, 46, 47, 48n. 4, 49n. 11, 49–50n. 17, 50n. 18, 68–9, 75n. 55, 109, 113, 115–16, 118, 120, 121, 123, 126n. 21, 126n. 26, 126n. 27, 127n. 33, 127n. 36, 127n. 39, 127n. 44 Adams, John Quincy 36, 48n. 4 Adams, Samuel 25–6, 39, 40 Addison, Joseph 37–8 Age of Reason, The 113–14 Allen, Rev. Ethan 33n. 3 Alley, Robert S. 33n. 6 amalgam disparities 63, 65–6, 67, 75n. 52 scope 65, 66–7 “America,” liberty and 28, 34n. 11 American Civil War 140 American Revolution see Revolution Anglicans, attacks on Baptists 24, 25 animal instinct, liberty and 30 animal rights 132 Annis, Verle L. 102n. 12 Antigua (Guatemala) 86, 86–7, 102n. 12 Appleby, Joyce O. 51n. 30 architecture x, 77, 80, 82, 85, 87, 98 authority and 90, 96

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family residences 89 scope 87 classical origins 94, 99–100 discreteness 78, 82 family residences 100 imbalances 78 landscape and 94–5 limitations 100 perspective 82–3 pictographs 84, 84 precedent and 78, 79, 98–101 scope 89–90, 92, 100–1 underemphasis 79 Aristotle 2, 3, 14, 18n. 19, 35–6, 44, 45, 46, 79, 80, 131, 132, 139, 144n. 4, 144n. 19 Arkes, Hadley P. ix, x, xi, 1, 129–45 armed forces 61 arms, use of 68–9 Artz, Frederick B. 51n. 26 assault and battery 17n. 6 Athens 39 Augustus Caesar 41 Bacon, Francis 42, 105, 112 Bailyn, Bernard 50n. 19 Baptistery (Florence) 83 Baptists attacks by Anglicans 24, 25 underemphasis 25 written and unwritten rights 24–5 Barlow, Sally H. xii Barrios, Pedro Pablo Godoy 86 Basler, Roy P. 144n. 5, 145n. 23 Bedini, Silvio A. 51–2n. 34 Bennett, Edward H. 103n. 22 Bennett, William J. 34n. 9 Bergh, Albert 125n. 2

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Bergh, Albert Ellery 50n. 21 Bible x, 123 cities and 81 disparities 111, 113 liberty and 28 Bills of Rights 25, 59, 114–15 blamelessness, knowledge and 134 Bland, Richard 75n. 56 Blankenhorn, David 73n. 41 Blount, Charles 111 Bobrick, Benson 34n. 12 Book of Common Prayer, The 26 Boswell, James 139 Boulanger, Nicolas Antoine 113 Bowen, Catherine Drinker 34 Boyd, Julian P. 103n. 18 Boyd, Julian P. et al. 48n. 4, 48–9n. 6, 72–3n. 32 Boyle, Jr., Joseph M. 17n. 4, 18n. 17 Bramante, Donato 99 Brant, Irving 48n. 2 Brunelleschi, Filippo 82, 83, 101n. 6, 102n. 7 Brutus 42 Buissert, David 102n. 9 Bunker Hill 32–3, 34n. 12 Burgoyne, John 40 Burke, Edmund 114, 117, 121, 127n. 32 Burnham, Daniel H. 103n. 22 Burr, Aaron 36, 42 Burton, Robert 111, 112, 126n. 14, 126n. 18 Butterfield, L. H. 48n. 4, 49n. 11, 49n. 12 Cabell, Joseph C. 102n. 15 Cain 81 Cappon, Lester J. 49–50n. 17 Carroll, John 66, 74n. 49 Cary, John 49n. 16 Catholicism amalgam and 66 liberty and 18n. 16 natural-law and 12 primacy, disbelief, and 108 Cato 37–8 Cato the Younger 37–8, 40, 41, 42

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Ceaser, James W. 53, 70n. 3 Charles I 42 Charlestown 32 Chicago 98, 103n. 22 children abortion 7, 55, 136, 141–2 education and 106, 118, 122, 129, 130 emotion and 136 endurance and 139–40 equality and 58 Chinard, Gilbert 50n. 19, 51n. 31, 116–17 Christianity disparities 109 human dignity and 108 monarchy and 113 primacy, disbelief, and 22–3, 33n. 3, 107–10, 113 reason and 113–14 scope 19, 20–1, 23, 33n. 4, 108 see also individual terms Cicero 2, 35, 37, 38–9, 41, 42, 44, 45, 46, 47, 116, 124, 127n. 46 Cincinnatus 37, 46 cities x, 86, 102n. 10, 102n. 12, 105 authority and 77–8, 82, 85, 88, 89, 96 scope 77, 84, 87 biblical origins 81 classical origins law and 80–1 names from 79 oppression from 80 pleasure and happiness in 80 scope 79, 80 urban life 79–81 constraints on 87–8 disparities 96–7 geometry and 83, 86, 86–7, 89, 90, 95–6, 97 individuals and 101 landscape and 83, 90, 91–3, 94–5, 97, 98 law and 81 limitations 100 love and 81, 82 nature and 91, 92–3

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Index origins 90 pictographs 83–4, 84 precedent and 100–1 scope 78 primacy 77 scope 77–8, 82, 84, 85, 88–90, 91, 97, 98, 100–1 suburban expansion in 97–8 urban life 85 urban renewal in 97–8 see also individual names; architecture citizenship disparities 142 enfranchisement and 142–3 City Beautiful Movement 98 city hall (Florence) 83 City of God, city of man and 81–3 civic life scope ix–x, 111–12 underemphasis ix see also individual terms Claeys, Eric R. 74n. 43 Clarke, Samuel 110 class, education and 118, 120 classics x, 47 allusions pseudonyms 37 scope 36 antimodels from 41 cities 79–81 disparities 116–17 education and 35–6, 48n. 3, 115, 116, 120, 124 endurance and 47 governmental antimodels from 43 autopsy and 43 conspiracy and 43–4 corruption and 41–2 federalism and 43 taxes and 41 governmental models from 39 liberty and 39–40 mixed-governmental models from federalism and 46 scope 45 popular sovereignty and 44 reciprocity 47–8

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role models from 37–8, 40–1 mutiny and 38 oration and 38–9, 40 precedent and 44 resignation and 37 sacrifice and 38, 39 rural models from 46–7 scope 35, 44, 94, 99–100, 123 societal antimodels from, slavery and 43 societal models from 39 underemphasis 115 virtue and 36, 47 Clinton, Hillary 54, 70n. 7 Clodius 116 Cohen, Lester H. 34n. 12 collectivism 5–6 Commager, H. S. 126n. 22, 126n. 23, 126n. 24 common law 61, 124 disparities 133 evidence and 135 guilt and 134–5 individuals and 94 liberty and 134 precedent and 129, 130 race and 129–30 scope 115, 132–3 selectivity and 66 Conant, James B. 102n. 15, 103n. 17 Congress 25, 28 Continental Congresses 25–6, 118 fasting and 26–7 men as humanity 57 power, mutiny, and 38 prayer and 26–7 thanksgiving and 27 Conkin, Paul K. 51n. 27, 51n. 32, 109, 125n. 8 conscience 21–2 liberty and 23 judgment and 32 consensus, individuals and 56 conspiracy 43–4 constitutionalism x disparities 133 findings after the fact 133 knowledge and 133–4

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150 Index



inception 132 misunderstanding 143 precedent and 130 primacy 130–1 scope 131, 132–3 written and unwritten, popular consent, and 44–5 see also individual terms Continental Congresses 118 prayer and 25–6 rights and 25 contracts 139 Correa de Serra, M. 119, 127n. 37 corruption 41–2, 107 disparities 42 overemphasis 41 Croker, John 139 Croly, Herbert 74n. 44 Cromwell, Oliver 42 Cunliffe, Marcus 49n. 7 Cushing, Harry Alonzo 50n. 18, 50n. 19 Custis, Martha 47 Dalrymple, Theodore 144n. 16 Daniels, Anthony 138, 144n. 16 Davidson, Edward H. 126n. 19, 126n. 20 Davis, Richard Beale 48n. 2, 52n. 34 De Officiis 124 Declaration of Independence 1, 2, 20, 28, 53, 123 disparities 60 key terms 57–8, 59–60, 62 misunderstanding 55 documents and 55–6 European philosophers and 56 primacy 56–7 redefined 55 scope 2, 34n. 10, 57 Declarations and Resolves 57, 68 Declarations of Rights 57 Deism complexities 110–11 disparities 110, 111 reason and 111–13 scope 111 Dell, Floyd 126n. 14

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democracy 46 Democratic-Republicans 46 corruption and 42 Demosthenes 38 Destutt, Count Tracy 119, 127n. 40, 127n. 41 Dethloff, Henry C. 51n. 30 Dewey, John 64, 74n. 44 Dickinson, John 38–9, 41, 43, 46 Dods, Marcus 101n. 3 Driesbach, Daniel L. 33n. 4 Duché, Rev. Jacob 25–6 duty 22, 59, 60 Eadie, John W. 48n. 3 earning 8–9 Eden, Robert 74n. 43 education 48n. 3, 116 complexities 6 disparities 122, 125, 129, 130 financial means and 119, 120, 121, 122 human dignity and 106 individualism and 122, 124–5 knowledge from 106, 124 landscape and 93 learning from 106 liberty and 120 limitations ix precedent and 143 primacy x, 107, 115–16, 117–19 prioritization 36 scope 35–6, 106, 108–9, 119–21, 122, 123, 124 underemphasis 115 Edwards, Jonathan 110 Ellis, Joseph J. 125n. 7 Ellul, Jacques 101n. 2 Elshtain, Jean Bethke 73n. 41 Emerson, Roger 110, 126n. 13, 126n. 15 Emmons, Nathanael 106, 125n. 3 emotion 144n. 12 disparities 136 endurance 47 disparities 139–40 enfranchisement 69, 93–4 equality and 142–3

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Index Engeman, Thomas S. 74n. 50 Enoch 81, 91 Episcopalians, prayer from 25–6 equality 1 complexities 121 disparities 54. 60–1, 142–3 labeling and 141 liberty and 57 men as humanity in 57 popular consent and 62 redefined 55 scope 57–8, 114, 132, 140–1 Euclid 35–6 euthanasia 7 Evennett, H. Outram 51n. 26 evidence knowledge and 135, 137 perception and 136–7 reason and 135–6 ex post facto laws 133–4 Fairfax, Sally 47 family life limitations ix women and 54 family residences 89 precedent and 100 Farrand, Max 50n. 23, 51n. 25, 51n. 29 fasting 26–7 federal agencies, discrimination and 70–1n. 12 federalism 43, 46 Federalist, The 27, 29–30 Federer, William J. 34n. 7 Filarete 83, 102n. 8 financial means, education and 119, 120, 121 power and 122 Finnis, John 8, 12, 14, 17n. 4, 18n. 9, 18n. 12, 18n. 13, 18n. 15 Fitch, Samuel 115 Fitzpatrick, John C. 49n. 9 Flannery, O. P. Austin 18n. 16 Flexner, James Thomas 49n. 8, 51n. 33 Florence 83–5, 84, 85, 102n. 10 Florence Cathedral 82

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fog 27 Ford, Paul Leicester 49n. 8, 51n. 29 Ford, Worthington C. 71n. 18 France 105–6, 109 Franklin, Benjamin 106 free association 62–3 freedom see liberty Frei, Hans 110, 126n. 10 French Revolution 53 Friedman, David 102n. 10 friendship cognition in 3, 4 liberty and 28 primacy 4 Gadsden, Christopher 42 Galston, William A. 64, 65, 66, 73n. 41, 73n. 42 Gantt, Edward xii geometry 82, 83, 86, 86–7, 89, 90, 94–6, 97 George, Robert P. ix, xi, 1–18 George III 23–4, 25, 41, 42 Germany 143 Gettysburg Address 1, 2, 132 Gibson, Alan 73n. 38 Gilbert, Baron Jeffrey 136 Gildon, Charles 111–12, 126n. 16, 126n. 17 Glaucon 79, 80, 100, 101 Glendon, Mary Ann 70n. 2 God 10–11, 29 cities and 81–2 conscience and 32 covenant with 26–7 denominational 20 disunity and 27 duty and 22 liberty and 28–9, 34n. 11 names for 19, 28 power and 7–8 Providence and 27–8, 34n. 9 reason and 114 rights and 21 scope 31 Govan, Thomas P. 50n. 21 government 60, 61–3, 115 see also individual terms

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152 Index

Grace 81 Great Seal 123 Greek classics see classics Gridley, Benjamin 115 grief 139 Grisez, Germain 14, 17n. 4, 18n. 17 Griswold, A. Whitney 51n. 30 guilt, innocence and 134–5 reason and 135 Gummere, Richard M. 48n. 1, 48n. 3, 50n. 18, 50n. 19 Gutheim, Frederick 103n. 20 Guthkelch, A. C. 49n. 9, 49n. 10 Habermas, Jürgen 107, 108, 125n. 5 Hale, Nathan 38 Hall, Kermit L. 72n. 20, 126–7n. 28 Hall, Mark David 72n. 20, 126–7n. 28 Hamburger, Philip 74n. 45 Hamilton, Alexander 37, 42, 46, 50n. 22, 51n. 25, 51n. 29, 56, 67, 72n. 27, 75n. 52, 95 Hancock, John 123 Hanley, Thomas O. 74n. 49 happiness pleasure and 80 reason and 111–12 self-denial and 119 harm intentionality and 16, 18n. 18 killing and maiming 7, 13, 16 scope 16 Harrington, James 44 health care 6 Henry, Patrick 25, 26, 38, 40, 42 Herodotus 36 Herrera, María Fernanda Sánchez 86 Hiden, Martha W. 48n. 3 Hobbes, Thomas 9, 18n. 11, 111 Hofstadter, Richard 48n. 3 Holbach, Baron d’ 113 Homer 35–6 homosexuality 54 Horace 35, 37, 46 Horowitz, Maryanne Cline 51n. 32 human dignity disparities 13 education and 106

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human imperfection and 13 power and 7–8, 9 reason and 8–9, 11, 18n. 12 scope 108 human rights assault and battery and 17n. 6 collectivism in 5–6 complexities 5, 7, 17n. 6 disparities 12–13, 54 education and 6 health care and 6 human imperfection and 10, 13 individualism in 5, 6 killing and maiming 7, 13, 16 liberty in 12, 13 reason and 11 scope 5, 6, 54 slavery and 6–7, 10 Hume, David 9, 14, 18n. 10, 18n. 12 Hurtt, Steven 103n. 19 Hutson, James H. 33n. 3, 33n. 4 Hyneman, Charles S. 74n. 49 identity, knowledge and 134 independence 59 liberty and 59–60 oration and 38–9 individualism 63 individuals and 122 limitations 5, 6 threats from 124–5 innocence, guilt and 134–5 reason and 135 Isaac, Rhys 88 Islam 13 Jackson 97, 97 Jacob, Margaret 126n. 12 Jaffa, Harry V. 102n. 14, 141, 142 Jamestown 87–8 Jarvis, William C. 127n. 43 Jay, John 26, 51n. 25, 51n. 29, 72n. 27 Jefferson, Martha Wayles Skelton 48n. 4 Jefferson, Thomas 2–3, 20, 21, 22–3, 24–5, 28, 31, 33n. 3, 33n. 4, 36, 37, 39, 40, 41, 42, 46–7,

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Index 48n. 4, 48–9n. 6, 49–50n. 17, 50n. 21, 51n. 31, 55, 56, 61, 69, 70n. 10, 72–3n. 32, 75n. 57, 92, 92, 93–4, 95, 97, 99, 100, 102n. 15, 102n. 16, 103n. 18, 105–6, 110, 118–19, 120, 121, 122, 125n. 1, 127n. 34, 127n. 35, 127n. 36, 127n. 37, 127n. 39, 127n. 40, 127n. 42, 127n. 43 Jensen, Merrill 73n. 34 Jerusalem 80–1 Jesus Christ 137 John Paul II 132 Johnson, Lyndon B. 65 Johnson, Samuel 139 Jordan-Smith, Paul 126n. 14 Judaism 20 cities 80–1 conscience and 32 liberty and 23, 28 names from 19 prayer from 26 rights and 21 scope 31 underemphasis 20 virtue and 30–1 judgment conscience, liberty, and 32 underemphasis 24 virtue, transparency, and 30–1 Julius Caesar 36, 37, 41, 42, 43 Kant, Immanuel 6, 15, 17, 63, 64, 134, 136, 144n. 12 Kerber, Linda K. 48n. 4, 49n. 13 Kersch, Ken I. 74n. 43 Kesler, Charles R. 72n. 27, 74n. 43 Ketcham, Ralph 49n. 14 killing 7, 13, 16 Kimball, Fiske 49n. 6 knowledge 106 authority and 138 cognition in 3–4 disparities 14, 133–4 moral 4, 17n. 2 natural 137 primacy 4

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scope 112, 124, 134, 135, 137 truth and 137–8 Kurland, Philip B. 33n. 2, 71n. 18, 72n. 25, 72n. 26 labeling, equality and 141 Lafayette, Marquis de 75n. 52 landscape 83, 88, 94–5, 98 education and 93 enfranchisement and 93–4 geometry and 94–5 liberty and 94 monarchy and 94–5 scope 90, 93, 97 types 88, 91–3 walls and 91 Langdon, Samuel 34n. 9, 106–7, 125n. 4 language natural 137 scope 139 law Grace and 81 scope 80–1 underemphasis 24 see also common law; constitutionalism; laws of nature laws of nature common law and 66 imbalances 69 duty and 59, 60 independence and 59–60 natural rights and 60, 62–3, 72n. 25 scope 68 use of arms and 68–9 see also natural-law learning 106 history and 122, 123 Lee, Antoinette J. 103n. 20 Lee, Charles 40 Lee, Richard Henry 2, 26 Lehmann, Karl 49n. 6, 51n. 31 Lemay, J. A. Leo 126n. 13, 126n. 15 L’Enfant, Pierre Charles 94, 95, 96 Lerner, Ralph 33n. 2, 71n. 18, 72n. 25, 72n. 26 L’Estrange, Roger 47

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154 Index

Lexington 32 liberty 1, 18n. 16, 18n. 17, 28–9, 34n. 11, 39–40, 59–60, 94, 122–3 animal instinct and 30 complexities 29–30 conscience and 23 judgment and 32 constraints on 67 disparities 12, 13, 21, 54, 63–5, 131, 141 disunity and 30 education and 120 equality and 57 experiment on 2 friendship and 28 future generations and 140 limitations 31 primacy 23 reason and 11 complexities 15 redefined 55, 71n. 13 scope 21, 30, 58, 63, 114, 125, 134, 142 self-control and 131 threats to 124–5, 140 underemphasis 24 virtue and 30 vulnerabilities 33 Lincoln, Abraham 1, 2, 70n. 8, 85, 131, 132, 140, 142, 144n. 5, 145n. 23 Lipscomb, Andrew A. 50n. 21, 125n. 2 Livy 44 Locke, John 2, 34n. 11, 42, 44, 56, 63, 64, 105, 110, 111, 112, 136 Logan County Court House 98, 98 London 105 Lonergan, Bernard J. F. 3, 17n. 1 Long Island 27 Lorenzo de’Medici 85 Louis XIV 99 Louisiana 46–7 love 82 scope 81 Lowic, Lawrence 101n. 5 Lucantonio degli Uberti 85 Luther, Martin 110–11

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Lutz, Christopher 102n. 12 Lutz, Donald S. 71n. 17, 74n. 49 Macaulay, Thomas Babington 139, 144n. 21 McCloskey, Robert Green 49n. 15, 51n. 29, 144n. 9 McDermott, Gerald 110, 125n. 9, 126n. 11 McDonald, Forrest 49n. 8 McLachlan, James 48n. 3 McPherson, James 145n. 22 Madison, James 20, 21–2, 24–5, 33n. 2, 33–4n. 6, 36, 43, 46, 48n. 2, 48–9n. 6, 51n. 25, 51n. 29, 56, 60, 72n. 27, 122, 124, 131 Madoff, Bernard L. 134 Maier, Pauline 34n. 10, 60–1, 72n. 29 maiming 7, 13, 16 Maison Carée 37 Malone, Dumas 102n. 16, 102–3n. 17 Mansfield, Harvey C. 53, 54, 70n. 1, 73n. 39 Marcus Aurelius 47 Marini, John 73–4n. 43 Markman, Sidney D. 102n. 12 Marshall, Chief Justice 71n. 13, 133 Martini, Francesco di Giorgio 82 Mason, George 20, 43 Massachusetts 61, 72n. 25 Massachusetts Bill of Rights 114–15 Massachusetts constitution 21 liberty and 29 Masugi, Ken 74n. 43 Meade, Robert Douthat 50n. 20 Meckler, Michael 126n. 25 Memorial and Remonstrance 21–2, 33n. 2 mental illness 111, 112 Michelangelo 99 Middlekauff, Robert 48n. 1 Middleton, Conyers 40 Mill, John Stuart 63, 135, 138, 144n. 8, 144n. 17 Miller, Naomi 102n. 9 Miller, Perry 51n. 27 Miller, Thomas P. 127n. 45

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Index Miller, Tiffany Jones 74n. 43 Miller, Walter 127n. 46 Milo 116 miscegenation 129 Mississippi 97 mobs 121 Montesquieu, Charles-Louis de Secondat 67, 117, 119, 120 Montgomery, Henry C. 51n. 33 moral agents 131 liberty and 131, 141 scope 131 moral entropy 31 moral foundations 17n. 4, 19–20 complexities 10–11 disparities 11–12 primacy 4 scope 2, 4–5, 24, 70, 114–15, 137 underemphasis ix see also individual terms moral knowledge 17n. 2 scope 4 Morison, Samuel Eliot 47 Morris, R. 126n. 22, 126n. 23, 126n. 24 Morrison, Jeffrey Hays 33n. 1 Moses 11, 107 Mount Pulaski 98, 98 Mount Vernon 37 sacrifice and 38 mutiny 38 Napoleon Bonaparte 99 natural equality see equality natural knowledge 137 natural language 137 natural-law 2, 10, 47, 80 disparities 2 scope 2–3, 134 understanding 143 see also individual terms natural liberty see liberty natural rights 47, 61–2, 66, 115, 131 abortion and 7, 55, 136, 141–2 amalgam and 63, 65–6 armed forces and 61 authority and 90–1 citizenship and 142–3

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classical origins 116–17 common law and 61 conscience and 21–2 disparities 55, 63, 64, 69, 70, 71n. 13 duty and 22, 59 enfranchisement and 69, 142 equality and 58, 114 family life and 54 imbalances 68 individualism and 63 laws of nature and 60, 62–3, 72n. 25 liberty and 55, 58, 63–5, 114, 142 free association and 62–3 monarchy and 69 oppression on 67–8 popular consent and 62 Progressivism and 64 property and 59 reason and 11 reproductive rights and 71n. 13, 141–2 scope 2–3, 22, 55, 59 selectivity and 66 understanding 62 worship and 59 nature romantic 91 scope 91, 92–3, 112 Nazi war crimes 133 Nedelsky, Jennifer 71n. 13 neoclassicism 37 “new” natural-law theory disparities 16 harm and 16, 18n. 18 knowledge in 14 “modes of responsibility” in 14–15 scope 14, 15–16 new order 122–3 classical origins 123 scope 123 New York 37, 66, 98 disunity and 30 mutiny 38 Newton, Isaac 42, 105, 112 Nicholson, Francis 88 Niles, H. 127n. 44

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156 Index

Niles, Hezekiah 73n. 34 Noonan, Jr., John T. 33–4n. 6 Novak, Michael x, xi, 19–34 Nuremberg trials 133 Obama, Barack H. 64, 65 Onuf, Peter S. 103n. 19 oration 38–9, 40 ordinances 94, 103n. 19 Otis, James 115 Paine, Thomas 109, 111, 113–14 Pantheon (Paris) 99–100 Pantheon (Rome) 37, 99 Paris 105 Parliament governmental antimodels from 45 monarchy and 25 oppression from 67–8 Pearse, Joseph 125n. 6 Pendleton, Edmund 40 perspective discreteness 83 geometry and 82, 83 scope 82–3 Pestritto, Ronald J. 74n. 43 Peterson, Merrill D. 48n. 2, 70n. 10, 75n. 57 Pickering, Timothy 75n. 52 Pierce, Henry L. 144n. 5 Piero del Massaio 84 Pinckney, Charles 43 Plato 36, 44, 45, 79, 80, 131 pleasure, happiness and 80 Plutarch 37 Polani, Niccolò 101n. 4 Polybius 45, 46 Popenoe, David 73n. 41 popular consent 54 equality and 62 scope 44–5, 132 popular sovereignty 44 Postell, Joseph 72n. 22 poverty, education and 119 prayer 26–7 disunity and 25–6 scope 26 Price, Richard 109

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Pro Milone 116 Progressivism 74n. 44 disparities 64 property sacrifice and 38 scope 59 Protestantism amalgam and 66 reformed 66 Providence 27, 34n. 9 scope 27–8 Psalm 35 26 pseudonyms 37 Puritans, popular consent and 44 Quincy, Josiah 42 race discrimination disparities 129–30 education and 129, 130 labeling and 141 miscegenation and 129 equality and 140–1 Rahe, Paul A. 51n. 30, 51n. 32 Rakove, Jack N. 62, 73n. 36 Ramsay, David 34n. 8, 34n. 12 Randolph, Peyton 26 Rawls, John 63, 64 Reagan, Ronald 32, 34n. 12, 139 reason authority and 8 disparities 112–13, 114 happiness and 111–12 innocence and guilt 135 liberty and 11 complexities 15 primacy 111 rationality 17n. 5 disparities 9 earning and 8–9 emotion and 9, 18n. 12 scope 8 scope 112, 113–14, 135–6, 139 Reed, Henry Hope 103n. 23 Reid, John Phillip 68, 69, 75n. 54 Reid, Thomas 119, 134, 137, 144n. 7 Reinhold, Meyer 49n. 15, 50n. 18

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Index religion defined 20 primacy 19 underemphasis 20 see also individual terms reproductive rights 71n. 13 abortion and 141–2 Reps, John W. 102n. 13, 103n. 20, 103n. 21 republican government 107 amalgam and 65, 66 corruption and 107 experiment on 2 liberty and 23, 29–30, 63–4 resignation, victory and 37 Revolution 24, 40, 127n. 44 Bunker Hill 32–3, 34n. 12 Charlestown 32 conservatism and 109 disparities 109, 121 disunity and 23–4 governmental models and 39 imbalances 23 impending 25 prayer and 26 Lexington 32 mutiny and 38 needlessness 41 precedent and 44 Providence in 27, 34n. 9 resignation and 37 sacrifice and 38 scope 68, 121 Society of the Cincinnati 37 underemphasis 31 Rhodehamel, John 73n. 37 Richard, Carl J. x, xi–xii, 35–52 rights 21, 25 “rights talk” 53 written and unwritten 24–5 see also human rights; natural rights Robathan, Dorothy M. 50n. 20 Robertson, Donald 36 Robinson, Daniel N. x, xii, 105–27, 135–6, 144n. 10 Roman classics see classics Romanticism 91

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Rome 39, 80–1 Roosevelt, Franklin D. 65 Ross, David 18n. 19 Rosselli, Francesco 102n. 10 Rossiter, Clinton 72n. 27 Rowland, Dunbar 103n. 21 Rowland, Kate M. 50n. 23 rural models scope 46–7 virtue and 46 rural tradition, democracy and 46 Rush, Benjamin 20, 50n. 18, 50n. 21, 113, 126n. 21 Rutland, Robert A. et al. 48n. 2, 51n. 29, 51n. 30 Rutledge, Edward 26 sacrifice property and 38 public service and 39 St. Augustine 81, 82, 100, 101n. 3, 135–6 St. Domingo 67 St. Paul 11 St. Peter’s Basilica 99 St. Thomas Aquinas 4–5, 14, 17n. 3, 18n. 14, 131, 143 Sandel, Michael 63–4, 65, 66, 73n. 40 Sandoz, Ellis 33n. 5, 74n. 49, 125n. 3, 125n. 4 Savonarola 85 Schaffer, Kristen 103n. 22 Scheik, William 126n. 19, 126n. 20 Schramm, Peter W. 74n. 43 Schutz, John A. 50n. 18, 126n. 21 Scott, Pamela 103n. 23 Second World War 140 self-control, liberty and 131 self-denial, happiness and 119 Seneca 47 sexually transmitted disease 133–4 Sforzinda 83, 85 Shain, Barry Alan 56, 60–1, 71n. 16, 72n. 28 Shaw, Peter 49n. 13 Sidney, Algernon 2, 34n. 11, 44 Silver, Thomas B. 74n. 43

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158 Index

Simon, Yves 8, 18n. 8 Singleton, Marvin K. 33n. 6 Skinner, Quentin 102n. 11 slavery anti-slavery and 54–5 disparities 43 human imperfection and 10 prohibition 6–7 Slife, Brent D. xii Smith, Carl 103n. 22 Smith, Norris Kelly 101n. 6 Smith, Rogers M. 54, 70n. 4, 72n. 28 Smith, Wilson 48n. 3 Society of the Cincinnati 37 Socrates 80 Sodalitas Club 115, 116 Sparta 39 Spencer, John R. 102n. 8 Stamp Act crisis 72n. 25 Stewart, Dugald 119 Stoicism 47 Stone, David xii Stone, Lawrence 48n. 3 Storing, Herbert J. 50n. 24 Strauss, Leo 54–5, 70n. 9, 75n. 52, 79, 101n. 1 suburban expansion 97–8 Supreme Court 97 Syrett, Harold C. 48n. 5, 50n. 22, 75n. 52 Tacitus 36, 41 taxes 41 Taylor, Robert J. 49n. 11, 49n. 16, 50n. 18, 50n. 19, 50n. 24, 51n. 26 thanksgiving 27 Thomas (Apostle) 137 Thomson, Charles 123 Thorpe, Francis Newton 71n. 19 Thoughts on Government 118 Thucydides 36 Tocqueville, Alexis de 63, 73n. 39, 124–5, 127n. 47, 138, 144n. 18 Tollefsen, Christopher 7, 18n. 7 Tollefsen, Olaf 18n. 17 Trachtenberg, Marvin 102n. 7

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translation, natural language 137 transparency, judgment, virtue, and 30–1 travel 55 treason 24 truth knowledge and 137–8 underemphasis 24 Tucker, George 40 Tudor, William 49n. 11 Tyler, John 118, 127n. 35 Ulpian 44 Universal Declaration of Human Rights 54, 70n. 6, 70n. 11 universal principles x, 80 censured 53 disparities 54 limitations 60–1 scope 54 underemphasis 53 see also individual terms University of Virginia 37, 92, 92 University of Virginia Library 99 urban life 85 disparities 85 scope 79–81 urban renewal 97–8 Urmson, J. O. 18n. 19 U.S. Capitol 37, 99, 99, 100 Van Dorn, P. A. 97 van Pelt, Robert Jan xii Versailles 94–5 victory, resignation and 37 Virgil 35, 123 Virginia 24–5, 33–4n. 6, 87–8, 88, 103n. 18 documents 20–1, 24–5 enfranchisement 93–4 Virginia Bill of Rights 25 Virginia Declaration of Rights 20–1, 24–5, 114 Virginia State Capitol 37 virtue 46 classics and 36 judgment, transparency, and 30–1 liberty and 30

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Index limitations 31 scope 16–17, 47 see also individual terms voting rights 69, 93–4 equality and 142–3 walls 91 Walter, Thomas U. et al. 99, 100 war crimes 133 Warren, Chief Justice 129, 132–3 Warren, Joseph 32–3, 34n. 12, 39–40 Washington, D.C. 94, 95, 95–7, 96 Washington, George 19, 21, 24, 26, 27, 30, 31, 34n. 9, 37–8, 40, 47, 62–3, 73n. 37, 94, 96, 116 Watson, Bradley C. S. 72n. 22 Waugh, Evelyn 107, 108 wealth, education, power, and 122 Webster, Daniel 139, 144n. 20 Webster, Noah 20 West, Thomas G. x, xii, 34n. 11, 53–75 Westfall, Carroll William x, xii, 77–103 Williams, Richard N. xii Williamsburg 87, 88–90, 89, 94, 95 Wills, Garry 49n. 7, 49n. 8 Wilson, Douglas L. 51n. 31, 52n. 34 Wilson, James 39, 58, 72n. 20, 115, 116, 126–7n. 28, 135, 136–7, 138, 139, 141, 143, 144n. 13, 144n. 14, 144n. 15, 145n. 25 Wilson, James Q. 136, 144n. 11

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Wilson, John 20 Winthrop, Delba 73n. 39 Witherspoon, John 20, 23–4, 27–8, 33n. 1, 48n. 3, 119, 121–2, 124, 127n. 38, 127n. 45 women abortion and 7, 55, 136, 141–2 constraints on 54 family life and 54 reproductive rights and 71n. 13, 141–2 Wood, Gordon S. 49n. 7, 50n. 19, 51n. 28, 51n. 29, 56, 71n. 15 workplace discrimination 70–1n. 12 worship 59 Wren, Christopher 99–100 Wythe, George 40, 100, 106 Yancey, Charles 102n. 16 Young, Thomas 50n. 18 youth education and 106, 118, 122, 129, 130 emotion and 136 endurance and 139–40 equality and 58 Zinn, Howard 74n. 44 Ziobro, William 126n. 25 Zuckert, Michael P. 65–6, 74n. 46, 74n. 47, 74n. 48, 74n. 50

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