Sunday, April 11, 2021

States of Nature and the American Founding

See this article entitled "Natural Rights, Natural Law, and American Constitutions" by law professor Philip Hamburger for a comprehensive review on the subject. Hamburger is an ace with the primary sources. Though, when dealing with scholars like him who have their facts straight, it's with the "putting them together and analyzing them" part where the disagreements are apt to occur.

And indeed, while there are plenty of contentious assertions, arguments and analyses in Hamburger's article, it also serves as a valuable resource of primary sources. One of the things I find fascinating about the "state of nature"/social contract and rights teachings is that the pulpit -- "election sermons" -- was a chief vector for transmitting these teachings.

It's ironic because the "state of nature"/social contract and rights is not a traditional biblical or Christian concept. But the patriotic preachers embraced it.

As Hamburger notes on page 12/917 of his article:
Election sermons contained a wealth of rather conventional political theory. One Connecticut minister began an election sermon on divine government by explaining that civil government had been "so often, and so well treated of upon such Occasions as this; that it is needless to add any thing ...on this Subject." From another point of view, the polemical Dean of Gloucester worried about the influence of American ministers and complained of "their preferring and inculcating principles of Mr. Lock instead of the Gospel, relative to the original titles of civil governors."

Before I get deeper in Hamburger's research let me note a few things his article doesn't. First the concept of "the state of nature"/social contract and rights ties together three big philosophers of "modernity": Hobbes, Locke, and Rousseau. America followed Locke, not the other two.

However, the three philosophers are connected by a shared common philosophical ground (what Leo Strauss termed the "low but solid ground" of modernity). For our purpose, Hobbes initiated the concept, however even he wasn't the first to do so. Rather, we can trace it back to William of Ockham.

(One critique of that "common ground" -- and this includes Ockham who predated the other three -- is the concept of the "state of nature" seems philosophically nominalist; but that's a discussion for another day.)

But again, America followed Locke's understanding of the concept. On pages 12-13/918-19, Hamburger summarizes America's understanding of Locke's teachings:  

... On the assumption that the state of nature was a condition in which all humans were equally free from subjugation to one another-in which individuals had no common superior, Americans understood natural liberty to be the freedom of individuals in the state of nature. That is, they understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government. A natural right was simply a portion of this undifferentiated natural liberty. Accordingly, Americans often broadly categorized natural rights as consisting of life, liberty and property, or life, liberty and the pursuit of happiness. Americans could, however, be more specific. They repeatedly said that the free exercise of religion or freedom of conscience was a natural right. They also talked of the freedom of speech and press as a natural right. ...

See also JOHN LOCKE, TWO TREATISES OF GOVERNMENT 322 (Peter Laslett ed., 2d ed. 1967) (bk. UI, ch. VI, § 54) as cited in Hamburger's article on pages 13/918. 

The bottom line is that a government was formed via social contract where because of "inconveniences" in the "state of nature," society banded together.

What I find of interest in Hamburger's article is that it shows where Americans disagreed on exactly how to apply Locke's concept. I find it of interest, and perhaps this relates to why Americans disagreed here, because I don't fully yet understand it: American Lockeans disagreed on what portion of natural liberty, if any, was surrendered when individuals came out of the state of nature and formed a social contract?

As Prof. Hamburger writes on pages 41-42/946-47 of his article:

... Jefferson similarly denied the commonplace that individuals in the state of nature sacrificed some of their natural liberty to government to preserve the rest: "No man has a natural right to commit aggression on the equal rights of another .... When the laws have declared and enforced all this, they have fulfilled their functions; and the idea is quite unfounded, that on entering into society we give up any natural right." Letter from Thomas Jefferson to F.W. Gilmer (June 7, 1816), 11 THE WORKS OF THOMAS JEFFERSON, at 534 (Paul L. Ford ed., 1888) ....

The truism that men sacrificed some of their liberty to government rested upon the assumption, frequently made explicit, that the liberty given up was the physical freedom or power to do as one pleased without subjugation to others. [Nathaniel] Chipman and Jefferson, however, incongruously discussed the formation of government in terms of the other, less expansive type of natural freedom-the noninjurious or moral liberty defined by natural law. Having done this, they had no difficulty denying that any natural right was sacrificed. They thereby attempted to confute a traditional maxim of political theory by misstating one of its well-known presuppositions. Of course, it was Jefferson who took this refutation and gave it an unusually dramatic and extreme formulation. 

And then on page 53/958 Prof. Hamburger writes: 

Most dramatically, the account of natural liberty presented here can help us understand what might otherwise appear to be contradictions or paradoxes in constitutional law. For example, Jefferson said both that natural rights were sacrificed to civil society and that no natural rights were sacrificed to civil society.135 Theophilus Parsons similarly seemed to contradict himself. ...

Insofar as I understand his argument, Hamburger argues that the consensus of Americans believed, coming out of the state of nature where they possessed natural liberty, they surrendered their natural rights for civil rights, as per the "social contract." This is also what East Coast Straussians like Walter Berns (cited elsewhere in Hamburger's article) have argued. Others like Thomas Jefferson and some other less "key" (well known) Founders (like Chipman and Parsons) believed people surrendered none of their natural rights when forming civil society. 

But they were the outliers. (By the way, I'm not convinced Hamburger's analysis is correct, here.)

27 comments:

Tom Van Dyke said...

The very use of "unalienable" establishes that some rights ['natural' rights] are pre-political and not bartered away to the 'social contract.'

But you are correct that the question was not settled: IIRC, Gouverneur Morris said somewhere they were, but James Wilson [the better thinker and perhaps even the best mind of the Founding] said they were not:

The opinion has been very general, that, in order to obtain the blessings of a good government, a sacrifice must be made of a part of our natural liberty. I am much inclined to believe, that, upon examination, this opinion will prove to be fallacious. It will, I think, be found, that wise and good government — I speak, at present, of no other — instead of contracting, enlarges as well as secures the exercise of the natural liberty of man: and what I say of his natural liberty, I mean to extend, and wish to be understood, through all this argument, as extended, to all his other natural rights.


What we can say for certain is that for the sake of peace and prosperity, Thomas Hobbes' Leviathan demanded the total surrender of all rights--and the Founders were unanimous in their rejection of that proposition. So if some rights were retained as unalienable, which are they? This is why so many insisted on a Bill of Rights, to assay them.

Jonathan Rowe said...

"But you are correct that the question was not settled:"

Yup. Probably my biggest beef with Hamburger. If ever does stumble onto my comments about him, I hope he knows that I respect his brilliance. But he is most certain a thesis based advocate for certain positions; but he writes these clever narratives like he is just stumbling onto what he discovers and meticulously reporting the facts.

His article is actually a very sophisticated analysis where he tries to demonstrate the Jefferson position (that individuals retain their natural rights while coming out of the state of nature) was the incorrect understanding of the "American" understanding.

Jonathan Rowe said...

The whole legal positivism v. natural rights is too complex for even most smart informed folks to fully comprehend. Let's say that you do believe that individuals should retain as much as of their natural rights as possible when coming out of the state of nature?

Okay. How do we accomplish that? One answer is simply through the positive law. Constitutions (enacted by supermajorities) and statutes enacted by legislatures. And you simply simply get what the positive law enacts. If it's not perfect, then work within the system to change it.

Courts can't invoke it. So it all collapses into positivism anyway.

Tom Van Dyke said...

Very worthy comments in both rebuttals to my comments above, my blogbrother, but I will distill it to this for now:

His article is actually a very sophisticated analysis where he tries to demonstrate the Jefferson position (that individuals retain their natural rights while coming out of the state of nature) was the incorrect understanding of the "American" understanding.


Are you arguing Jefferson as the foremost proponent of natural rights. And if so, on what basis? "Endowed by their creator"? NATURAL Rights?

I would agree that is the Jefferson of the Declaration but I think his record is spotty after that. The French Rights of Man [on which Jefferson was consulted] reject any divine sanction and even [a higher] natural law as their authority.

Jefferson was a democrat--small "d". Vox populi, vox dei.

Jonathan Rowe said...

Actually I think the view you ascribe to Wilson's is Jefferson's too: That we don't surrender natural rights coming out of the state of nature and government's role is to enhance those rights.

Hamburger tries to argue, I think, that this view was, incorrect, contradictory and didn't prevail.

Jonathan Rowe said...

This is the money paragraph (to me) in Hamburger's piece:

"Third, under civil government-that is, under secular government and its
legal system-natural liberty was available only as permitted by civil law. To protect themselves and their natural liberty from those who did not conform to the law of nature, individuals in the state of nature, Americans said, sought the protection of government.

"In particular, the people adopted a constitution in which they submitted some of their natural liberty to government in order to obtain the protection of government and its laws for the remainder. As a
result, natural rights, including the natural right of free speech and press, were retained under civil government only to the extent permitted by the constitution and other civil laws."

I could have stopped after the first sentence. But to me this is what I mean by all of it collapsing into the positive law anyway.

As I read this, you are trading your natural rights for positive legal civil rights and you'd better hope you do so in a way that gives you a good constitution and set of civil laws.

Jonathan Rowe said...

You could put an ellipses between the first and last sentence to get the point.

"Third, under civil government -- that is, under secular government and its legal system -- natural liberty was available only as permitted by civil law. ... As a result, natural rights, including the natural right of free speech and press, were retained under civil government only to the extent permitted by the constitution and other civil laws."

Tom Van Dyke said...

"natural rights, including the natural right of free speech and press, were retained under civil government only to the extent permitted by the constitution"

I don't see how that squares with

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


Enumerating certain rights does not limit them.

Jonathan Rowe said...

Yup. But now you are on Barnett's side and not Hamburger's, Bork's or perhaps even Scalia's.

Our Founding Truth said...

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


More enlightenment rationalism that was never explained, which opened a pandora's box of made up rights not found in the bible. I'm surprised Democrats haven't used the 9A to promote rights for: healthcare, housing, income; everything. But, alas, it's only a matter of time.

Tom Van Dyke said...

Our Founding Truth said...
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


More enlightenment rationalism that was never explained, which opened a pandora's box of made up rights not found in the bible. I'm surprised Democrats haven't used the 9A to promote rights for: healthcare, housing, income; everything. But, alas, it's only a matter of time.



Jim, if you're going to rejoin the conversation hereabouts--and your research into ORIGINAL SOURCES and quotes has always been a HUGE contribution as a friend of our blog--please back that one up.

I view the 9th Amendment as a natural law/natural rights backstop that SHOULD have been unnecessary just as the Bill of Rights SHOULD have been unnecessary.

And as a point of order, Jim--we have seldom if EVER used the words 'Democrat' or 'Republican' here at AC in our study of the American Founding because that distinction did not yet exist.

Please observe that courtesy. The arguments here on this blog are not ignorant of the divide in the 21st century but we argue principles, not parties.

That's the whole reason for this blog and the reason it still exists. ;-)

Our Founding Truth said...
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Our Founding Truth said...
This comment has been removed by the author.
Our Founding Truth said...

The Democrat party started in 1793 and that distinction did exist against them; ask John Marshall, Joseph Story and James Kent. 1793 was close to the time the rights were ratified. No matter, it's self evident one party desires to eliminate the principles espoused on this blog (the bill of rights). See Heller decision. In fact, these principles mean nothing if you don't have the bill of rights to apply them.

Natural rights are only to exist in relation to the divine words in the bible. This is why Wilson links all human laws under the authority of the bible. :

“Human law must rest its authority ultimately upon the authority of that law which is divine. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”
-James Wilson

The 9A is the perfect vehicle to grant rights not enumerated in the Constitution. It only takes a little discernment to see that healthcare will be made a right. Would Wilson have any cause for concern to see natural rights established from outside the authority he proclaimed; the bible? Absolutely not. He helped start it all.

Jason Pappas said...

It's great to see a lively and thoughtful discussion still continues here. I'll mention briefly that also writing in the 1990s on this topic was Michael P. Zuckert (Notre Dame). If I remember correctly (after all these years) Zuckert argues that Locke hold the the only right one surrenders coming out of a state of nature is the "executive function" of being judge and jury of another's violation of one's right. Also writing in the 1990s is Jerome Huyler (Seaton Hall) with similar thought in his "Locke in America." This was back during the raging debate between "civic Republicanism" vs. "Lockean liberalism".

More importantly, I'm glad to see you guys have come through the pandemic--alive and thinking!

Jonathan Rowe said...

Thanks for checking Jason. We've slowed down a bit. But we are all alive (actually Mark D. passed away) and I think hope to continue this project indefinitely.

Jason Pappas said...

Good to hear. Although I've been immerse in other subjects, I still direct people to the blog when the subject arrises.

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