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.)