Below is my more glib analysis:
[America is] a democracy and a republic. Revolutionary France called itself a republic. France also recognized a "higher law" -- a theism to undergird its principles to which they appealed; they simply -- like America -- re-envisioned this monotheistic God to be more "revolutionary." And this is one reason why many American Christians at the time supported the French Revolution and saw it as a continuation of the American.Okay, so first Barton claimed the difference between revolutionary America and France is that America was founded to be a "republic," France a "democracy."
This is false. The terms "democracy" and "republic" accurately describe both founding era America and revolutionary France. The terms are not mutually exclusive. And yes, America's Constitution promises each state a "republican" form of government. Revolutionary France, likewise termed itself a "republic." (That is they didn't say, "we are a democracy, not a republic.")
(For more on why America is both a "democracy" and a "republic" see Eugene Volokh's post here.)
Second, Barton intimates a feature that distinguishes democracy and republic is that democracy is "the will of the people," republic is "higher law" (which Barton apparently conflates with his understanding of "the Bible").
I think a kernel of truth lies underneath Barton's confusion. Democracy, in its rawest sense, does mean "majority rule," at its worst "mob rule," something arguably more present in the French Revolution than the American. Both the late 18th Century American and French systems sought to pay due respect to "the will of the people." And both believed in limits on such. Small r "republican" checks on the "democratic, majoritarian" process. Such "republicanism" means certain structures are built into the system that operate as as check on raw democratic majoritarian rule.
And those "checks" don't necessarily have anything to do with "higher law." Rather they are things like the checks and balances built into the American constitutional structure, the separation of powers, and the fact that it's elected representatives as opposed to "the people" themselves who write the statutes. The people elect the representatives to "do their will." And most of the time, hopefully, the "will" of both converge.
But not always. When "the people" are subject to fanatical passions, America's founders hoped the will of the more elite refined elected representatives would temper those passions.
Barton's misrepresentations relate more to the nature of unalienable rights. The "liberal" qualifier in the concept of "liberal democracy." If we were a pure "direct democracy," then majority would always win. But that's not our system. Rather, majority wins sometimes, most times in fact. But not always. Certain rights are antecedent to majority rule. Those are the small l "liberal" rights with which a small d "democracy" must deal.
That's one "republican" check on the democratic process, among many, in the kind of "democratic-republic" that both America and France in the late 18th Century were founded to be.
There is no easy answer for determining, in politics, which principles the majority gets to "win on" and which principles are antecedent to majority rule. Harry V. Jaffa termed this dilemma the "Crisis of the House Divided."
("All men are created equal" + the rational truth that blacks are "men," that is "mankind" or human beings = slavery has got to go; but the Constitution makes compromises with the institution of slavery. The Declaration + Constitution put together = an anti-slavery Founding and Lincoln securing a promise America's Founders made but could not or did not keep.)
One way in which to "settle" the issue as to which rights are "liberal"-- that is, antecedent to majority rule -- is tie them to God. This is what Barton intimates distinguishes the American Founding from the French Revolution.
But revolutionary France too tied their liberal rights to God. In fact, all three of France's "Declaration of the Rights of Man, like America's "Declaration of Independence" appealed to a generic deity as the ultimate guarantor of liberal rights, antecedent to majority rule.
This should surprise not as America's Declaration of Independence greatly inspired the French Revolution and its author, Thomas Jefferson, went to France and assisted in the writing of their Declaration of the Rights of Man, fomenting the French Revolution.
Barton seemingly intimates the theistic "higher law" that undergirds liberal rights in America's system is, unlike that of the French Revolution, from the God of the Bible. But America's Declaration of Independence doesn't claim this. Instead, it appeals to a God in four places [1. Natures' God; 2. Creator; 3. Divine Providence; 4. Supreme Judge of the World] without ever explicitly identifying such God as the Christian one, or quoting verses and chapter of Scripture. The revolutionary French documents do more or less the same appealing to the generically defined "Supreme Being."
During the Founding era, the term "nature" especially as it relates to religion means discovered by reason as opposed to revealed by God in sacred scripture. As it were, the phrase "laws of nature and of nature's God" is a double invocation of reason. Yes, I would say, America's Founders like the French Revolutionaries believed in a higher law as ascertainable by reason.
Christians, yes, after thinkers like Thomas Aquinas believe in such and make "reason and revelation," properly understood work together. And the principles of the French Revolution are compatible with such. This is why so many Christians of apparent orthodoxy like Ezra Stiles supported the French Revolution and saw it as a continuation of the American.
15 comments:
Actually, Barton has a viable argument, not too difficult to understand if one is familiar with the sources. from the John Fea blog:
Blogger Tom Van Dyke said...
"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."--Blackstone
It's not all that mysterious what he's trying to get at. We have rejected natural law for positive law these days, but we didn't always.
Commentaries on the Law of England
Sir William Blackstone
Section 2
Of the Nature of Laws in General
http://www.laits.utexas.edu/poltheory/sidgwick/elempol/elempol.c02.xr03.html
September 4, 2015 at 8:03 PM
Blogger John Fea said...
Tom: What does this have to do with the difference between a republic and a democracy and the difference between the United States and France and the way our government operates?
September 4, 2015 at 7:15 PM
He's asserting that democracies such as France did not respect a higher law above man-made law. American anti-slavery advocates argued that there is, although as we see, it usually didn't work. But how much do we admire those who upheld slavery on the grounds of positive law?
Review of “Justice Accused: Antislavery and the
Judicial Process,” By Robert M. Cover
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2945&context=law_lawreview
To establish the intellectual background for this judicial dilemma,
Cover considers at length the interplay between natural law and legal
positivism. Noting the persistent resort to natural law theories by antislavery
advocates, he points out that the very ambiguities of the concept
made it "a tool for expressing moral doubt and concern about slave
law"' 8 and "a device for expressing the gap between the law as it is
and the law as it ought to be."'
Under the influence of ideas expressed
in the late 18th century by Montesquieu, Blackstone, and Lord
Mansfield, any possible justification for slavery based on natural law had
disappeared. On the other hand, these same authorities acknowledged
that, if sanctioned by positive law, slavery could rightfully exist. As
this deference to positive law suggests, natural law occupied a lesser
place in the judicial scale of values than constitutions, statutes, and
precedents. Moreover, the decades following the American Revolution
saw many commentators reject natural law as a vehicle for the
formulation of social policy.
For all its practical limitations, the natural law tradition indicated that
slavery was contrary to the inherent right to liberty. As Cover
observes: "To speak of slavery as against natural law, even if the legal
consequences of the statement were few and undramatic, was to admit
the moral blemish on the system."' Yet the uses of natural law remained
obscure. Was natural law simply a sort of residual body of authority,
available only when other sources of law did not reach a given
situation? To what extent could it be used in the interpretation of acts
of positive law? Did natural law have any role when the positive
law unmistakably established slavery?
BTW, Barton refers to "4 types of law," which is Aquinas. [Blackstone had 6, but they're similar.]
http://people.wku.edu/jan.garrett/302/aquinlaw.htm
Aquinas recognizes four main kinds of law: the eternal, the natural, the human, and the divine. The last three all depend on the first, but in different ways. Were we to arrange them in a hierarchy, eternal would be at the top, then natural, then human. Divine law is not in conflict with natural law, but it reaches human beings by a different route, revelation.
David Barton usually has something substantive in mind, although what comes out is often a jumble. However, his point here could be whipped into shape.
“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”---MLK
http://www.nationalreview.com/article/423592/kim-davis-and-civil-disobedience-nicholas-frankovich
The problem that Barton and Beck and all other assorted Christian-theonomists, -theocrats and -reconstructionists and their apologists have is that they must overcome the specific and legally binding language of the U.S. Constitution, which was signed and ratified by the esteemed founders/framers, as well as “the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States,” as the “supreme law of the land.”(1) And, nowhere in that constitution does it mention that any other law, nature’s or divine or otherwise, takes precedent. And, to the best of my knowledge, the Constitution passes constitutional muster.
Another problem that they have to overcome is what is meant by the natural law, for which there is no singular notion that could be constitutionally established. Is it the Greek Stoic version, Cicero’s version, Aquinas’ (roughly the Catholic Church’s) version, Spinoza’s version, Calvin’s version, Liebnitz’ version, David Barton’s version? There is no agreement on what the natural law is much less how it should be applied except as a nebulous guide to developing and keeping in check the positive law of nations, counties and towns. Is the natural law determined via reason and nature, religious revelation or both?
It’s fairly obvious that Barton’s version of the natural law boils down to the Christian Mosaic law, or at least as much of it that he wishes to select, and revelation, or at least that which he finds to his liking. And he’s willing to adapt Thomist notions of law to that end. He is doing nothing but attempting to sacralize the secular, to combine Kingdom's if you will, to gain political power and privilege for a select group (not to say that he is not sincere in his particular religious faith). If the founders/framers meant for the Bible and Mosaic law to be the supreme law of the land they clearly had the writing skills necessary to have conveyed it clearly and unambiguously to posterity without need of the extra-constitutional and elaborate rhetorical and theological gymnastics of the Becks and the Bartons of the world.
Biblical law, ala Beck and Barton, is outside the authority of the United States’ political constitutional establishment – there is no successful way for a government, that is established to manage the secular and temporal world and to protect its citizen’s rights (all of the citizens and not a select subgroup), to determine biblical interpretation or establish implementation, especially, in a religiously and philosophically diverse and pluralistic society. At least not without significant coercion which brings us back to the establishment problem and religious sectarian authoritarianism. The founders/framers, who were well versed in the history of European religious sectarian violence and strife, knew this problem all too well.
1) Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Circular. The Constitution's supremacy clause does not grant to the central government powers it's not specifically given. It is not the supreme ruler of the land, only the highest legislature.
The Constitution was conceived as giving only certain enumerated powers to the central government. The supremacy clause, the "law of the land," applies only to what the central government is constitutionally empowered to do.
Of course, today the federal government claims absolute power over every facet of our lives, but this does not mean it's a legitimate power, nor are we bound by any moral law to bow to it against our consciences--a moral fact implicitly in the First Amendment's free exercise clause.
"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."--Blackstone
“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”---Martin Luther King
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."--Jefferson, et al.
Barton may lose before the power of the state, which has the biggest guns. But his argument is tenable and timeless. It's disappointing that their critics are so blinded by their animus against Barton and Beck that they have forgotten the Founding principles.
The problem that Barton and Beck and all other assorted Christian-theonomists, -theocrats and -reconstructionists and their apologists
They are none of the above--you need to back up your charges. Lobbing those words like hand grenades works inside the leftist bubble, not out here in the real world.
This isn't to say Beck and Barton aren't in a similar bubble of their own, but for the purposes of this blog, you're even more historically clueless than they are, and far less well-behaved.
And you really need to start signing your real name if you're gonna come around here talking shit, dude. Man up. Jon and I butt heads bigtime, but we don't just sign our real names, we're friends in real life. This blog is for real.
In the real world there are Barton and Beck and other assorted Christian-theonomists, -theocrats and -reconstructionists and their apologists. Sorry if this thought offends you. I assume it hits too close to home.
Hey dude, it's a blog comments section. I commented.
...historically clueless than they are, and far less well-behaved..."
Nice ad hominem ya got going there. No sense dealing with the substance when you can just attack the messenger.
As to well behaved, I've seen your comments here and elsewhere over the years and I laugh at your blatant disingenuousness. Perhaps you'd like to recap some of your recent, more civil moments at the Old Life hangout where you use gutter profanity to attack Dr. Hart (aka "Butch", aka "Dr. Calvinism; a History"), his band of "Eunuchs," and their religion. All because they don't subscribe to your narrow religious and political ideology. Talk about talkin' shit, dude. You are so real, dude.
No substance. They're not theonomists. That's a lie.
is that they must overcome the specific and legally binding language of the U.S. Constitution,
Do you ever tire of the pretense, or are you under the illusion that constitutional text and history motivate the appellate judiciary or aught but a small minority of elected officials? If the 'legally binding language of the U.S. Constitution' were actually adhered to, precious few innovations in political economy adopted after 1932 would survive and all the salient non-negotiables of Warren Court and Burger Court jurisprudence would be in the ash can except, perhaps, some re-apportionment decisions. The only thing that would save any of it would be stare decesis.
"Do you ever tire of the pretense..."
At least I don't suffer from the pretense that the Declaration of Independence and the Mosaic law are legally binding appendages to the constitution.
At least I don't suffer from the pretense that the Declaration of Independence and the Mosaic law are legally binding appendages to the constitution.
You don't suffer from an aversion to evasive replies, either.
Okay, so first Barton claimed the difference between revolutionary America and France is that America was founded to be a "republic," France a "democracy." This is false. The terms "democracy" and "republic" accurately describe both founding era America and revolutionary France. The terms are not mutually exclusive.
Again, the effect of the war on institutions was to disestablish the monarchy, dispose of the authority of parliament, and erect what amounted to something between a standing diplomatic body and a central government. There were adaptive changes to colonial institutions as state constitutions replaced colonial charters, but these were incremental amendments. The eventual erection of a central government was a response to extant political problems and inspired by extant political forms, not a contrivance of coffee house intellectuals. A five-digit population of United Empire Loyalists went into exile, some of them expelled by statute.
The contrast with what happened in France was stark. The French provincial architecture was completely reconstituted (along lines derived from technological considerations). Extant provincial and municipal bodies were reconstituted. The residual general legislature. An on-site executive monarchy (not a residual executive at a great distance) was disestablished. The extant orders of French society were disestablished, re-constituted, or liquidated. The nobility was stripped of its lawfully recognized titles and residual tenures over rustical land. The Church was stripped of its liberties and residual tenures and placed under an alien corporate architecture which denied its apostolic character. The body of law in France was codified by panels of Napoleonic experts.
And did I mention the sanguinary intramural violence? The intensity of the Terror alone likely exceeded that of the Revolutionary War, much less the terror, the Vendee, and the Napoleonic Wars.
Art:
I agree with much of your analysis. The principles of both the American and French revolutions were quite similar (founded on liberty and equality), with, granted the French being somewhat to the left (Rousseau had more ideological influence in France than in America).
But the main difference was how those principles were implemented. In America, it was gradual. But America didn't have a monarchy to depose and a nationally established church to disestablish. We just needed to tell the Brits to scram and then deal with the loyalists.
I'll let purveyors of political theory plumb the implications of an affection for Montesquieu and Locke over an affection for Rousseau. What one can observe of the French Revolution and the American Revolution indicates it had different social and psychological well-springs.
The question at hand would be to what extent discretionary decisions by political actors are controlling and to what extent mass phenomena are controlling. That's tough generally. However, the Civil Constitution of the Clergy cost the Revolution the acquiescence of both the King and the bulk of the clergy. Simply ending mandatory tithes, recusancy laws, tests for public office, state investiture, tricameral Estates, and proscriptions on minority sects would have 'disestablished' the Church quite satisfactorily. The clergy could have been supported by donations and its income from property, but less flush. The nobility might conceivably been left with the demesne land they were able to hold against local mobs and their titles and some courtesies, but not their immunity from taxation or other legal privileges. The Provincial Estates might have been revived with revised rules, not replaced with departments which acted as a conduit for a stupefyingly centralized state.
I cannot figure your reference to gradualism, because the only salient feature of the French revolution which might be deemed more gradual than similar political processes in the United States would be codification of laws, which was largely complete in France by 1807 but took another century in New York (to take one example). I suppose disestablishment of churches could be so regarded, as it took about 25 years in the States. However, more salient was that it did not in this country encompass intrusive corporate law or property seizures (or madcap attempts to start a new deist religion or institute a new calendar).
French institutions arising from the revolution were the artifact of intellectuals who obliterated previous forms. American institutions were an incremental adaptation of previous forms.
Art Deco said...
I'll let purveyors of political theory plumb the implications of an affection for Montesquieu and Locke over an affection for Rousseau. What one can observe of the French Revolution and the American Revolution indicates it had different social and psychological well-springs.
Absolutely. The most frightening words in the world are from Rousseau in the French "republican" Rights of Man:
Law is the expression of the general will.
The "general will" scares the living hell out of me. This is what he was trying to get at.
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