Tuesday, August 16, 2011

Did Hamilton Misuse Blackstone?

Following up on Mark's post about Hamilton's The Farmer Refuted. America's Founders were Whig revisionists who specialized in using their God given reason to take from various sources that which fit what they wanted to accomplish and discard or explain away the rest.

Blackstone did invoke the natural law. England operated in an Anglican context and that church incorporated the natural law in its teachings. They inherited the natural law from their Roman Catholic roots. Richard Hooker was the preeminent Anglican natural law scholar whose work would have been most authoritative for traditional Anglicans (even John Locke nodded his cap to wise Hooker).

However, Blackstone was an Tory who argued for the doctrine of absolute supremacy of the law of England. Of Parliament's power, he famously noted:

It can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. True it is, that what they do, no authority upon earth can undo.

As Gary North acutely observed: "Blackstone was wrong: beginning eleven years later, the American colonies undid a lot of what Parliament had done."

This thorny dilemma persists today. Scholars disagree on 1. whether natural law exists and should inform the content of positive law; 2. whether the principles of the Declaration of Independence accurately represent traditional natural law, or whether they are something more enlightened and modern; and 3. whether the natural law of the Declaration of Independence is "justiciable."

Time forbids me from discussing all three in this post. But let us focus on 3. Justice Scalia, because he rejects the Declaration of Independence as justiciable in American law has been hammered by Harry Jaffa and his followers for being a "legal positivist." Scalia is a devout Roman Catholic and I've seen him on record, unsurprisingly, claiming to believe in the natural law (which devout Roman Catholics do). Scalia need not answer whether he believes the Declaration of Independence's natural law accords with that recognized by the Church; American courts, according to Scalia, have no business using any conception of the natural law to decide cases and controversies or nullify actions of other branches of government. If natural law is to inform policy issues, that's the legislature's job. (And among conservative Catholic jurists, Scalia is by no means alone in his approach.)

And that's because some legal body must have the final say over how to interpret and implement natural law. Under a Blackstonian framework, it was Parliament. So it could be that 1. Hamilton was just wrong; what Great Britain did, did not violate the natural law and America had no business on natural legal grounds to disobey. OR, 2. even if Hamilton et al. were right, they still had no business disobeying British rule because some legal body has to have the final say over how to implement the natural law into governing law and under Blackstone's conception, again, it was Parliament.

Perhaps this is why Hamilton cites other natural law thinkers who may not have viewed things exactly as Blackstone did. This is not to say I have a problem with America's Founders clever, revisionist use of Blackstone this way. But let's see it for what it is: They took his principles, tweaked them a bit, and applied them to achieve results that Blackstone would neither have expected or approved of. This is Whig history 101.


Jason Pappas said...

I've seen conflicting descriptions of Blackstone and can't tell who got Blackstone right. Could the "absolutism" in Blackstone merely be his concept of sovereignty? Does he not see the "correct" course as the alignment of positive law with natural law? I'm not about to read Blackstone because of his voluminous writings so I'm left wondering.

A second question. Is the "natural law" of our Whig founders the same "natural law" of the scholastics. I quoted several founders on the "first law of nature" as the law of self-preservation. Locke seems only to rely on this law for his politics of natural rights. Are the Founders in this camp?

Jonathan Rowe said...

1. "Does he not see the "correct" course as the alignment of positive law with natural law?"

Yes and this is where the Founders agreed with him. However, the question is still out whether Great Britain indeed violated the natural law in the way they dealt with America (I think Blackstone would say they did not). And two whether America had any right to resist Parliament if America were being dealt with unjustly. This is where Blackstone's concept of absolute sovereignty comes in. It helps to read the Blackstone link above. As far as I can tell, he's cautioning Parliament: You'd better be good guarantors of liberty, because YOU are where the buck stops.

Jonathan Rowe said...

A second question. Is the "natural law" of our Whig founders the same "natural law" of the scholastics. I quoted several founders on the "first law of nature" as the law of self-preservation. Locke seems only to rely on this law for his politics of natural rights. Are the Founders in this camp?

This is not an easy question to answer.

Tom Van Dyke said...

I'll look it up for ya's if you want, but James Wilson addresses this specifically, that the British system [and Blackstone] are still based on social contract, and gov't has full power except what the people negotiate with it as "rights."

[See also the Magna Carta," where the king writes "we grant" x and y as rights.]

Hamilton is writing before the Constitution, before the D of I. Still, one of his arguments in Farmer Refuted is that the colonies' charters are with the king, and the colonies do not recognize the authority of Parliament.

Jon is white right about Scalia rejecting natural law in America in favor of its body of positive law and Constitution. He traces it back to the Erie decision in 1930-something.

An interesting take here:


that "living constitutionalism" is more in harmony with using natural law than Scalia's originalism or textualism.

Jonathan Rowe said...

It might make for a good post: Wilson's correction of Blackstone for America.

Jason Pappas said...

Re-reading Blackstone in that link I see the following: 1. He praises the “mixed constitution” of Britain for its checks and balances. Together the three branches constitute Parliament (the King’s veto makes him part of the process). 2. As a whole Parliament has the power to make good or bad laws. This is descriptively true and I suspect he’d advocate this on a normative basis. As you note the buck must stop somewhere. 3. Parliament can fail and liberty can be lost. If liberty is lost in England it will come by the failure of Parliament.

Compare this with Locke and the Declarations' restatement of Locke. 1. Individuals posses natural rights. 2. To secure these rights, they create government. 3. If government fails they are entitled to abolish it.

It appears on the surface that Blackstone rejects Locke #3. Perhaps. However, Locke #3 can not be part of government. There is no self-destruct feature built into the legal system that says if a rights-violating law is past, government ends. The people have to take an action against positive law to reestablish natural law by revolution. If Blackstone is putting forth a theory of government, revolution is external to it.

Political philosophy (Locke) allows what legal philosophy (Blackstone) must disallow. Revolution must be against the law (i.e. positive law); but it is not necessarily against natural law (philosophically sound principles). Of course, that's how I see it. Now how did the Founders square their Blackstone with their Locke?

Tom Van Dyke said...
This comment has been removed by the author.
Tom Van Dyke said...

The people have to take an action against positive law to reestablish natural law by revolution. If Blackstone is putting forth a theory of government, revolution is external to it.

Exactly, Jason. But this is where Calvinist "resistance theory" comes in, among other reasonings.

As much as Suarez and Grotius tried to separate natural law from religion, deity, from "natural rights" endowed by a creator, Locke, Hamilton, and Jefferson found it impossible not to inject them back in.

Again James Otis, of the pre-Founding [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 "Christian America" thing isn't really at the core of the American Founding, but this is. Crediting the Founding ideals to the Enlightenment---and hence, "secularism"---just doesn't get it done.

Do we credit this concept to Christianity? Not exactly, either, but it can be argued that you can find these God-given rights and this God-given liberty within the purveyors of "Christian thought," be it canon law, Aquinas and Bellarmine in the Roman Church and Jean Calvin's successors who crafted "Calvinist resistance theory."

Then to all the purveyors of "natural law" thought to whom Hamilton appeals.

Natural law is simply not a "secular" concept as we understand the term "secular" today. You can find it in classical philosophy--- Plato, Aristotle, the Roman Stoics---but not in modern philosophy.

Kant and esp Hegel are our modern philosophical touchstones, the ethos of the Founding blurred if not obliterated by them:


When somebody writes here how difficult if not impossible it is to get into the Founders' heads, I think, yeah, for you. For you, you poor modern bastard. The writings of the Founders might as well be in Etruscan. Found in Antarctica. The past is a foreign country, they say...

Jason Pappas said...

The Otis quote is interesting even if one needs to know more to understand what he means. That gov’t “springs from the necessities of our nature” doesn’t suggest that there is a natural form of government. As Paine says, it is our wickedness that makes it necessary. Is there a “natural” form of government? Does Blackstone believe that a “mixed constitution” is natural and follows “natural law”?

In Locke’s analysis, securing rights through government is a prudent measure. Rights are absolute and exist prior to government. Besides “life, liberty, and estate” one has a right to take measures to defend these rights including creating the artifice of government and abolishing one that fails. These are the means to a end which is warranted by nature.

Again, it would seem that prudence dictates these means. Where is the “natural right” to a certain type of government? Or certain civic institutions? Or government structure? The Founders don’t seem clear to me on that matter.

Tom Van Dyke said...

...endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

Jason Pappas said...

That’s my point. “to secure these rights” means that government is instrumental to another end. It is an artifice created by man and man’s consent. Rights exist prior to consent and are unalienable. Rights are by nature; government is by human convention.