Antidisestablishmentarianism

[The English people] do not consider their church establishment as convenient, but as essential to their state, not as a thing heterogeneous and separable, something added for accommodation, what they may either keep or lay aside according to their temporary ideas of convenience. They consider it as the foundation of their whole constitution, with which, and with every part of which, it holds an indissoluble union. Church and state are ideas inseparable in their minds, and scarcely is the one ever mentioned without mentioning the other.

– Edmund Burke, Reflections on the Revolution in France

3PictureFrenchRevolutionJust thinking out loud here. I won’t use any sources other than what I’ve been reading or what I remember having read. With that confession of ignorance, I give myself permission to write, even though I’m giving my subject short shrift.

What has been the effect of the First Amendment’s Establishment Clause (i.e., “Congress shall make no law respecting an establishment of religion . . .”)? Is there any downside to not having a state-sponsored religion? Suppose we had tolerance – say, perfect tolerance – for dissenters based on a well-administered Free Exercise Clause (i.e., “. . . or prohibiting the free exercise thereof”). What would the further addition of a state-sponsored religion get us?

I’m currently reading nothing on the Establishment Clause or on the English Civil War, that poignant fulcrum for English and American church-state issues. Instead, I’m reading Burke’s Reflections on the Revolution in France and Joyce Appleby’s book Liberalism and Republicanism in the Historical Imagination. One of Burke’s arguments against the French Revolution, however, is also an argument against some of his English contemporaries who wanted to disestablish the Anglican Church.

Edmund Burke’s vision of society and the state was typical of Whigs in his day, J. G. A. Pocock states in his thoughtful introduction to Reflections. Burke thought that society and the state needed an established church. Society needed an established church because society needed order and manners. Pocock summarizes Burke’s view on the social order:

The social order in his mind was natural; it was an alliance between heaven and earth; and property . . . was the means by which the human actor assumed a place in this natural, but also dynamic and historical, order (Kindle location 602).

The confiscation of church property in France for collateral for the nation’s debt shook Burke. If the church didn’t own property, the church wasn’t a player.

Within this alliance of heaven and earth, the clergy nourished manners, and manners, Burke and his fellow Whigs believed, were the modern equivalent of the virtue of Greek and Roman antiquity and the outcome of medieval chivalry. Manners, Whigs also believed, were necessary for an economy that relied more and more on commerce.

The state, on the other hand, needed an established church in order to maintain its sacred character. Eighteenth century English Whigs felt the established church legitimized the state in the sight of a religious polity:

The separation of church and state would mean that the sacred character of the latter had no ecclesiastical or institutional expression, and could be affirmed only by such undenominational religion as men were able to agree on, irrespective of church membership or doctrinal belief; in the words sometimes ascribed to President Eisenhower, society would be based on a fundamental religious faith, but it wouldn’t matter what it was (Kindle location 414).

Eisenhower’s exact words (though the quote is arguably apocryphal, and I’m not allowing myself to Google it) are, according to Pocock, “Our society makes no sense unless it’s founded on a fundamental religious faith, and I don’t care what it is.” I don’t think Eisenhower was an antidisestablishmentarianist, though I confess I know little about him. But I do think he was onto something.

Because we have no established church, we’ve had to scramble. James Madison’s elaborate checks and balances, three branches, and bicameral Congress were designed in part to win America’s respect for the new Constitution, according to Charles R. Kessler in his excellent introduction to The Federalist Papers:

The Federalist’s concern for veneration of the Constitution shows that a purely calculative or self-interested attachment to government is not sufficient to secure republicanism. The Constitution must attract the loyalty, admiration, pride, and even reverence of American citizens if the rule of law is to be firmly grounded – if republicanism is to be responsible (xxx).

Reverence for government is tough, Burke would say, when the first amendment to your constitution doesn’t permit its government to establish a religion.

The need for a religious cast for American government persisted. Lincoln’s famous 1848 Lyceum speech advocated a “political religion,” a notion that grew from mere adherence to laws in 1848 to include sacrifice and redemption in Lincoln’s 1863 Gettysburg Address and in his 1865 Second Inaugural Address.

It’s ironic that Lincoln’s narrative of American history includes redemption. In Burke’s time, advocates in England who wanted a church-state separation based their thinking on Locke’s “theory of natural rights which made no appeal to a theology of redemption” (Pocock, Kindle location 427). Yet Lincoln was a Lockean liberal.

Lockean natural rights theory is itself a civil religion and one well suited to America, which has largely rejected Pilgrim and Puritan notions of the community’s primacy in favor of the individual. Locke’s state of nature starts not with society but with an individual, a child of God, much like Adam in the Garden of Eden. Appleby captures the religious appeal of natural law for the generation between Madison and Lincoln:

During these same years evangelical Protestants successfully propagated an individualistic Christian message that challenged much of Calvinist orthodoxy. They compared liberation from sin to liberation from tyranny as a kind of individual empowerment, thus providing a Christian foundation for the civil religion forming around natural rights (4).

But evangelical Christians in our own day have lost sight of natural law. In a related development, their relation to the federal government has become fundamentally antagonistic. America to many evangelicals is like the Roman Empire before Constantine – before it made Christianity its official religion. But we’re also a democracy in which over ninety percent of the population believes in a monotheistic God. Consequently, our politicians rarely throw Christians to the lions.

Instead, many evangelicals speak of a war on Christmas, pointing to courts that order local governments to take crèches down from courthouse lawns. We have claims of anti-religious acts when the I.R.S. denies a religious organization tax-exempt status. Every now and then – most recently a federal district judge’s decision in Wisconsin – someone threatens the I.R.S. housing allowance under which a minister is allowed not to report as taxable income any money he or she uses to pay a mortgage on and to otherwise maintain a residence. As I recall, these challenges end up with Congress reaffirming this sweet tax break in almost unanimous votes.

It must be noted that questioning a tax break for clergy is a good deal less tyrannical than confiscating all church property, as happened soon after the outset of the French Revolution. Certainly, some evangelicals see Free Exercise Clause issues where some courts see Establishment Clause issues. But why are these evangelicals so vociferous in their denunciation of the federal government, so adamant that the government is out to destroy their faith, even though the same government gives clergy and nonprofits special tax breaks? I think Madison, Kessler, Lincoln, and Eisenhower point to the answer.

Many evangelicals would have more respect for the federal government if it were to revoke the Establishment Clause and adopt a religion, like England. I think this desire to revere government, as Kessler might put it, underlies, for instance, many evangelicals’ claim that we are a “Christian nation.” An acceptance of the Christian nation theory would take at least some teeth out of the Establishment Clause. After all, why would evangelicals make this historical argument if its acceptance wouldn’t be a kind of guide to political action?

America’s Christians would be better off taking a hard look at Locke, who in the past has served as a means of unifying Christians and the rest of Americans in a common understanding of government. Non-Christians and unorthodox Christians – Unitarians and Deists – in Burke’s England and in Revolutionary America who wanted to separate church and state were Locke’s followers, but so were Lincoln and many participants in the Second Great Awakening.

Locke’s theological understanding of political science goes deeper than the patently flawed Christian nation claim. Fortified by Locke’s understanding of our mutual status as God’s children – the understanding that underlies Locke’s notion of our fundamental equality – evangelicals could again find what Pocock calls “the sacred character of the state” without bothering with the antidisestablishmentarianism. The Deists were wrong: Locke’s concept of equality before God is redemptive. It was after his resurrection, after all, that St. John’s Jesus first announces our equal status as God’s children: “Go to my brothers, and tell them that I am ascending to my Father and your Father, to my God and your God.”

What & how I read this year

The biggest change to my reading habits this year is Whispersync. The name sounds like some kind of vacuum cleaner or AC window unit from the 1950’s — “Frigidaire dishwashers, now with Whispersync.” Or “with Whispersync” written in a chrome and stylized cursive beneath “Ford Falcon” on the trunk. But it’s really Amazon’s new service syncing books on multiple devices, including audiobooks from Audible. I’ve gotten a lot of free Kindle books and gotten the excellent Audible recordings paired with them for 99 cents each. I can listen to C.K. Chesterton’s What’s Wrong with the World on my walk to school, and I can pick up where I left off listening when I read it during our silent reading time in class.

I find that, by combining my reading and listening times, I get immersed in a book. The reading-listening combination also gets me through some daunting books I’ve always wanted to read, such as All the King’s Men, which I’ve read twice now. I’m a consummate notetaker, and Whispersync satisfies there, too, pretty much. The notes I speak into my iPhone while listening to the book show up transcribed on my computer when I return to reading to the book. Nothing beats scribbling in a book, but for finding your notes short of building your own index in a book (which I’ve done many times), nothing beats digital books.

I used Whispersync for weeks for just 99 cents a classic. I didn’t buy a Kindle since I was satisfied reading the books on my computer. The complete 99-cent collection is here, along with a link to whatever free Kindle-Audible book combination Amazon is offering during a given month. (The wording on the linked page suggests that you can get only one Kindle-Audible book combination for 99 cents, but in fact you can get as many of the 104 combinations offered on that page as you’d like. I’ve gotten fifteen so far.

Once you’re hooked, you’ll find some other, newer books in the Kindle format for pretty good prices compared to print, and the Audio version will be for like $3.99 more. I remember the days online when you’d spend over $50 — sometimes over $100 — for good audiobooks.

I like the Whispersync combination so much that a month ago I bought my first e-reader, a Kindle Paperwhite. Because the screen is side-lit, I read it at night without having to worry that my lamp will keep Victoria up.

I have only a few complaints. First, you have to re-sync the last read page to keep the Whispersync coordinated if you access the footnotes on the Kindle app (but not the Kindle itself). Second, all the free books I get on archive.org in Kindle’s format won’t sync from my computer’s and phone’s Kindle apps to my Kindle.  And third, electronic versions, Kindle or otherwise, don’t exist for most of the books I read, as the list below might suggest. A lot of the books I read are out of print, anyway — an occurrence that should be progressively rarer in a century with growing percentages of print-on-demand publishing and digital books.

But, still, Whispersync’s a steal so far.

This spring I’m teaching Macbeth, a play I haven’t read in several years. I’m planning on reading and watching the WordPlay version, where “half the page is a stage,” as the WordPlay people say — a dramatization of the portion of the script opposite it. This innovation is in the spirit of Whispersync, I think.

So on to my reading this year. I think I’m posting a list of what books I’ve read this year for three reasons: (1) I like to think my books show part of where my head’s been this year. (2) It’ll be fun to learn if anyone else has recently picked up any of the books I’ve been reading. (3) I like looking back at 2012’s post by the same name and comparing my years in books.

My reading in 2012 was about as eclectic: a lot of good fiction, some political science and Chinese philosophy, a single bio, and a smattering of other books. I read a lot of books I hadn’t read since college. I love reading books I read in college. It’s like reincarnation.

This year’s books are weighted more to political science. I gave myself a crash course in natural law in preparing my video series and its annotated transcript this summer. I also had to read portions of a lot of old-friend books that aren’t listed below, so if you’re a teacher, give me credit for that, too. (I must be thoroughly institutionalized.)

My proudest moments as a reader? In 2012, Audible finally got me through Bleak House. This year, Whispersync finally got me through Don Quixote. It felt like it was over before it had done much more than start. “Reading” these luggers by listening to unabridged recordings of them is the only way to go. If you haven’t tried Peter Barker’s performance of Tristram Shandy, for instance, you’re in for a treat. At times, I had to stop lifting weights so I wouldn’t kill myself laughing.

The most beautiful thing I heard this year — more beautiful than music — is Bill Wallis’s performance of Sir Gawain and the Green Knight, the Simon Armitage translation. Wallis and his wonderful cadences and accent are from Northern England, where the poem is supposed to have originated. Sir Gawain, you may know, is part of an alliterative revival that occurred in the late Middle Ages. The translation’s first-rate listening and a triumph of poetry over literality. Armitage’s introduction is also excellent. The second half of the recording is the poem in its original Middle English. You might listen to some of that to immerse yourself in our linguistic forebears’ cadences or just for the thrill of recognizing some Modern English words and phrases.

I’m using the same seven classifications below that I used last year to pigeonhole my reading. I’m counting lecture series from The Great Courses this year for the first time. (If you can put up with audio only and don’t mind not having even a written outline, you can now download almost any Great Courses lecture series for one credit ($15) if you’re an Audible member.)

1. I read it – the whole thing – either in print, through an audio performance, or both:

Jane Austen, Persuasion (second read)

Tinguely Museum Basel, Robert Lax

Cleanth Brooks, William Faulkner: The Yoknapatawpha Country

The Book of Job (umpteenth read)

Edmund Burke, Reflections on the Revolution in France (second read)

Anne Carson, Autobiography of Red

Miguel de Cervantes, Don Quixote

G. K. Chesterton, What’s Wrong with the World

Teju Cole, Open City (second read)

Sonail Deraniyagala, Wave

Charles Dickens, A Tale of Two Cities (second read)

E. L. Doctorow, Ragtime

William Faulkner, The Mansion

William Faulkner, The Reivers (second read)

William Faulkner, The Town (second read)

David Hackett Fischer, Champlain’s Dream

Everett Fox, Give Us a King! (translation of I and II Samuel)

Adam Goodheart, 1861: The Civil War Awakening

Ruth Grant, John Locke’s Liberalism (second read)

Gerald Graff and Cathy Birkenstein, They Say, I Say: The Moves that Matter in Academic Writing

Alan C. Guelzo, The American Mind (The Great Courses)

Arthur Herman, The Cave and The Light: Plato Versus Aristotle, and the Struggle for the Soul of Western Civilization

Davie Johnson, John Randolph of Roanoke

Rachel Kushner, The Flamethrowers

C. S. Lewis, Out of the Silent Planet

Walter Lippmann, The Public Philosophy

John Locke, The Reasonable of Christianity, as Delivered in the Scriptures

John Locke, Some Thoughts Concerning Education

Thomas Paine, Common Sense

Paul’s Epistles (the umpteenth read)

The Pearl Poet, Sir Gawain and the Green Knight

Plato, Meno

Richard Rohr, Falling Upward

David Roochnik, An Introduction to Greek Philosophy (The Great Courses)

William Shakespeare, Romeo and Juliet (umpteenth read)

E. M. Standing, Maria Montessori: Her Life and Work

John Steinbeck, The Grapes of Wrath

George Steiner, The Death of Tragedy

Peter Stephens, The Nature of Government: Lockean Liberalism for Our Next Civil Crisis (at least a dozen times, and I still found typos)

Morton White, The Philosophy of the American Revolution

Thomas Williams, Reason and Faith: Philosophy in the Middle Ages (The Great Courses)

Colin Woodard, Eleven Nations: A History of the Eleven Rival Regional Cultures of North America

2. Reading currently, with an aim to finishing:

G. K. Chesterton, The Man Who Knew Too Much

David Hackett Fischer, Liberty and Freedom: A Visual History of America’s Founding Ideas

Charles de Montesquieu, The Spirit of the Laws

Kurt Vonnegut, The Sirens of Titan

3. Read a good chunk of it before giving it a rest, though I liked what I read:

Aristotle, Nicomachean Ethics

William Blackstone, Commentaries on the Laws of England

Alan Bloom, The Closing of the American Mind: How Higher Education has Failed Democracy and Impoverished the Souls of Today’s Students

Allan Bloom, Shakespeare’s Politics

Joseph Campbell, The Hero with a Thousand Faces

E. L. Doctorow, Creationists: Selected Essays 1993 – 2006

Robert Lax, Circus Days and Nights

Ronald Steel, Walter Lippmann and the American Century

4. Skimmed, bought, and hope to read next year:

Joyce Appleby, Liberalism and Republicanism in the Historical Imagination

Walter Bagehot, The English Constitution

Robert Lowry Clinton, God and Man in the Law: The Foundation of American Constitutionalism

Eric Foner, The Story of American Freedom

Rienhold Niebuhr, Selected Essays and Addresses

Rienhold Niebuhr, The Irony of American History

David Roochnick, Retrieving the Ancients: An Introduction to Greek Philosophy

Gary Wills, Inventing America: Jefferson’s Declaration of Independence

I’m not counting three other categories. They include (5) books I returned to for inspiration, reference, pleasure, or for a page or two’s read before conking out and (6) books I started but gave up on. I couldn’t keep track of books from either of these two categories anyway. (The former category is my favorite reading; the latter is my least favorite.) Of course, there are (7) non-books – mostly the Internet, print periodicals, and student essays – which probably made up a plurality of my reading.

3PictureReadingMoRiza

On the Platform, Reading” by Mo Riza. Used by Permission.

The duty to preserve life and liberty & to pursue happiness

3PictureMortonWhiteJefferson doesn’t encourage us to retrace his thinking in writing the Declaration of Independence. He writes copiously during his long retirement, but when someone asks him about the origins of “life, liberty, and the pursuit of happiness” and the rest of the Declaration’s more epistemological lines, he claims only to have “harmonized” views contained in “elementary books of public right.” His list of authors amounts to only “Aristotle, Cicero, Locke, Sidney, etc.” I was glad see that “etc.” made flesh this week while reading American philosopher and Princeton professor Morton White’s book The Philosophy of the American Revolution (1976). White ties Jefferson’s thought not only to Aristotle and Locke but also to the works of the German philosopher Samuel von Pufendorf (1632 – 1694), the Irish philosopher Francis Hutcheson (1694 – 1746), and the Swiss jurist Jean Jacques Burlamaqui (1694 – 1748), none of whom I knew anything about.

I found White’s book while reading another writer’s list of influences on the United States’ founding generation of political thinkers. David Hackett Fischer in his book Liberty and Freedom includes White’s book in a footnote substantiating his list of all the theories that have come before his own to explain American liberty and freedom:

. . . Greek democracy, Roman republicanism, natural rights in the Middle Ages, the civic humanism of the Renaissance, the theology of the Reformation, the English “commonwealth tradition” in the seventeenth century, British “opposition ideology” in the eighteenth century, the treatises of John Locke, the science of Isaac Newton, the writings of Scottish moral philosophers, the values of the Enlightenment, and the axioms of classical liberalism.1

White’s book, according to Fischer’s footnote, is supposed to assert the founders’ natural rights tradition theory mentioned above. It establishes that Jefferson, et al. were still on the rationalist side of the rationalist/utilitarian divide, but it challenges the internal consistency of the founders’ rationalism at several turns. It therefore doesn’t celebrate the influence of natural rights dating back to the Middle Ages on the founding generation’s thinking, but it proves that influence. It shows how the different founders, and the different philosophers before them, strive to maintain their claim to universally accessible natural rights and self-evident truths in the face of disagreements over the role of reason and conscience and in the face of challenges to universal truths.

White’s book certainly discusses, as its title suggests, the philosophy of the American Revolution – that is, the bounds of philosophical discussion between Locke’s rationalistic notion of natural law and what would later develop into Jeremy Bentham’s results-oriented utilitarianism.  But the discussion of these philosophical struggles has a single focus – a close analysis of the Declaration’s famous second sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”2 This is chiefly where Pufendorf, Hutcheson, and Burlamaqui come in. White weaves these three early modern philosophers with Aristotle, Hooker, and Locke in part because, at least in Hutcheson’s and Burlamaqui’s cases, theirs were the latest words on natural rights3 and because, particularly in Burlamaqui’s case, Jefferson’s thinking in the preamble’s first draft so precisely matches theirs.

And it is the Declaration’s first draft with which White feels much more at home. The first draft’s equality clause reads as follows:

We hold these truths to be sacred & undeniable; that all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness . . .

(White helpfully employs parallel structure to untangle “Jefferson’s characteristically unsettling punctuation” in the rough draft to a more comprehensible “the preservation of life, the preservation of liberty, and the pursuit of happiness.”)4 White’s book focuses on the different views of government reflected in the Declaration’s first and final drafts, and he finds that the revision is mostly a move from clarity to imprecision. To him, the first draft’s purpose is

to aid and abet men in attaining ends proposed by God: the preservation of life, the preservation of liberty, and the pursuit of happiness. But in the final version of the Declaration the purpose of government must be understood as merely that of making secure rights which have been given by God, which means making them secure against invasion.5

Jefferson, cagey and opaque as he often is, attributes the changes to Benjamin Franklin and John Adams and says that the changes were “merely verbal.” White doesn’t offer an historical account of why the changes were made, and he disagrees with Jefferson about the changes’ significance. White doesn’t say so, but I think Jefferson’s outward acquiescence to the changes stems from his desire to hang onto his claim to the Declaration’s authorship, the first among only three feats from his accomplished life that he has carved onto his tombstone at Monticello. (Even his consequential two-term presidency doesn’t make the cut.) But White sets Jefferson’s motives aside, whatever they are.

Although he eschews such historical speculation, White explodes Jefferson’s “merely verbal” explanation just as he annotates the “etc.” at the end of Jefferson’s list of philosophical influences. He establishes not only the first draft’s more active role for government in promoting virtue but also its more duty-oriented approach to rights and its use in explaining why Jefferson’s troika of inalienable rights ends with “the pursuit of happiness” instead of property, unlike most such formulations of rights in the states’ revolutionary documents.

I was surprised, with respect to the first draft’s vision of government, that White doesn’t mention a connection with Aristotle. The government’s role in aiding and abetting “men in attaining ends proposed by God” parallels Aristotle’s teleology and his concept of the state’s active role in promoting its citizens’ pursuit of happiness.

White also fails to point out both the more individualistic notion of rights we are left with in the final version and the more serious claim that the Continental Congress makes against King George III and Parliament as a result of the changes included in the final draft. In the final draft, George goes beyond merely failing to aid us in our pursuit of happiness; he also hinders us in it. Perhaps it is Jefferson’s often-conflicted feelings about the size and role of the federal government as well as this stronger accusation against English authority that causes Jefferson to accede to Franklin and Adams’s muddying of the philosophical waters in the final draft. But I catch myself here indulging again in my lifelong fascination with Jefferson’s variable mind.

So what were the clear waters White finds in the Declaration’s first draft? For starters, a more accurate application of the notion of self-evident truth. White breaks down Locke’s and other rationalists’ epistemology into two moves – an initial intuition and a logical deduction from that intuition. (White refers to Locke interchangeably as a rationalist and an intuitionist.) Strictly speaking, only what can be intuited as a truth is axiomatic and, therefore, self-evident. Deductions from that self-evident truth are just as sure, but a deduction by definition is not self-evident.

As we shall see, of the rights proclaimed in Jefferson’s famous sentence, White shows that only the equality clause is self-evident. White believes that Jefferson is on firmer ground when, in his rough draft, he calls “sacred & undeniable” the list of rights that includes “the preservation of life, & liberty & the pursuit of happiness.” Those rights are not self-evident but are derivative of self-evident truth, such as “all men are created equal & independent.” They are just as sure as self-evident truth – just as sacred and undeniable – but they are derivative of the truth that all men are created equal.

White never makes his best argument in this regard: perhaps it’s too obvious for him to point out. The rough draft’s language after “sacred & undeniable” makes explicit the derivative nature of the rights concerning life, liberty, and the pursuit of happiness: “that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness . . . ” [emphasis added]. Our equality – our common status as God’s children – is the sure ontological foundation for our rights involving life and liberty.6

White also finds in Jefferson’s first draft a clear example of the eighteenth century notion of rights and duties.  Pufendorf and Burlamaqui influence the American revolutionaries to see a right as a moral power:

Burlamaqui defines a right as a power or a faculty which a man has to use his liberty and strength (ses forces naturelles) in a particular manner either in regard to himself or in respect to other men, so far as this exercise of his liberty and strength is approved by reason.7

Burlamaqui, like Pufendorf, sees a right as a power, and he finds that a power disassociated from morality is also disassociated from right. When power is “used in morally objectionable ways by the many it is called ‘license,’” White summarizes. Put another way, a right is “a power to use physical strength in conformity with, or not in violation of, natural law.”8 Many American social conservatives today complain that our culture has gotten too rights-oriented. Using the term “rights” in this modern manner, however, disassociates it from our natural-law heritage. Our rights, as White demonstrates, include duties and no “license.”9

We’re ready to see the connection between “LLPH” (life, liberty, and the pursuit of happiness) and Burlamaqui’s influence on Jefferson. Burlamaqui’s rights stem from self-evident truths or “states,” all of them ontological in nature:

First of all, man is a creature of God, from whom he has received his life, his reason, and all the advantages he enjoys. Secondly, his is a being composed of body and soul who naturally loves himself and desires his own felicity. And, thirdly, he is a member of a species, all of whose members live with him on earth and in society.10

Each of these “states” has “a trio of different sorts of duties: duties toward God, duties toward oneself, and duties toward other human beings.” Burlamaqui infers these duties by reflecting “on the nature and states of man, which indicate the intentions of God with respect to man.”11 Aristotle’s teleology not only explains what Jefferson means by happiness, but it also through Burlamaqui and then Jefferson explains how we obtain our rights regarding life, liberty, and the pursuit of happiness:

Since God gave us life, he must have proposed the preservation of our life. Since he gave us reason, he must have proposed for us the perfection of our reason. And since he created us with a desire for our own happiness, he must have proposed for us the pursuit of that happiness.[Id., emphasis original.]

(“Happiness” in the declaration, of course, is not the vague and transitory notion of happiness we associate with the word today. It is Aristotle’s idea of happiness – the happiness that comes as a result of a full life pursuing the ends for which one is created.) These ends then translate into duties, which in turn translate into rights (that is, into moral power):

Here we see the final link in the chain which begins with man’s God-created essence, moves to the ends God proposed for him, and from that to what God wants man to do, namely, to man’s duties. But once we have shown that we have the duty to preserve our lives, it is easy to deduce that we have the right to preserve them; once we have shown that we have the duty to pursue happiness, it is easy to deduce that we have the right to pursue it; and once we have shown that, having been created members of the same species who are equal by nature and therefore mutually independent, we can know, first, that each of us has a duty not to dominate the other and, secondly, that each of us has a right to preserve this freedom from domination.12

This “chain” from essence to duties and from duties to rights is reinforced in the rough draft by the abstract noun “preservation” that provides for life and liberty what the abstract noun “pursuit” provides for happiness – something for us to do. That is, we have duties. While White doesn’t point out the rough draft’s parallel structure, he shows me something I wouldn’t have known from the text: the “use of ‘sacred’ is characteristically Burlamaquian because of its religious connotation,” and “the reference to ‘inherent’ rights . . . is reminiscent of Burlamaqui’s constant harping on the fact that the laws of nature follow from the essence of man and his states as created by God . . .” The entire sentence in the Declaration’s rough draft, as White puts it, is “a telescoping of Burlamaqui’s argument.”13

What about property? As White points out, property couldn’t exist in the final draft since under no theory of natural law could property be considered unalienable. The notion that “one may alienate what one owns is at least as old as Aristotle.”14 But the bigger point is that the right to property, unlike the right to preserve life and liberty and the right to pursue happiness, is an adventitious right. Many natural law theorists, such as Burlamaqui, believed in a distinction between “primary or primitive natural law, which, Burlamaqui says, ‘immediately arises from the primitive constitution of man, as God himself has established it, independent of any human act,’ and secondary natural law, which ‘supposes some human act or establishment.’” When man modifies his primitive state, he creates adventitious rights, “which are properly the work of man” and not God. Like Locke, Blackstone, and other natural law theorists and jurists, Burlamaqui recognizes an original right to a common use of property that is restrained and limited when individuals claim private property. Although, like Locke, Burlamaqui asserts a limited right to individual property, he ranks it among the adventitious rights.15

It is worth quoting White’s excellent summary of his argument, at least insofar as I’ve covered it here:

. . . I cannot accept the statement [contained in Daniel Boorstin’s 1948 book The Lost World of Thomas Jefferson] that Jefferson’s “natural rights’ theory of government left all men naturally free from duties to their neighbors: no claims could be validated except by the Creator’s plan, and the Creator seemed to have created no duties but only rights.” This, I believe, can be maintained only if one neglects the Lockean and Burlamaquian roots of Jefferson’s thinking which require reference to duties not mentioned in the Declaration but implicit in Jefferson’s telescoped derivation of rights. Jefferson never could have derived his rights from equal creation without statements of God-imposed duties of natural law as intermediate steps.16

I believe that if our country would grasp the import of each phrase of that final sentence, we’d understand most of what we need to know about our nation’s founding.

  1. David Hackett Fischer, Liberty and Freedom: A Visual History of America’s Founding Ideas, at 2 and 739 – 740.
  2. White, supra, at 246 – 247.
  3. “Having published on natural law in 1747, Burlamaqui was . . . much closer to Jefferson in time than Hooker, publishing in 1593, or than Locke, publishing in 1690, and hence more likely to be thought of by Jefferson as uttering ‘the last word’ on the matters that concerned the author of the Declaration with regard to natural law as it affected individuals,” White says. Id. at 161.
  4. Id. at 165 – 166.
  5. Id. at 250. Emphasis original.
  6. Fischer describes the competing heritages of freedom and liberty, the first from Northern European tribes, from whom we get the term “freedom,” and the second from the ancient Romans, from whom we get the term “liberty.” Freedom was gradually understood to be a birthright, but in ancient Rome liberty implied inequality since one’s liberty required others’ slavery. Fischer, supra, at 4 – 6. The struggle between the free states and the slave states before and during the American Civil War can be understood as a struggle between these competing notions of freedom or liberty, with Virginia’s John Randolph and South Carolina’s John Calhoun attacking Jefferson’s equality clause as error, while Lincoln later brandishes the clause in his Gettysburg Address.
  7. White, supra, at 188 – 189.
  8. Id. at 190.
  9. Fischer agrees with this assessment for historical reasons. Examining the Northern European tribes’ notion of freedom from which the Declaration’s equality clause is derived, Fischer says, “A person who was born to freedom in an ancient tribe had a sacred obligation to serve and support the folk, and to keep the customs of a free people, and to respect the rights of others on pain of banishment. In modern America too many people have forgotten this side of our inheritance. They think of liberty as license without responsibility, and freedom as entitlement without obligation. To think this way in the modern world is to remember only half of these ancient traditions.” Fisher, supra, at 8 (emphasis original).
  10. White, supra, at 162.
  11. Id.
  12. Id. at 162 – 163.
  13. Id. at 163 – 164.
  14. Id. at 214.
  15. Id. at 215 – 216.
  16. Id. at 254. Fischer from a linguistic point of view also makes the connection between freedom’s historical foundation in the notion of equality and our duties to one another. “Freedom . . . derives from a large family of ancient languages in northern Europe. The English word free is related to the Norse fri, the German frei, the Dutch vrij, the Flemish vrig, the Celtic rheidd, and the Welsh rhydd. These words share an unexpected root. They descend from the Indo-European priya or friya or riya, which meant dear or beloved. The English words freedom and free have the same root as friend, as do their German cousins frei and Freund. Free meant someone who was joined to a tribe of free people by ties of kinship and rights of belonging.” Fisher, supra, at 5.

Saucepans

My Dear Theo:

. . . . Let’s talk of something else – I have a model at last – a Zouave – a boy with a small face, a bull neck, and the eye of a tiger, and I began with one portrait, and began again with another; the half-length I did of him was horribly harsh, in a blue uniform, the blue of enamel saucepans, with braids of a faded reddish-orange, and two yellow stars on his breast, an ordinary blue, and very hard to do. That bronzed, feline head of his with a red cap, I placed it against a green door and the orange bricks of a wall. So it’s a savage combination of incongruous tones, not easy to manage. The study I made of it seems to me very harsh, but all the same I’d like always to be working on vulgar, even loud portraits like this. It teaches me something, and above all that is what I want of my work. The second portrait will be full length, sitting against a white wall.

Vincent van Gogh to Theo van Gogh (21 June 1888)


For Dave Bonta, on the tenth anniversary of
Via Negativa.

I began, began again
with half-length, harsh
in enamel saucepans

that bronzed feline against
the orange bricks of
a wall

so a savage nation of tones
I made. it seems
harsh, vulgar, loud —

traits like his.

teach me something
full length — sit against
a white wall

..
3PictureVanGoghZouave

Van Gogh’s Der Zuave, the half-length referred to in van Gogh’s letter.

At least back then

20131207-034419.jpg

Detail from a map I found this morning in Janson’s History of Art (8th edition, page 822) depicting North America in 1815. I’m not sure Mr. Jefferson would have approved of New York and Philadelphia implicitly being made Charlottesville’s equal.