by Edward J. Erler
James Madison is justly celebrated for his frequently stated opinion that “all power in just and free Government is derived from compact.” But Madison’s view is not endorsed by all purported champions of the founders. A recent article, “Our Unwritten Constitution: Orestes Brownson and the Foundation of American Liberty,” published as part of the RealClearPolicy series on the American Project and co-authored by Richard M. Reinsch II and the late Peter Augustine Lawler, argues that Madison is utterly mistaken in his claim. In fact, the authors claim that reliance on “Lockean contract theory” produced a constitution that was “devised solely in the interest of the rights of individuals” and was “based on the unrealistic abstraction of unrelated autonomous individuals.”
Lawler and Reinsch claim that autonomous individuals – that is, human beings abstracted from real life – cannot provide the appropriate material for political life. They are not “parents, creatures, [or] even citizens. Lockean thought, thus, isn’t political enough to be the foundation of government, and it isn’t relational enough to articulate properly the limits of governments or the roles of family and organized religion.”
Reinsch and Lawler rely heavily on Orestes Brownson’s criticism of Locke’s influence on the American Founding. They describe Brownson, accurately if a bit oddly, as “a 19th century New England intellectual associated with the transcendentalist movement who converted to Roman Catholicism” and vouch for his assertion that “the equality of human persons is a fact. But it is a fact that entered the world through Christian revelation and was later affirmed as self-evident by philosophers.” The authors maintain, according to Brownson, the self-evidence of human equality as it appears in the Declaration of Independence “is undermined” by its “pure Lockean dimension . . . where individual sovereignty becomes the foundation of government. Every man, Locke says, has property in his own person, and for Brownson that assertion of absolute self-ownership is, in effect, ‘political atheism’.”
Brownson, however, vigorously resists the idea of self-ownership: “man is never absolutely his own, but always and everywhere belongs to his Creator; it is clear that no government originating in humanity alone can be a legitimate government. Every such government is founded on the assumption that man is God, which is a great mistake – is, in fact, the fundamental sophism which underlies every error and sin.”
Our authors endorse Brownson’s criticism of the notion that the just powers of government derive from the consent of the governed or that sovereignty ultimately resides in the people. To say that the people are sovereign is “implicit atheism” because “[s]ocial contract thought lacks an external standard higher than man’s will that could limit, shape, and condition it. The highest being is man, who would self-create government by consent . . .” This is the universe of “self-sovereignty or political atheism” that Hobbes, Locke, and Rousseau occupied and which the authors of the Declaration of Independence obediently followed.
The authors of the Declaration, of course, appealed to the “Laws of Nature and of Nature’s God,” as their authority. Were they simply disguising the fact that they relied on no higher authority with high sounding rhetoric? – that despite their rhetoric they were “political atheists?” It is true the Declaration is the quintessential statement of social compact theory, but isn’t it also clear that its entire argument rests on the acknowledgment of a Creator and an intelligible Creation?
Reinsch and Lawler are wrong to assert that compact is only about the protection of rights and does not involve obligations. In a social compact, every right entails a reciprocal obligation. Every member of the compact who joins for the equal protection of his equal rights has the duty to protect the equal rights of fellow citizens – even the right of revolution is a reciprocal duty belonging to all citizens. Anyone who is unwilling or unable to perform the duties attendant upon membership in a community based on social compact is ineligible to become a member.
Our authors apparently did not notice the closing statement of the signers of the Declaration of Independence: “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” The signers are willing to sacrifice life and property – both of which are natural rights – to preserve their honor. They believed that honor or justice was of higher rank than the natural right to life or property. Clearly, the signers of the Declaration ranked the goods of the soul (honor, justice) higher than the goods of the body (life, property). For Hobbes, of course, honor is not any part of the human good. It is utterly impossible to imagine him ever pledging his “sacred honor” to any cause.) But Reinsch and Lawler maintain throughout, that the Lockean authors of the Declaration and the Constitution sought only to provide protection for the natural rights of autonomous individuals or, as they described it on one occasion, “to provide protection against violent death and to secure property rights.” As we have just demonstrated, however, they are mistaken. In ranking honor above life, the authors of the Declaration demonstrated they were not Hobbesians, willing to sacrifice everything to the “fear of violent death.”
In addition, the Declaration never claims that the principal end or purpose of government is the protection of natural rights; it is rather the “safety and happiness of the people” – what one prominent political philosopher described as the alpha and omega of political life as depicted by Aristotle. Our authors make the significant, but frequent, error of those who insist that the American founding was radically modern, simply ignoring the obvious Aristotelian elements incorporated in the framers’ handiwork.
Bound by the Law of Nature
The authors of The Federalist accepted the Declaration of Independence as the authoritative source of the Constitution’s authority. Madison in The Federalist insisted that the proposed Constitution must be “strictly republican” because no other form of government could be “reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with the honorable determination which animates very votary of freedom to rest all our political experiments on the capacity of mankind for self-government.”
The “genius of the people” refers to the habits, manners, customs, history, traditions, and religion of Americans. Contrary to our authors, the social compact founders were well aware of the necessity of including these factors in their constitutional deliberations. No one can read The Federalist or, for that matter, the writings of the Anti-Federalists, without coming to that realization.
The second and central factor that requires “strictly republican government” is adherence to “the fundamental principles of the Revolution,” i.e., the principles of the Declaration. The third reason is that strictly republican government requires self-government; and that means rule by the consent of the governed, a principle squarely based on social compact.
In following Brownson, Reinsch and Lawler may have followed a false prophet. Brownson’s account of Locke is seriously defective because he seemed to be unaware of the unique theological-political problem that Locke faced. Our authors seem to have followed him through the gates of error.
The wars of religion were still a fresh memory to Locke and other political philosophers of his era. They were not just a distant memory to the American founders, either. In the classical world, the laws of particular cities were always supported by their gods. Obedience to the gods and obedience to the laws were one and the same. As soon as there was a universal God for all cities, however, political obligation became problematic. In the Christian world, conflicts between obligations to God and obligations to civil authority became inevitable, and in cases of conflict, the first obligation of Christians was to God or ecclesiastical authority. This reveals the apolitical character of Christianity. As the apostle Paul wrote to the Philippians, “our government is in heaven.”
The universalism of Christianity, of course, makes an appeal to particular gods as the ground or foundation of the laws of a particular regime impossible. Some ground for political obligation – for politics – independent of Christian theology had to be found if political life was to be free from the continuous strife engendered by the theological disputes that arose within Christianity. The late Harry Jaffa probably understood this theological-political predicament better than anyone when he argued:
Christianity had established within the souls of men the idea of a direct, personal, trans-political relationship between the individual and his God. But this relationship did not determine what the laws were to be, or the precise character of the obligation owed to those laws. The idea of the state of nature—the idea of a non-political state governed by moral law—corresponded to the relationship which every Christian had with every other Christian as he considered himself prior to and apart from his membership in a particular civil society. Just as every Christian was under the moral law, without being a member of civil society, so every human being was under the moral law of the state of nature, prior to entering a particular civil society by way of the social contract.
It is clear in Locke that everyone is bound by the law of nature – the moral law – in the state of nature. Thus, Jaffa argues, the social contract, by creating particular political communities, reestablishes the idea of man as by nature a political animal, an idea that was absent from the apolitical universe of Christianity. It provided a ground for political obligation, based in reason and consent, that was also absent in Christianity. Far from the “political atheism” described by Brownson, Locke restored man’s political nature based on higher law, the laws of nature – and he did it on Aristotelian grounds!
Good Theology and Good Government
Of course, Locke spoke most often in terms of individual rights, something that Brownson deplored as leading to the radically autonomous individuals who assumed, he falsely believed, the sovereignty of God. Brownson misunderstood Locke, but he must surely have understood the origin of the idea of individual rights was in Christian theology itself. In Christian theology, man’s relationship to God is personal, thus the political relationship must also be “personal,” that is based on individual rights. Locke understood that the principles of natural right must be able to accommodate the regnant theology. Rights must belong to individuals; that was good theology – and it was good government.
Aristotle says that the principles of human nature are universal, but for human nature to flourish, for human potential to become actual, it must do so in particular human communities – in the polis. For Christians, the highest aspirations are in the life to come, and political life in this world is merely a preparation for the next. Paul cautioned the Colossians to “mind the things above, not the things on earth.” From this point of view, man is by “nature” apolitical. Social compact reaffirms man’s political nature by establishing particular political communities where this-worldly aspirations are the proper objects of political life. At the same time, man’s universal nature is affirmed by the law of nature that is the standard and measure by which particular communities are judged. While reasserting man’s political nature, social compact at the same time retains its compatibility with the City of God because natural law is understood to be, in Locke’s terms, “the Will of God” or reason which is the “the voice of God.”
The Declaration is also Aristotelian in its recognition of universal human nature (“all men are created equal”) but also recognizing that the implementation of that equality in securing of the “safety and happiness” of the people requires the creation of a “separate and equal” nation. Only in a separate and equal nation – a sovereign nation – can the privileges and immunities of citizenship be guaranteed and the habits, manners and virtues suitable for republican citizenship be inculcated.
No doubt Reinsch and Lawler will complain that this social construct is hardly Aristotelian because it is a human construct, an act of pure human will, whereas Aristotle maintained that man is by nature a political animal. For Aristotle, of course, the polis does not grow spontaneously – it is not the result of natural growth; rather, it had to be “constituted” by human art, and the one who first “constituted” the polis, Aristotle says, is the cause of the “greatest of goods.” The polis exists by nature because, while it is last in the order of time, it is first in the order of final causality. All associations – male and female, the family, the tribe, the village – are incomplete, and their incompleteness points to the polis as a final cause. And the final cause is nature. Aristotle’s polis thus seems to be no less the result of artifice than social compact. In other words, Aristotle’s polis – no less than America – had to be founded by human art. Had Aristotle faced the same theological-political situation that Locke faced, I believe he would have agreed that social compact was the only possible ground for establishing political life on the foundations of nature or natural law.
Brownson and our authors are particularly exercised by Locke’s “doctrine” of self-ownership. They believe this to be the most destructive of all Locke’s subversive writings. Men always belong to the Creator; they can never belong to themselves. But what is the sovereignty of the individual presupposed by social compact “but the assumption that man is God?” Let’s see.
In the sixth paragraph of the Second Treatise, Locke spells out the obligations that men have in the state of nature. It is quite remarkable that in a book famous for its advocacy of rights, we hear first about the obligations that everyone has to the law of nature:
The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the world by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one another’s Pleasure.
Men are thus the property of “one Omnipotent, and infinitely wise Maker.” This act of creation – the “workmanship of God” – makes each man equally the property of God, and each being the property of God, no one can be the property of anyone else. Thus each is “equal and independent” with respect to every other human being, which can only mean that “every Man has a Property in his own person” in his relations with every other human being, but is responsible to God in fulfilling his obligations to the law of nature – those obligations that God has imposed for the preservation of His workmanship. According to Locke in the First Treatise, God made man and planted in him a desire for self-preservation so that “so curious and wonderful a piece of Workmanship” should not perish. And according to Locke in the Second Treatise, God has set the individual free and made him “master of himself, and Proprietor of his own Person” so that he might go about fulfilling his obligations to the laws of nature, which he describes as the “Will of God” in the service of preserving God’s workmanship, not only of individuals but of mankind.
Liberty Is the Law of God and Nature
This is hardly the portrait of radically autonomous individuals who seek to supplant the authority of God drawn by Brownson and endorsed by Reinsch and Lawler, but it is the authentic Locke available to anyone who is willing to read him with any modicum of care. The American Founders read Locke as enlightened statesmen, gleaning political wisdom from his superior understanding of the theological-political problem. It was the absence of such disputes that made the success of the American Founding possible – a rare time in history when such a providential dispensation favored political founding – a dispensation prepared in large measure by Locke.
Madison was right: compact is the ground of all just and free government, and the theologians at the time of the founding agreed.
I will discuss here only one widely circulated sermon that was typical of the many sermons that relied on compact to reconcile questions of theology and politics. The Reverend John Tucker delivered “An Election Sermon” in Boston in 1771 that was profoundly influenced by Locke. “Civil and ecclesiastical societies are, in some essential points, different,” Tucker declaimed. “Our rights, as men, and our rights, as Christians, are not, in all respects, the same.” It cannot be denied that God’s
Subjects stand in some special relation and are under some peculiar subjection to him, distinct from their relation to and connection with civil societies, yet we justly conclude, that as this divine polity, with its sacred maxims, proceeded from the wise and benevolent Author of our being, none of its injunctions can be inconsistent with that love of liberty he himself has implanted in us, nor interfere with the laws and government of human societies, whose constitution is consistent with the rights of men.
Tucker exhibited a common view among New England clergy: the constitution of the “divine polity” cannot be in conflict with any civil government “whose constitution is consistent with the rights of men” and the “love of liberty” that God implanted in human nature. According to Tucker, the proper constitution of civil government begins with the reflection that
All men are naturally in a state of freedom, and have an equal claim to liberty. No one, by nature, not by any special grant from the great Lord of all, has any authority over another. All right therefore in any to rule over others, must originate from those they rule over, and be granted by them. Hence, all government, consistent with that natural freedom, to which all have an equal claim, is founded in compact, or agreement between the parties;—between Rulers and their Subjects, and can be no otherwise. Because Rulers, receiving their authority originally and solely from the people, can be rightfully possessed of no more, than these have consented to, and conveyed to them.
Thus compact seems to be the key to reconciling divine polity and civil polity. Tucker began the sermon with the invocation that “the great and wise Author of our being, has so formed us, that the love of liberty is natural.” Liberty is the law of God and nature. The laws of divine polity are prescribed in the Gospel; those of civil polity are derived from social compact. What connects divine polity and civil polity is the liberty that God created as the essential part of man’s nature. Social compact is the reasonable exercise of that freedom in the formation of civil society. Thus it seems that the theological-political problem – the problem of potentially conflicting obligations between divine polity and civil polity – is solved by Tucker, at least on the moral and political level, on the basis of social compact, which provides the only rightful basis for government because it is the only origin of government consistent with natural liberty.
In fashioning his account of the social compact, Tucker readily acknowledges the influence of “the great and judicious Mr. Locke,” extensively quoting and citing “Locke on Civil Government.” I think it fair to say that “America’s philosopher” dominated the pulpit no less than he dominated legislative halls and constitutional conventions. Thus a remarkable providence seemed to have guided the American founding in the form of a dispensation from the theological-political disputes that would have rendered impossible any attempt to establish constitutional government.
To argue that the American Founders fell prey to Locke’s radical individualism when they relied on social compact reasoning is simply perverse and a mischaracterization of the Founders’ (and Locke’s) understanding. The Founders did not read Locke as a radical modern. They were unaware – or ignored – the philosophic dispute between ancients and moderns. As statesmen, they were interested in the history of politics and were free to choose the most salutary and beneficial practical solutions. Their reading of Locke traced the ideas of natural law directly back to Aristotle. They were mostly unaware of the latter-day discovery of Locke’s esoteric writing that provided insights into the radical core of his thought. Locke’s exoteric writings provided an entirely salutary political teaching that was adopted – and adapted – by the Founders.
The Founders’ decision decision to follow Locke on social compact – “the principles of the Revolution” – meant that the end of government was the “safety and happiness” of the American people, an Aristotelian conception that helped to insulate the founding from the storms of modernity that were threatening Europe. It provided America with a more comprehensive and elevated purpose than simply avoiding “violent death” and “protecting property,” the Hobbesian purposes assigned by Reinsch and Lawler.
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Edward Erler is a senior fellow of the Claremont Institute and author of the forthcoming book, Property and the Pursuit of Happiness: John Locke, the Declaration and James Madison (Roman & Littlefield, July 2019)