Monday, May 2, 2011

Cromwell and the Constitution

I have been interested in, and therefore studying, for some time now, what I consider to be the Reformed Christian (Calvinist) origins of American government. Right now, I am reading a book about precisely that subject, viz. Foundation of American Freedom by A. Mervyn Davies (New York/Nashville: Abingdon Press, 1955), and a particularly fascinating section of the book is found at pp. 162-5, and I thought American Creation readers would appreciate it.

After describing how the English Civil War failed due to a disagreement between the center (Cromwell and Ireton) and the left-wing (Rainborough and Wildman), about whether suffrage should be extended only to property-owners or to all men, Davies says that the same basic conflict occurred in Philadelphia in 1787, about whether representation in Congress should be popular or aristocratical. (Elsewhere in the book, Davies, like Abraham Kuyper's Lectures on Calvinism, argues that the left-wing of Calvinism, such as the Levellers and Roger Williams, were the truest of all Calvinists to the fundamental principles of Calvinism. Cf. John Wingate Thornton, The Pulpit of the American Revolution, p. xiv, quoting George Cranmer: "If the positions of the [Protestant] Reformers be true, I cannot see how the main and general conclusions of Brownism [i.e. Independency or Congregationalism] should be false.")

Davies continues,
If the London convention had had a Benjamin Franklin to lend his conciliatory genius to settling this dispute, who knows? perhaps England would have set up a successful constitutional republic. And, by the same token, if there had been no Franklin at Philadelphia, it is even possible that the American Republic would never have been established. One vote might have made all the difference, for only one vote carried the compromise plan which saved the Philadelphia convention from dissolution. By such slender threads do the destinies of nations sometimes seem to hang!

England actually came closer to setting up an American-styled republic in 1649-50 than most people realize. While it is, of course, perfectly true, as Charles M. Andrews says, that the seventeenth century shows "only an English world in America with little in it that can strictly be called American," the paradoxical thing is that for a little while the seventeenth century also fosters the illusion of an American world in England with little in it that can strictly be called English! If it is true, and of course it is, that the story of American settlements cannot be properly be understood except as seen against the background of English history, it is no less true that the story of English constitutional experiments in the Commonwealth period cannot properly be understood except as viewed in the perspective of the United States' Constitution. In fact, one might almost call this brief period in English history a sort of prevue of the American idea.

Such a thought would scarcely occur to an English historian concerned with nothing more than the history of his own country. For to him the constitutional developments of the period cannot appear other than as abortive experiments-a dead end so far as the future course of his country is concerned. How differently they appear to an American historian interested in the origins of the American system of government! He sees this same dead end to be a most important link in the chain of development connecting Philadelphia with Runnymede. What is merely an almost irrelevant offshoot of English history to the English historian is part of the main trunk of American history to the American historian.


As George Burton Adams puts it:
It was American, not English, constitutional law which was here making its first beginning, its first essays in imperfect and half-conscious formulation, and it was in America that these principles were developed from this beginning in unbroken growth into the government of a great people. (Constitutional History of England, p. 322.)


The extent to which "American" ideas of government were circulating in England at this time may be best seen by examining the nature of the proposal that was offered in the House of Commons under the title of "The Agreement of the People." What a big landmark in human thought about government this agreement was may be judged from Adams' description of it.
... It implied that the people of England by an agreement formally entered into were to make a written constitution in order to establish a government and define its powers. ... The foundation upon which it rested, the agreement of the people, is the same as that upon which our constitutions rest and it was here proposed for the first time in history as the foundation of a national government. The similar compacts which had preceded it in America, though they came from the same ultimate sources, and were truly intended to establish "a Civil Body Politick," served for little communities of people in which an actual democracy was entirely feasible, and representative institutions, as an expedient for working a democracy on a great scale, had no need to be considered for a long time. The Agreement of the People was seriously intended as the constitution of a great nation. It must be regarded, however, as more than merely the first written constitution proposed for a great state. It was a constitution distinctly of the American type.

Notice how Adams there not only equated the English Civil War's "Agreement of the People" with the American Constitution, but also the New England Puritan town covenants too he related thereto.

(By the way, I am very much enjoying Davies's book, and I highly recommend it. I would say it goes very well with Benjamin Hart's Faith & Freedom: The Christian Roots of American Liberty and Abraham Kuyper's Lectures on Calvinism. I learned of Davies's book in an article by Gary DeMar at American Vision, The Scourge of Unbridled Democracy. I will say that I am myself an anarcho-capitalist, but my inspiration was the writings of the Reformed Christians, perhaps much as Murray Rothbard became an anarcho-capitalist thanks to Thomas Aquinas. To quote A Religious History of the American People by Sydney E. Ahlstrom, "There is much truth in the Roman Catholic claim that if Luther had possessed a profound knowledge of Saint Thomas or even of the full tradition of medieval exegesis of Saint Paul, he would have been spared much anguish. But these points are at best academic, for the assault on Thomism had begun even before the Angelic Doctor's death, and it had contiuned unabated." When I was looking at the recommended reading list in DeMar's God and Government: A Biblical, Historical and Constitutional Perspective, I was amazed to see that in the list of recommended books on economics - where DeMar specifically stipulates that he is including only books written from a Biblical, Christian perspective; even if the non-Christian or non-Biblical books are true and good, he says, they are not included - is listed Henry Hazlitt's Economics in One Lesson!! I have no idea how a book based on Frédéric Bastiat is considered Biblical and Christian, but I won't complain! I jokingly asked some fellow Austrian Economics-loving friends of mine, whether they thought DeMar excluded Ludwig von Mises and Murray Rothbard from his list, because DeMar seriously disagrees with them, or because however hard it may have been to justify considering Hazlitt (and therefore Bastiat) as "Christian" and "Biblical", it would have been even harder to include two atheistic Jews, Mises and Rothbard, as such!)


Mikewind Dale (Michael Makovi) said...

Subscribing to email updates.

Estase said...

It is fairly obvious to me that men like John Milton and Oliver Cromwell got the idea that governments should be non-hierarchical from the non-hierarchical churches they favored. However, it is also possible to overstate Cromwell as a democrat, given his words as he ordered the effects of Parliament removed from their hall:"Away with these baubles." To some extent Cromwell was a proto-fascist military thug.

JMS said...

I share the goal of this website/blog to create "a better understanding of this historical era," But in this sense, Estase's comments are unhistorical and unhelpful. Obviously Cromwell is a controversial and complex historical character. For an excellent and historically-based and nuanced appraisal of Cromwell, religion and church-state relations, please read D.J.B. Trim at Liberty magazine (late 2006 – early 2007)

Mikewind Dale (Michael Makovi) said...

JMS, you need to replace "shadow" in those URLs with "lib":

Thanks - these look awesome!

JMS said...

Michael - thanks very much for the making the Cromwell essay links available to all. And I'm glad they are of interest to you.

Dr. Trim has posted some other great series of essays with endnotes on Religious Wars, the Reformation, and the Christian Persecutory Impulse at the Liberty magazine website.

Jason Pappas said...

From Trim's articles I get the impression that Cromwell’s crusade on behalf of the Vaudois was a Wilsonian policy to make Europe safe for Protestantism. Cromwell as an example of religious toleration? Trim goes too far. Let’s ask the Irish.

Trim does do a good job of describing Cromwell’s ability to promote freedom in one area (for practicing different strains of Protestantism) while he was intolerant of moral “dissipation.” Rather than being strange, I find it is more of the norm historically.

The Florentine Republic under Savonarola (an inspiration to Luther) had strict moral codes as did the Roman Republic where sumptuary laws and other “morals” regulations were not unusual.

First of all, of the four cardinal virtues and three theological virtues, the one virtue that these examples single out is “incontinence” i.e. submission to the appetites (sexual, gluttony, alcohol abuse, etc.) The other virtues may be left unregulated. Hence, we might see no prescriptions on wisdom, prudence, courage, faith, hope, or charity. According to Trim, Cromwell was tolerant in faith but not in incontinence.

It is not so much a contradiction but a selection of what freedoms to allow and which to oppose. For example, today the right might focus on regulation of “incontinent” sins the left tends to prefer forced “charity.” Wisdom is seldom exhibited let alone required by anyone.

Mikewind Dale (Michael Makovi) said...

Heh, let's not forget that historically, the Neoconservatives were all former Democrats. They abandoned the social values of the Democrats but retained the statist modus operandi.

Myself, it is all the rhetoric of the Calvinists against "popishness" that convinced me to oppose any imposition of any moral philosophy by anyone against anyone else, whether against drunkiness or against sleeping with your sister.

Mikewind Dale (Michael Makovi) said...

Not that I don't criticize the "modal libertarians" (to use Rothbard's term). I simply oppose the use of force against them.

Mikewind Dale (Michael Makovi) said...

As for the Irish, my impression is that Cromwell seriously feared the invasion of an imperium in imperio. He may have been wrong, but with memory of Guy Fawkes, can you blame him?

Estase said...

Hey JMS,
Why is it unhistorical and unhelpful to point out that Oliver Cromwell was not a perfect democrat? Because you would like to pretend that Cromwell's power didn't originate from brute force?

Tom Van Dyke said...

Myself, it is all the rhetoric of the Calvinists against "popishness" that convinced me to oppose any imposition of any moral philosophy by anyone against anyone else, whether against drunkiness or against sleeping with your sister.

Oh, my.

This rather takes a strain of "radical individualism," a notion of liberty as license that is not prominent in the Founding.

It comes down to a question not of individual liberty, however, but of societal cohesion. A society with no mores [morals] was unthinkable for most of man's history.


I come from the RCC perspective, but I quite agree that the hostility to popery and Guy Fawkes, etc., "allegiance to a foreign prince" stuff does not seem entirely unreasonable.

Mikewind Dale (Michael Makovi) said...

I believe in liberty as license, just as much as Roger Williams did.

I'm not saying that it is legitimate for men to sleep with their sisters, but only that I do not have authority or jurisdiction over that. To me, to enforce such moral issues, is idolatrous. It is to replace God and install myself in His stead.

I am not calling for a society devoid of morality or cohesion. I merely think that morality is better if from God rather than from man; and I believe that societal cohesion is more valuable when it comes from covenant and compact and contract among men imitating God's example of a covenant between Him and man, than when it comes from coercion and compulsion and threat of violence.

Tom Van Dyke said...

Covenant isn't necessary to emulate.

The whole idea of natural law in the Founding [and elsewhere] is that the revealed word [outside of the soteriological] is also penetrable by reason.

My favorite examples of "legislating morality" are the humane treatment of animals and not having sex on the sidewalk. We legislate morality routinely, and it need not have a specific Biblical origin.

There's a line to be drawn between ritual law [and the Mosaic code is rife with it] and natural law. But they do overlap. This has always been my problem with Leo Strauss, who seems to conflate Biblical ritual law with natural law.

I believe in liberty as license

What can I say? It seems to me that a society cannot survive such an onslaught: at this point we are using positive law to further license, positive law, which is by definition conventional and artificial, against what Burke might call "organic" and others call "natural law."

Mikewind Dale (Michael Makovi) said...

"We legislate morality routinely, and it need not have a specific Biblical origin."

And I find that appalling. At least the Puritans were only legislating the morality that (they thought) came straight out of God's own mouth. If the Creator of the Universe says it, then whether it is reasonable to you or whether your victim consents, is kind of irrelevant.

What Roger Williams and others innovated, was that it is arrogant to assume you yourself are privy to perfect knowledge of what God wants. You think you know what He wants, but your victim thinks he knows what God wants. So for you to impose what God wants, is an arrogant, popish belief in infallibility.

But to use natural law and reason to impose extra obligations on your neighbor???!!! That is downright tyrannical. There is no way whatsoever to justify that. The Puritan at least appealed to God. If the Puritan was arrogant, at least he still have a theoretically legitimate epistemology. But for you to use your own human reason to contrive ways to lord over your neighbor, is simply pure evil, plain and simple.

Natural law and reason, in the area of politics, are legitimate only when they limit government, not when they expand it. Williams used logic and reasoning to derive that religious coercion was popish. He took what is Godly - namely religious coercion - and used logic and reason to limit it. That is the only legitimate use of reason. Not to expand government and law.

Mikewind Dale (Michael Makovi) said...

What I do not understand, is how people like Davies and H. Henry Meeter's The Basic Ideas of Calvinism, can spend a book summarizing the Puritan limitation of government, and celebrate Roger Williams and the Levellers as the truest of all Calvinists, and then go and celebrate Woodrow Wilson and Franklin D. Roosevelt. I don't understand it.

I'd rather go with John Witherspoon. Being a good Calvinist clergyman who wrote the book on why legal tender laws are evil ("An Essay on Money"), Witherspoon wrote (ibid.):

"I cannot help observing, that laws of this kind [to regulate the economy] have an inherent weakness in them; they are not only unjust and unwise, but for the most part impracticable. They are an attempt to apply authority to that which is not its proper object, or to extend it beyond its natural bounds; in both which we shall be sure to fail. The production of commodities must be the effect of industry, inclination, hope, and interest. The first of these is very imperfectly reached by authority, and the other three cannot be reached by it at all. Perhaps I ought rather to have said, that they cannot be directed by it, but they may be greatly counteracted; as people have naturally a strong disposition to resist force, and to escape from constraint. Accordingly we found in this country, and every other society who ever tried such measures found, that they produced an effect directly contrary to what was expected from them. Instead of producing moderation and plenty, they uniformly produced dearness and scarcity."

Tom Van Dyke said...

I'm no Roger Williams scholar, but I'm having trouble wrapping my mind around him being OK with turning Rhode Island into modern-day Amsterdam.

As for full knowledge of the will of God, that's an unnecessarily high bar, one that cannot be met, and is sophistic, really.

And nobody's talking about coercion in religious belief here.

But to use natural law and reason to impose extra obligations on your neighbor???!!! That is downright tyrannical.

You're kidding, right? The natural law itself imposes duties as well as rights. The end result of your argument isn't liberty, it's anarchy. But man is a social animal as well as---philosophically speaking---an individual.

Just societies attempt to discern those duties, not impose them willy-nilly or tyrannically.

[I think of Woody Allen's "Bananas" here.

Esposito: From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now... 16 years old!

Fielding Mellish: What's the Spanish word for straitjacket?]

Mikewind Dale (Michael Makovi) said...

Okay, so maybe Williams still approved of sumptuary laws. But my rejecting them in the name of Williams, is no different than Williams rejecting punishment of heretics in the name of John Calvin. That is, if Williams was merely taking Calvin to his logical conclusion, then I am merely similarly taking Williams to his.

When Williams cited the two-kingdoms-doctrine of Martin Luther, that the civil and ecclesiastical spheres are to be separate, with the one wielding a physical sword for the civil peace and the other a spiritual sword (excommunication) for worship of God, John Cotton replied that he too agreed with Luther. So both Williams and Cotton agreed that church and state were to be separate. The issue was that Cotton classified keeping outward society free of pernicious and disgusting heresy, to be a matter of civil peace, while Williams disagreed.

Compare how the very day after Thomas Jefferson and James Madison got the passage of the "Virginia Statute for Religious Freedom", they secured the passage of the "A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers". Apparently, Jefferson and Madison considered that a matter of civil peace, not religious coercion. (James Henley. Thornwell's "A Sermon on National Sins" notes that a law punishing Sabbath violators does not force anyone to violate his religion. But that would not be enough for Jefferson and Madison. They would have to have believed that furthermore, punishing Sabbath violators furthered the civil peace.)

And Roger Williams himself that the New Testament replaced the Old Testament, contrary to orthodox Reformed federalism. For Williams, that meant that laws regarding the execution of idolaters and such, were no longer binding, but I would say that by William's own logic, that should have meant that laws about executing murderers too should have been null and void. So I take a different tack: as an Orthodox Jew, I do not believe that anything has replaced the Jewish Bible (and I believe Williams should have retained that same orthodox Reformed federalism), but I do believe, however, that morality is as much a matter of conscience and conviction as any "ritual" law. For me, the Torah is one and indivisible. The same Torah that commands me to worship God and keep kosher and Shabbat, also commands me to avoid premarital and homosexual sex. The Torah is one and indivisible. So I would say there is no difference between punishing a heretic in "ritual" matters, and a deviant in "moral" matters. They are both equally religious, and the logic of avoiding coercing against conscience, applies to both.

So all I will allow, is protecting people from harm. I do not so much want to keep a murderer from murdering, as much as I want to protect the murdered from being murdered. That is, I am not trying to coerce the murderer; I merely want to protect the murdered.

So I want the government to protect life, liberty, and property only, in order that it protect the safety of victims, but otherwise coerce no one in any matter. I believe that premarital and homosexual sex are forbidden by God, but maybe others think that God thinks otherwise.

Is this anarchy (meaning "chaos", I presume, not "absence of government")? Well, Cotton thought Williams's plan was a recipe for chaos, but Williams proved Cotton wrong. I think the same of my plan as Williams did of his own.

Mikewind Dale (Michael Makovi) said...

I see two ways to justify laws concerning morality:

(1) Privatize the property, so that the morality is being regulated by the private-property owners. If you don't want people fornicating on the sidewalk, then privatize the sidewalk, and whoever owns the sidewalk can regulate the morality therein. It is possible but not necessary that a home-owner's association or some other communal institutional will own what is today public property. (I consider home-owner's associations to be legitimate because the developer gives ownership to the HOA, which in turn rents out property, so everything the HOA does is legitimate according to libertarian ideas of freedom of private-contract. Since the HOA actually truly owns your house, not you, the HOA can mandate whatever it wants. By contrast, for example, the other levels of government have no claim to ownership of me or my property, so they cannot legitimately coerce me.)

(2) Privatize all law. Once there are private security agencies that are funded by private dues-collection, then they can do whatever they want. If a private security agency wants to go out and hunt heretics, then they can do so. Of course, such an over-reaching agency will probably be unable to find enough subscribers willing to spend their money coercing unwilling others (because it will not have access to government's taxation ability and the concomitant concentration of benefits and diffusion of costs that makes government open to special interests), but they are welcome to try all they want.

Jason Pappas said...

One would prefer odious behavior be diminished by taboo and ostracism instead of law and confinement, i.e. in those cases where virtue or judgment were lacking. Still, I don’t denigrate societies that have laws which further what I call “decorum.” Such public strictures on appropriate clothing and language are generally minor when it comes to limitations on the important liberties required for human flourishing.

I expect there will always be some laws of this nature. I don’t take them as a lack of commitment to individual liberty unless they are unduly harsh. That, of course, is a evolving societal standard. That “civil peace” may have included laws that seem too restricted today, such as blue laws and even prohibition. Some towns still have (alcohol) prohibition, such as Ocean Grove, New Jersey, founded by Methodists as a summer camp. Of course when the are rare exceptions, they are more charming than alarming.

Mike noted the problem with a large governmental role in society. Someone’s standards will trump the others. I was just noticing on the local news that the ACLU has sued to stop the 75 year old tradition of using the Great Auditorium of Ocean Grove (New Jersey) for the local high school graduation because it is a Methodist Church. It was the only auditorium in the area that could hold 3000 people. It happens to be a beautiful landmark building with perfect acoustics. If you happen to be in the area, attend one of the many popular or classical concerts in the auditorium.

Of course, the problem wouldn’t exist if there weren’t public schools. Still, it is too bad that the technicality trumps common sense. It is a wonderful hall in a charming sea-side town.

Mikewind Dale (Michael Makovi) said...

The ACLU is a bunch of jackasses. I want to know in what way renting space in a building that just happens coincidentally to be a church, in any way constitutes a LAW for the ESTABLISHMENT of any religion. No law is being passed, and nothing is being established! They're just renting space in a building that happens to be a church but could just as easily be a concert hall!

Meanwhile, they have no problem with things like welfare entitlements, even though the entire argument of Jefferson's "Virginia Statute for Religious Freedom" and Madison's "Memorial and Remonstrance Against Religious Assessments" is that even taxation is a violation of free exercise; to quote Jefferson: "...that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical;
that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness...".

In other words, even taxation to support a non-coercive establishment, is itself a violation of free exercise. So how can leftists quote the letter to the Danbury Baptists (which they misinterpret), and yet ignore Jefferson's position that taxation itself is tyrannical? (Except for taxation for the protection of life, liberty, and property)

Mikewind Dale (Michael Makovi) said...

Compare Jefferson's and Madison's law in Virginia, to Patrick Henry's proposal for Virginia, modeled on Samuel Adams's provision in the Massachusetts Constitution. All Massachusetts and Henry's Virginia would do, was tax people to support a Protestant church, while still allowing everyone to attend whatever church he wanted to. So you'd be taxed, but not otherwise compelled. It was this that Jefferson and Madison opposed, then: taxation.

Jason Pappas said...

Of course I agree, Mike. Believe it or not the ACLU argues that a graduating senior might feel uncomfortable in a building with a Christian cross at its top. In other words, there is no objective criteria; it is all subjective. Your argument, valid as it is, assumes too much respect for the ACLU! Once it’s a matter of feelings all rational argument has been lost.

Good points on the taxation issue. Unfortunately Jefferson (and earlier Adams) weren’t consistent. Jefferson wanted universal tax supported education in Virginia when he was governor. The voters weren’t convinced.

Tom Van Dyke said...

So I would say there is no difference between punishing a heretic in "ritual" matters, and a deviant in "moral" matters. They are both equally religious, and the logic of avoiding coercing against conscience, applies to both.

Yes, this is what they argue these days. But that was not the view of the Founders, who saw revealed law [Bible] and natural law [discovered by reason] as running in parallel tracks. See James Wilson.

I'm not sure you can get from Luther's Two Kingdoms to modern-day Amsterdam.

One thing missing in your equation is that as citizens of this republic-democracy, we are citizen-rulers. You can't find any theological justification for a ruler [magistrate, etc.] turning his land into a moral cesspool.

And way too much is made of Virginia's statutes. A few states followed Virginia's lead; many did not. Jefferson had nothing to do with the Constitution, and we know that Madison lost battles along these lines, like gov't pay for chaplains.

[As Dreisbach or Hall noted, well over half of secular court arguments cite Jefferson or Madison when they cite a Founder. But the Founding was not just those two men.]

[As for your ideas on the nature of law, they're starting to stray from the Founding and into an Angie-like speech on "If I were king..."

I would take a look at Rothbard, who did not reject natural law. Even if you assert "radical individual," you need a foundation for it.]

[And you also pretty much reject the concept of civil society, contra Burke, and contra common sense.]

Mikewind Dale (Michael Makovi) said...

Jason, every time one of the Framers did something inconsistent with their own stated ideology, I just say that this proves their assertion that men are sinful and evil and prone to abuse power.

Mikewind Dale (Michael Makovi) said...


I know that the Founders did not think as I do about moral law. But my assertion is, that by their own logic, they would (or should) have thought the way I do, were they to live again today.

One of the basic foundations of federalism and social-contract, is the concept of consent. For example, Johannes Althusius's Politica viewed all covenants among men as flowing from the paradigm of a private business contract, meaning that the phrases "social contract" and "consent of the governed" were not empty.

The Puritan covenants were viewed as unanimous agreements by everyone, and they emphasized mutual Christian love among everyone and non-coercive arbitration and mediation and compromise instead of hierarchical legal rulings.

When Roger Williams argued with John Cotton, Cotton responded that he was only coercing those who knew what the Bible said, because he considered them to be cogniznant of their sins, but he did not punish Indians for the same sins, because he assumed they sinned out of ignorance. Williams responded that Cotton was naively overestimating how much consensus there was among men about what the Bible meant, indicating that the key issue was of consensus and agreement.

Joseph Story's commentary on the First Amendment, after arguing that religious establishments are not necessarily to be avoided, and that Massachusett's provision is a model of government, says, "[I]t was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power." In other words, because there was no consensus of which religion the federal government ought to establish, that matter had to be left to the states, at which level of government a consensus could perhaps be achieved.

So I would say that one of the central pillars of Calvinism is that of consensus and avoiding coercion against conscience. After all, what else can the Reformed concept of "covenant" (federalism) mean? The entire point of that concept is that God, instead of giving the Torah by fiat, instead gave the Jews the choice of whether or not they wanted. The entire point of that entire doctrine is that God does not coerce, and that men should not either. To quote Thomas Jefferson's "The Virginia Act For Establishing Religious Freedom ", "Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do..." Jefferson is expressing quite normative Reformed federalism here: God's covenantal example of offering the Torah by choice rather than by fiat, is an example for man to imitate.

Therefore: today, when we - unlike the Framers - lack a consensus on which moral philosophy is the true one, the only logical conclusion, according to Calvinism, is to have the government pursue a laissez-faire policy in the area.

to be cont.

Mikewind Dale (Michael Makovi) said...

cont. from above

But I do not wish people to sin, and I do not reject society. It is just that I would rather educate them and have them choose to avoid sin, than coerce them; and I want society to be organic, not artificial(sphere sovereignty).

One of core doctrines of federalism, was that when men imitate God's example of covenant, and form mutual and voluntary covenants amongst themselves, this act of federalism brings out the best in man's nature, and helps reveal the image of God within him. Men are truly men in God's image when they act according to voluntary contract, and form social bonds not by coercion and force, but by consent. If man is a social animal, then he is truly men when his society is organic and spontaneous, not artificial and imposed.

"I call heaven and earth to record this day against you, that I have set before you life and death, blessing and cursing: therefore choose life, that both thou and thy seed may live." Notice that God, not man, gave the choice between life and choice, and that it is a choice. It is for God to command, and for each man to choose for himself which path to take.

I do not want any man taking the place of God and commanding in His stead. Given that there is no consensus today on what God wants, it is obvious that any man who commands in His name, is attempting to arrogantly place himself in God's stead, for he must surely know that he is expressing his opinion of what God wants, and not what God Himself necessarily wants. It is patent and obvious idolatry.

Mikewind Dale (Michael Makovi) said...

The attempt to enforce the second tablet of the Ten Commandments, perforce violates the First Commandment.

Tom Van Dyke said...

One of the basic foundations of federalism and social-contract, is the concept of consent.

After all, what else can the Reformed concept of "covenant" (federalism) mean?

I think you're running concepts together.

The US is not a "covenant." The Constitution is a "social contract," but only in a limited sense. Unalienable rights cannot be "contracted" away. This is James Wilson's main argument against Blackstone, Burke, and the "social contract."

Further, federalism means the states still have their sphere of autonomy and sovereignty as well. that's what Joseph Story is getting at.

And just because the zillion sects of Protestantism made establishing one church impossible, this doesn't mean they didn't agree on a baseline that included many areas, esp the ones that could also be derived by reason per natural law: don't steal, don't murder.

Nobody's talking about imposing Mosaic law here. They don't even do that in Israel. You're overshooting the mark tremendously with "covenant" and what amounts to theocracy, or Bibliocracy.

Hell, dude, even Christians don't want to live under that. The Puritan concept died off well before the actual Founding. Don't get sucked in by all this Dominionistophobia!

Mikewind Dale (Michael Makovi) said...

I would say that "social contract" is an evolution of the Reformed covenant. Heck, we're even continuing to use the word "federalism", meaning "covenantalism" (Latin foedus). So if we say the United States government has federalism, then that means there is a covenant between the states and the federal (covenanted) government.

And social contract does NOT allow you to contract away your rights. Rights are unalienable and God-given: see the Declaration, and cf. Samuel Adams, "The Rights of the Colonists": "n short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave."

As for Story, the question is, why do the states have sovereignty? The more states'-rights type members of the Constitutional Convention, and the Antifederalists, would usually argue something along the lines that local authorities knew the conditions and needs of the populace better than distant authorities, and that a general government would sell some men to give benefits to others. So again, the entire point of states'-rights is to ensure that no one is governed except by consent and consensus, by someone with whom he agrees and shares all his interests. Logically, then, if the state is also too diverse and pluralistic, then power would have to be handed on down to a yet more local level, until eventually, we might just be better off declaring every household his own sovereign government.

You say, "And just because the zillion sects of Protestantism made establishing one church impossible, this doesn't mean they didn't agree on a baseline that included many areas, esp the ones that could also be derived by reason per natural law: don't steal, don't murder." That is exactly my point. They had a consensus, but we do not. If we take the same basic ideology they had, but apply it to our conditions, where we have not only religious disagreement but also moral disagreement, and lack consensus not only in theology and ecclesiology but also in morality, then the logical conclusion is to apply the separation of church and state to the moral sphere as well.

Today, what Bibliocracy and Biblical theocracy logically entails, is radical libertarianism.

Mikewind Dale (Michael Makovi) said...

And I think the difference between social contract and covenantalism, is precisely that as men became more pluralistic and diverse, they realized that they could not well execute a Godly covenant when they couldn't agree on what the Bible said. But they still at least shared the same ideas about morality, and they could still work together as men, so they shifted it from a covenant with God and man to a contract with man. Basically, they shifted from particular grace to common grace, and made a compact based on what they still had in common, their humanity. But the underlying idea of covenant and contract remains one and the same.

And compare Edwin S. Corwin's The "Higher Law" Background of American Constitutional Law, p. 4: "The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice.... There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community."

So what ought to happen, I ask you, when we no longer agree on which principles are so immutable and axiomatically excellent?

Tom Van Dyke said...

Aw, Mike, yr premises are conflated.

James Otis [versus Locke] specifically challenges "social compact" rather than rights. James Wilson explicitly challenges Blackstone and Burke along the same lines, that their scheme has the state granting rights. What seems to you a settled issue was a live wire back then.

Indeed Britain still has no "right" of freedom of speech!

Now the states had their sphere of sovereignty, over everyday life. And localities exist under the sufferance of the state. Power doesn't devolve all the way to the household.

They had a consensus, but we do not. If we take the same basic ideology they had, but apply it to our conditions, where we have not only religious disagreement but also moral disagreement, and lack consensus not only in theology and ecclesiology but also in morality, then the logical conclusion is to apply the separation of church and state to the moral sphere as well.

But we do arrive at consensus. Happens all the time. Still can't have sex on the sidewalk.

We still have a semi-functional representative democracy, the vehicle and manifestation of consensus.

The courts intrude, but that's a separate issue. Or perhaps it's not. The courts sometimes embrace your epistemological nihilism re morality; since consensus is impossible, throw out all morality.


See, the "solution" you've introduced is "neutrality." But "neutrality" isn't neutral atall.

I yield the floor to a better mind than mine:

[Follow also the link to the "Self-Ownership" paper.]

Mikewind Dale (Michael Makovi) said...

Could you please provide me some representative quotations, or at least citations? I haven't yet seen that discussion of whether rights are from God (or at least, natural and inherent) or from the state.

Well, I know of the issue, but usually I've seen it as a debate between classical liberalism / libertarianism on the one hand, and Communism or Progressivism or some such on the other. I mean, it was always religious anti-statists vs. secular statists. I hadn't seen the discussion within the classical liberal tradition.

In any case, whenever I speak of "social contract", I am assuming of the natural law and unalienable rights sort. I don't even understand how the state could possibly grant rights under the social contract, because the people themselves created the government! If the people create the government, and grant it all its powers, then how can the government in turn grant anything? Everything it has, was given to it by the very people it is now trying to give rights to. Power flows bottom-up, not top down! The entire idea of government granting anything, is so logically incoherent, that I never realized any classical liberal could be idiotic enough to argue it. So I'd like to see some quotations or at least citations. Thanks!

When I say "consensus", I mean nearly unanimous consensus.

I'll have to look at the link; thanks.

Mikewind Dale (Michael Makovi) said...

Or, for example, there is Alexander Hamilton arguing against the Bill of Rights, saying that we don't need any Magna Carta-type gracious and paternalistic grants from the government. But there, Hamilton had no opponent arguing in favor of such a gracious and paternalistic grant by the government.

Hamilton's opponents would have argued that the Bill of Rights would be a Magna Carta-type populist revolt against the government and demanding the protection of their God-given natural rights. Cf. Samuel Adams, "The Rights of the Colonists": "Magna Charta itself is in substance but a constrained declaration or proclamation and promulgation in the name of the King, Lords, and Commons, of the sense the latter had of their original, inherent, indefeasible natural rights, as also those of free citizens equally perdurable with the other. That great author, that great jurist, and even that court writer, Mr. Justice Blackstone, holds that this recognition was justly obtained of King John, sword in hand. And peradventure it must be one day, sword in hand, again rescued and preserved from total destruction and oblivion."

So there, no one was arguing that government could grant rights, and both sides rejected that notion. Hamilton thought a Bill of Rights would smell like a rat and harken back to governments' granting rights, while the Antifederalists thought that no such thing was implied, and saw the Bill of Rights as Adams there did.

Tom Van Dyke said...

Well, the people who did the agitating in the Magna Carta times thought they had rights. However, what they wrested from the king was a set of enumerated rights.
This is not the American scheme, where it's the central gov't that has enumerated powers. This addresses most of the opposition to a Bill of Rights and your argument from Hamilton, that enumerating rights would impose a limit on what are unenumerated rights. [Hence Amendments 9 & 10, see texts.]

In any case, whenever I speak of "social contract", I am assuming of the natural law and unalienable rights sort. I don't even understand how the state could possibly grant rights under the social contract, because the people themselves created the government!

I just think you're taking America for granted as a starting point. But it's quite unique in world political philosophy and history, and even though many other systems have modeled themselves after ours, they have not quite the same fundamental premises.

Per request, James Otis v. Locke [1764]

"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."

The James Wilson v. Blackstone and Burke

"Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone." ---Wilson, Of the Natural Rights of Individuals

[These are rather my own contributions from my studies. I haven't seen this argument in this form anywhere else.]

[The French Rights of Man is a separate study. Although it asserts unalienable rights, it also asserts that law is the expression of the "general will," and may proscribe that which is "harmful to society." The Reign of Terror and the general will, of course, decided what was "harmful to society."

The general will is not synonymous with natural law, and the end result is that the "general will" really has no limits, no "higher power" or principle to answer to.

The American scheme of unenumerated rights actually requires things that are "harmful to society," free speech perhaps primary. Remember, Athens put Socrates to death for no more than speech.]