Wednesday, March 16, 2011

Liberality and Its Limits

In this delightful article (hat tip: Jon Rowe below) Philip Hamburger explores liberality as a sentiment at the time of our founding. The article is quite lengthy but it raises interesting questions, some of which Tom deals with below.

The liberal sentiment is put forth as another factor in contrast to individual rights and republican civil virtue. There is some notion that these factors conflict even as the author mentions in his concluding section (p1284) “ ... few Americans yet had reason to question the essential compatibility between liberality and virtue ... “ So we have in addition to the supposed conflict between individual property rights and civil republicanism the pull of liberal sentiment.

Liberal sentiment is described as “generosity” as opposed to “selfishness”, open and broadminded instead of “prejudiced”, seeing the greater interest over the “narrow interest” or “parochial interests”, etc. Liberality in religion is more ecumenical, not merely tolerant. Appeals to Christian charity encourage going “beyond the ‘vulgar Attachments of Family and Friends’ to embrace ‘the whole human Species.’” (p1230).

It is not too surprising that appeals to liberal sentiment abound during the ratification of the constitution. The “more perfect union” requires a less parochial, less narrow focus. The narrow interests on the state level led to tariff and trade wars. I’d argue that this is proof of the failure of liberal sentiment and the need for the protection of objective law. Also, where was this sentiment in the period leading up to the revolution? Wasn’t it Britain that saw Americans as parochial ingrates unwilling to shoulder their share of the Empire’s burden after England protected the Colonies by fighting the French and Indian War?

Liberality seems more in the eye of the beholder. Hamilton played to such sentiments when he saw the greater good of the union overcoming narrow parochial interests. However once in power he rediscovered parochial self-interest when he opposed calls for America to repay the French by joining them in their revolutionary struggle. Liberality, it seems, can go to far.

Hamburger notes that during “the 1787 Constitutional Convention ... Roger Sherman opposed a motion to prohibit religious tests. Hesitating to object on the merits, this Connecticut politician ... argued that the prohibition was ‘unnecessary, the prevailing liberality being a sufficient security against such tests.’ ... In voting for the motion prohibiting religious tests, most framers probably understood that religious dissenters might not always be amble to count upon the liberality of others ...”

One might also see Madison’s initial rejection of the Bill of Rights as an appeal to the liberality of the people. Such a “Parchment Barrier” would be worthless if the people failed to embody the virtues and values therein. In the end Americans favor law over sentiment. Indeed, we have a written constitution unlike Britain. The fashionable schools of moral sentiment had a clear effect in the colonies but I still see the dedication to explicit law, rights, and principles as dominant. Besides, leaders of the Scottish school of moral sentiment, like David Hume, were Tories who opposed our Independence. Sentiment is fine but there's nothing like solid law.

Aristotle, like Cicero, discussed the virtue of liberality. For Aristotle one can fall short of the mark or exceed the mark. Hamburger’s following passage brings this to mind (P1261):

“the moral dangers of an undefined liberality could be a metaphor for the associated political risks. When, in the Constitutional Convention, Gouverneur Morris proposed that fourteen years of citizenship should be one of the qualifications for senators, james Madison objected because ‘it will give a tincture of illiberality to the Constitution’ ... Morris expostulated: ‘Liberal & illiberal--The terms are indefinite ... The Indians are the most liberal, because when a Stranger comes among them they offer him their wife and Daughters for his carnal amusement.” Morris defended his fourteen-year qualification ... “We should cherish the love of our country--This is a wholesome prejudice and is in favor of our Country--Foreigners will not learn our laws & Constitution under 14 years.”


Angie Van De Merwe said...

WOW thanks, Jason! What a breathe of fresh air!

Liberality is appeal to the universal sentiments/categories in the mind of humans.

Humans have the capacity to identify with others. So, liberals do appeal to sentiment of "the human", to manipulate the people, instead of engaging the people in rational discussion about where to draw the lines...which we must! We cannot embrace humanity, only in "ideals". This is where ideology drives public policy at America's demise!

And laws are to protect our citizen's liberties, not humanities needs!

Angie Van De Merwe said...
This comment has been removed by the author.
Angie Van De Merwe said...

Correction: "We cannot embrace humanity, only in "ideals"."
"We can embrace "humanity", only in "ideals".

jimmiraybob said...

I started to read the Hamburger essay but realized that it would take an effort that I can't manage now. Having gotten a half dozen or so pages into it though, the one thing that struck me was the potential arbitrariness of defining terms such as liberality and then: 1) using it as a measure of complex actions and 2) setting up a dichotomy between a 'spirit of liberality' and the 'spirit of republican civil virtue' or, as you've done, the law. I'm not critiquing the essay, not having read it, and wonder if these concerns are addressed.

Unquestionable tyrannies are governed by solid law. Nazi Germany was governed by law as is today's Saudi Arabia. (I plead not necessarily a violation of Godwin's Law.)

While I shudder at the thought of being subject to a court of public sentiment - absent law - I shudder equally at the thought of being subject to a court or society slavishly devoted to law without a sense of liberality.

Angie Van De Merwe said...

jimmyraybob said, 'While I shudder at the thought of being subject to a court of public sentiment - absent law - I shudder equally at the thought of being subject to a court or society slavishly devoted to law without a sense of liberality."

anarchism versus legalism
Liberty versus Order


How does one "do that" in a balanced way? Will we be liberally ordered, or legally ordered? Will we be ordered by liberty of conscience, or by legal constraints?

Tom Van Dyke said...

Was Roger Sherman right? I'm not aware of religious tests being enforced at the state level, although that was the law in many states. I recall there was some grumbling about a well-known atheist becoming governor [North Carolina] back in the day, but nobody cared enough to make a legal challenge.

Good thoughts, Jason. I too liked Gouverneur Morris' "conservative" defense of the "prejudice" of patriotism.

Jason Pappas said...

You raise some good questions, jimmiraybob. I still have questions on exactly how Hamburger thought “liberality” folded in with the other dimensions at play. He believes the pendulum swung too far into “classical republican” territory with Bailyn and Wood’s original work. But I'd have to read this long article again to do him justice.

I recently finished reading Michael Zuchert’s book “National Rights and the New Republicanism” (which Hamburger references) where he argues that “republican” theorists downplayed Locke when indeed Locke is key in the Republicanism of our Founders. I highly recommend his book.

Gordon Wood’s recent slim book (240 pages) “The American Revolution” is excellent. Starting on page 105 (you can read it on amazon and search for the word “liberal”) he discusses the Founders’ liberalism. I’m not a scholar but from my limited reading there seems to be a return to a more balanced approach from among these different ways of thinking. It strikes me that there is a difference in emphasis more than an unbridgeable dichotomy in the Founder’s thought.

Jason Pappas said...

Thanks Angie and Tom. Tom, I wrote the blog entry before I read your comments in your post (to Angie). You touch on some similar thoughts.

Also, perhaps Sherman was right after the fact but it is interesting what the Founders worried about.

I forget to acknowledge jimmyraybob’s excellent point. No law and bad law are both frightful. Of course, many in the natural law/rights tradition would say that “bad law” is no law. Still, you point is an excellent one.

To be fair, I also sympathize with those who emphasize that we need a firm cultural “disposition” and common “sentiment”, which abstract rules can never replace. Look at how the words of the constitution can be twisted, as the ideas and dispositions in our nation have changed over the last 200 years.

Always On Watch said...

It seems to me that our Founders placed great emphasis on balance -- or tried to, at least, within the parameters of most at the Constitutional Convention, many of whom we quite adamant that their interests (states and individuals) were protected by the proposed document.

Overall, unbridled sentimentality leads to a lack of balance, whereas objective law protects the balance necessary for individual rights -- and personal freedom itself.

I may be thinking on a very simplistic level, but the above is how I view the issue without citing different kinds of "laws."

You are spot on with your observation as to how our Constitution (principles and intent) has been twisted (aka "interpreted")! The general welfare clause is causing no end of grief as it is used to move our nation closer and closer to being the full Nanny State.