And certainly poetry is not the inculcation of morals, or the direction of politics; and no more is it religion or an equivalent of religion, except by some monstrous abuse of words . . . . On the other hand, poetry as certainly has something to do with morals, and with religion, and even with politics perhaps, though we cannot say what.

- T. S. Eliot, from his preface to the 1928 edition of The Sacred Wood

T. S. Eliot was a poet, but he was also a man, and I imagine and care about and defend the man, and do so without defending his religion or his politics or even his poetics, because of his poetry.

Eliot wouldn’t have liked that – I mean, the care I profess for him through his poetry. He could make no connection to himself through his published poems. If he could have in a given case, the poem in question would hardly have been worth publishing. That is (and to state the contraposition), Eliot’s successful poem entirely replaced the feeling that gave rise to it. The feeling was private, anyway, and is of no interest to anyone but the poet.

Not woe itself, but the distance it keeps.

— Bill (of St. Louis) (@i_cant_look) June 7, 2012

Particularly in Eliot’s case, however, the opposite was true. It seems as if everyone were interested in what Eliot was thinking and feeling when he wrote his poetry. Everyone, it seems, except Eliot. Although he thought highly of parts of The Waste Land, for instance, he said for him it was “just a piece of rhythmical grumbling.”¹ He thought highly of his poem only in the context of the tradition it entered. There was nothing of him left in the poem to connect with as its creator.

Tradition alone is objective, Eliot thought, so poetry is tradition’s alone. To “surrender to the tradition,” as Frank Kermode explains it, Eliot was required to lose whatever emotional fillip first caused him to pick up his pen. Eliot approved of Gottfried Benn’s description of the poet’s process:

When the words are finally arranged in the right way – or in what he comes to accept as the best arrangement he can find – [the poet] may experience a moment of exhaustion, of appeasement, of absolution, and of something very near annihilation, which is in itself indescribable. And then he can say to the poem: “Go away! Find a place for yourself in a book – and don’t expect me to take any further interest in you.”²

Eliot’s poems left him to make their way in the world, or at least in the world of tradition, which for Eliot was the same thing.

Tradition fed Eliot’s aesthetics and made room for his poems, but tradition also gave Eliot a sense of himself as both a public and private man. Try to ignore the public Eliot, and the private Eliot will meet you at his door with ironic, mirthless laughter. Eliot insisted on his masks, and not just because he was a playwright. Masks make men – public men, anyway, and public men take the pressure off and even defend the private men they correlate to. Eliot’s “objective correlative,” then, is not just part of Eliot’s rather uncomplicated poetics. Just as a poem’s impersonality comes “at the expense of its correlation with the suffering of its author” (Kermode’s explanation)³, so the health of a man’s public persona comes at the price one pays to protect his private self.

Eliot’s tradition wasn’t merely a literary tradition. The tradition that permits greater means of understanding and evaluating Eliot’s poetry involves arts, letters, education, religion, and politics. He was driven to Roman Catholicism in part because of its catholicity. He was driven to conservative and imperialist politics in part because of what his poems required of him. Kermode explains that there was in Eliot “an element of mysticism also, and a scholastic sense of the complexities of time and eternity” that informed his religion and politics.⁴ Tradition is not just literature but also tradition’s public sphere and the public men and women who walk around it. No tradition, no poetry, and worse: no public man.

The union of states, the forgiveness of sins.

— slow reads (@SlowReads) February 14, 2013

° ° °

Though Eliot’s politics fail even as a guardian over an artistic tradition⁵, I’m drawn to his notion of poetry as “something to do with morals, and with religion, and even with politics perhaps, though we cannot say what.” Eliot hated the idea of a society of sequestered religious, literary, and political specialists, a problem that has steadily grown worse since he wrote about it:

And just as those who should be the intellectuals regard theology as a special study, like numismatics or heraldry, with which they need not concern themselves, and theologians observe the same indifference to literature and art, as special studies which do not concern them, so our political classes regard both fields as territories of which they have no reason to be ashamed of remaining in complete ignorance.⁶

Choirs are the great levelers. Who knew a lawyer or a programmer or a nightwatchman could sing? Who knew they’d wear the same clothes?

— slow reads (@SlowReads) January 13, 2013

The sequestration of politics, religion, and art, he believed, is endangering the planet’s physical health:

For a long enough time we have believed in nothing but the values arising in a mechanized, commercialized, urbanized way of life: I would be as well for us to face the permanent conditions upon which God allows us to live upon this planet. And without sentimentalizing the life of the savage, we might practice the humility to observe, in some of the societies upon which we look down as primitive or backward, the operation of a social-religious-artistic complex which we should emulate upon a higher plane.⁷

Yes.

I brood a lot, as I guess my occasional screeds suggest. I’m no politician, theologian, or literary scholar. But as a lawyer I worked with politicians, as a church worker I had an interest in theology, and as an English teacher I’ve kept my hand in literature. Over the past number of years I find that my blog has divided itself among political, religious, and literary posts. Nothing could have pleased me more than finally finding some common ground among my three interests, as I reported recently in an update to an old post, “Our Sardonic Lord.”

I viscerally feel the lack of Eliot’s so-called “social-religious-artistic complex” if only because I feel torn among something like these three callings while something inside tells me I should hear them as one.

I am afraid to move: there is little left of a public sphere. “When the wicked rise, men hide themselves” (Proverbs 28:28). I like to hide; besides, I’m certainly no more talented than the next man. But the calling itself, whether it ever involves anything like action, is primarily a call to brood – to pray.

I am wont to want.I want for nothing.

— slow reads (@SlowReads) March 23, 2010

My heroes, too, are often brooders. I frequently picture three of them, and all of their actions or inactions I trace to their brooding. I have a primary brooder in each field – literary, political, and religious. It’s a good thing for me Eliot isn’t my literary brooder since he believed that he left nothing of himself in his poems.

Instead, my mind finds comfort in Robert Lax, the promising poet who left America in the 1960’s to become a hermit in Patmos until just before his death in 2000. I see him writing one, maybe two words, thinking about them for an hour or so, and then going down to the shore. Thomas Merton on his friend Lax:

. . . a mind full of tremendous and subtle intuitions, and every day he found less and less to say about them, and resigned himself to being inarticulate.⁸

(And Lax, like St. John, the surviving apostle now prophet, before him, living on the Isle of Patmos, opening cans of tuna for his cats.)

— slow reads (@SlowReads) December 31, 2012

My political brooder is Lincoln. I’ve read loads of Lincoln books, but the scene that sticks closest to me is the one Stephen B. Oates, in his Sandburg-like biography With Malice Toward None, engenders:

In 1853, Lincoln was riding circuit when reports came of new Congressional skirmishing over slavery in the territories. It appeared that Senator Stephen A. Douglas was trying to organize a Nebraska territory out in the American heartland, but free-soil and proslavery forces were wrangling bitterly over the status of slavery there. Lincoln followed the course of Douglas’s territorial bill as it was reported in the Congressional Globe, and he became melancholy again. Friends who saw him sitting alone in rural courthouses thought him more withdrawn than ever. Once when they went to bed in a rude hostelry, they left him sitting in front of the fireplace staring intently at the flames. The next morning he was still there, studying the ashes and charred logs . . . . [ellipse original]⁹

[2] The furnace fires at an April dusk. A bucket of coal stars, and the musk of burning dust.

— slow reads (@SlowReads) April 14, 2012

The passage of the Kansas-Nebraska bill the following year pushed Lincoln to act. “In a single blow, the bill had obliterated the Missouri Compromise line and in Lincoln’s view had profoundly altered the entire course of the Republic so far as slavery was concerned.”¹⁰ But rightly or wrongly, I trace back every action Lincoln took after Kansas-Nebraska to that all-nighter in front of the fireplace.

Ideals must burn low and long and locally.Lincoln was my kind of idealist.He understood the hell in his own idealism.

— slow reads (@SlowReads) January 16, 2011

My religious brooder is the Sprit itself:

. . . the earth was wild and waste,
darkness over the face of Ocean,
rushing-spirit of God hovering over the face of the waters—¹¹

Some translations have the Spirit in action – “moving” – and others have it brooding – “hovering.” But Fox captures for me the possibility of both, the “rushing-spirit . . . hovering.” Fox also captures best what for me is the next-most pivotal verse in scripture, the verse after which Israel, as slaves and without a public life, would slowly begin to emerge from Egypt:

God hearkened to their moaning,
God called-to-mind his covenant with Avraham, with Yitzhak, and with Yaakov,
God saw the Children of Israel,
God knew.¹²

President Obama is now a Whig! I thought I was the only party member left. But Obama found the central structure and philosophy of his second inaugural address this week in the core Whig doctrine of equality.

Let’s first talk structure. Consider how Obama introduces the Declaration of Independence’s equality clause (“all men are created equal”). Obama’s introduction amounts to a restatement of the opening to Lincoln’s Gettysburg Address. Both Lincoln’s and Obama’s openings say that American was founded on a concept (Lincoln, “proposition”; Obama, “idea”), they mention the number of years since the Declaration’s signing (Lincoln, “Four score and seven years ago”; Obama (rather more prosaically), “more than two centuries ago”), they mention the importance of committing to the concept of equality (Lincoln, “dedicated”; Obama, “allegiance”), and they quote the equality clause itself. Here’s a diagram of these similarities:

By the time Lincoln gave his Gettysburg Address, of course, the Whig Party was defunct, and most Northern Whigs had joined the nascent Republican Party. But the Gettysburg Address’s focus on the equality clause was a posthumous vindication of the Whig Party and its two central ideas. The first is that America is a single nation and not a confederation of states subject to the states’ secession. The second is that the Declaration’s equality clause was the philosophical force behind America’s social and economic improvement.

I’ll start with the latter idea. Obama cited the equality clause in support of equal pay for equal work, gay marriage, removing barriers from voting, immigration reform, and child safety issues, including gun control. That’s a lot of social and economic change justified by a single clause in the Declaration of Independence. I’ll look at three of those issues (equal pay, gay marriage, and immigration reform) and examine what Lincoln, with his Whiggish political philosophy, might have done.

1. “All men are created equal” and economic fairness

Lincoln might have done much to require equal pay for equal work were he alive today. Equal pay for equal work is an issue of economic fairness, and, according to Lincoln scholar Allen Guelzo, Lincoln explicitly tied the equality clause to economics:

Lincoln also read the Declaration as promoting the critical Whig demand for economic expansion. The foundation of any worthwhile idea of equality was economic “betterment,” and that right was what Lincoln found first in the Declaration. “It was that which gave promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance.” [Quoting Lincoln]¹

Guelzo quotes a Whig newspaper’s editorial connecting the equality clause with internal improvements and greater education on the same “equal chance” line of thought. Indeed, according to Guelzo, “No part of the Declaration had more appeal for the Whigs than the controversial ‘equality’ clause, since equality in the Whig lexicon immediately translated into economic opportunism, and thus positioned the Declaration as an endorsement of the Whig political agenda.”²

Obama’s endorsement of equal pay for equal work, then, would seem like an extension of the Whiggish alignment of the equality clause with economic issues.

Obama was whistling Lincoln’s economic tune long before this week’s inaugural address, of course. When asked during the second debate what was the biggest misperception the American people had of him, Obama answered (in pertinent part):

I believe in self-reliance and individual initiative and risk takers being rewarded. But I also believe that everybody should have a fair shot and everybody should do their fair share and everybody should play by the same rules.

Lincoln also was quick to point out that the equality clause called for economic opportunity and not for economic equality. The Declaration “does not declare that all men are equal in their attainments or social position,” Lincoln pointed out. But “all should have an equal chance”³ – the equivalent of Obama’s insistence that “everybody should have a fair shot.”

The equality clause was aspirational, as Lincoln also took Jesus’ injunction to “be ye perfect, as your Father in heaven is perfect”:

The Savior, I suppose, did not expect that any human creature could be perfect, as the Father in Heaven; but . . . He set that up as a standard, and he who did most towards reaching that standard, attained the highest degree of moral perfection. So I say in relation to the principle that all men are created equal, let it be nearly reached as we can. . . .⁴

2. “All men are created equal” and gay marriage

Lincoln, however, probably never conceived of the notion that the equality clause would aspire as far as gay marriage. The very term “gay marriage” suggests, though, that its proponents see the issue as one of equal rights. Those proponents would find more support from Lincoln once the Civil War had begun than they would before he was president. Before becoming president, Lincoln was not prepared to grant African Americans social equality:

Blacks, Lincoln insisted, may have to tolerate some measure of inferiority in their civil or social rights in an overwhelmingly white society, and the probability that this would remain a permanent feature of American life kept Lincoln proposing gradual emancipation and colonization rather than abolition as the ultimate answer. But “no sane man will attempt to deny that the African upon his own soil has all the natural rights” the Declaration “vouchsafes to all mankind.”⁵

Lincoln changed his mind, of course, about the applicability of the equality clause to African Americans in their home country, the United States. And, as my students pointed out to me today as we discussed Obama’s inaugural, each generation may find its own inspiration from the Declaration’s equality clause.

3. “All men are created equal” and immigration reform

Obama also tracks Lincoln by tying immigration reform to the equality clause:

Our journey [to equality] is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.

Lincoln believed that the Declaration, and particularly its equality clause, made immigrants just as “American” as the colonists who adopted the Declaration in 1776:

“But when [immigrants] look through that old declaration of Independence,” Lincoln believed, they find principles that rise above one’s place of birth . . . . “They find that those old men say that ‘We hold these truths to be self-evident, that all men are created equal,’ and then they feel that that moral sentiment taught in that day evidences their relation to those men . . . and that they have a right to claim it as though they were flesh of the flesh of the men who wrote that Declaration.”³

The universality of the equality clause – its self-evident application to every person in every nation – meant that, for Lincoln, immigrants had as much natural right as Americans in equality. If Lincoln agrees with Obama that “what makes us American is our allegiance to an idea” (i.e., the idea that all men are created equal), then the immigrant seeking equality and the economic opportunity equality envisions is as much of an American as I, a natural-born citizen.

The notion that our nation was “dedicated to the proposition that all men are created equal” (Lincoln) – the notion that what makes an American is her “allegiance to [the idea that all men are created equal]” (Obama) – is a radical departure from the usual concepts of love of homeland; fear of another race, religion, or nationality;  and economic protectionism that in part seem to drive our immigration debate and decisions.

4. The Declaration of Independence and Secession

But beyond adopting Lincoln’s expansive and aspirational view of the equality clause, Obama’s speech adopts the Declaration of Independence itself as the document creating the country’s social contract. Obama’s stance is in harmony with the Whigs, who praised the Declaration “for creating a single unified nation, not the confederation of states that Calhoun found in the Constitution.”^{who have threatened secession of late.}

All this comes six months after I criticized Obama here for ceding the Constitution and the Declaration of Independence to the strict constructionists:

Little that Obama or his campaign says or does is ever traced back in the public’s mind to a coherent theory of government implemented before, say, the presidency of Theodore Roosevelt.

By adopting this week the old, Whiggish approach to the Declaration and its equality clause, Obama has made things interesting.

More on the red-blue divide, this time focusing on gun ownership. The eleven states with the highest number of gun owners per capita are red; the nine states with the lowest number are blue. Of course, people own guns for many reasons; eight that come to mind are target shooting, hunting, shooting varmints, assisting in crimes, protection from burglars, collecting, reassurance in the face of impotence (defined broadly), and rising up in arms, if it comes to that, against the federal government^{prevalence of concealed weapons makes me think my list is not nearly complete.}

But there’s a widening gun gap between the red and the blue. Interestingly, the percentage of households with guns is declining, but the number of guns per capita is increasing. That means some people are buying more than one or two guns. Most of them, as it turns out, are Republicans. As Harold Meyerson reported this week:

There’s a name for those gun buyers: Republicans. As the FiveThirtyEight blog noted Tuesday, the 2010 General Social Survey showed that 50 percent of adult Republicans owned guns, while only 22 percent of adult Democrats did. This gap in gun-ownership rates has swelled over the past 40 years: In the 1973 survey, 55 percent of Republicans and 45 percent of Democrats had a gun at home. Polls suggest this gap will continue to widen: In the 2008 national exit polls, the percentage of Democrats with guns declined as the age cohorts grew younger, while the GOP rate of gun ownership was the same across all age groups. Increasingly, then, it’s our shrinking Republican minority that is buying guns.

Our next Congress won’t pass meaningful gun control despite the renewed popularity of such measures and despite what Fareed Zakariah calls the “blindingly obvious” link between gun control and reduced gun violence. The GOP-led House is becoming almost impervious to national opinion polls. Why? Even though this year more people voted for Democratic House candidates than for Republican ones, new redistricting favored the Republicans, who controlled more state governments during the latest census. Redistricting means the GOP keeps its House majority, and it also ensures that most congressmen won’t allow the kind of gun control that would help prevent massacres.

The political gap may keep us from making headway against guns, but it didn’t cause the gun gap. The gun gap and the political gap, I think, are both symptoms of a worldview gap. And as for the owners of these private magazines, I’m crossing off target shooting, hunting, shooting varmints, assisting in crimes, and protection from burglars.

(Previous red-blue divide posts focused on the new migration of people to states reflecting their political views and on the (not unrelated) new prevalence of state executives and legislatures controlled by a single party.)

“Gun Show” by Michael Glasgow. Used by permission.

1. I usually plan a tweet or two a day. But I’ll tweet every hour on the hour during Good Friday, Holy Saturday, and Easter Sunday.
2. An Holy Week sermon on self-government and human nature in 80 tweets. I’ll reveal my closest political and religious sentiments and
3. . . . in so doing, offend many and bore more. It’s an Easter argument to Christians, so forgive some alienating language and citations.
4. The American experiment is an inquiry into human nature: can a person govern herself? And can people, collectively, govern themselves?
5. Hamilton and Lincoln frame the Federalist and the Gettysburg Address, respectively – and the U.S. itself – around that second question.
6. Lincoln’s open question is our open question: “… whether that nation, or any nation, so conceived and so dedicated, can long endure.”
7. (Lincoln’s “that nation, or any nation”: any “American exceptionalism” is in our universality, he says – our unexceptionalism.)
8. It was an open question in 1863, and it’s an open question today. We’re an open question, in fact: we were dedicated to a “proposition.”
9. It’s tough, existing as a proposition. It’s easier to be a nation of accreting culture, heritage, and language, for instance. And we are.
10. But it’s not reserved for us only to accrete, to drift. We are what we say about mankind. Hamilton is resigned to it, as to one’s fate:
11. “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question . . .”
12. “. . . whether societies of men are really capable or not of establishing good government from reflection and choice, or . . .”
13. “. . . whether they are forever destined to depend for their political constitutions on accident and force.” – Hamilton, Fed. No. 1.
14. So. Can men and women govern themselves? Is democracy possible, or even desirable, from what we know of human nature?
15. Calvin and Hobbes, strange bedfellows even before the comic strip, say no. Humanity is too benighted to govern itself.
16. And a demagogue’s polemics always imply we can’t govern ourselves. “Kenyan, anticolonial behavior” was spoken to his base’s baser angels.
17. And yet a Pollyannaish view of human nature is no basis for self-government, either.
18. Our idealism must be grounded in human nature. I’ll go further: idealism must work for ideal moderation: an ideal grasp of human nature.
19. What do you believe about human nature? After all, Hamilton and Lincoln say that our nation is grounded on a certain view of it.
20. Can a society of men govern itself? Too easy to say yes; too easy to say no. I answer: Fielding. Dostoevsky. Faulkner. High drama.
21. (Moses, too. Reading Hobbes, I figured he’d try to get around “Ye shall be unto me a kingdom of priests.” & in Leviathan, there it was!)
22. We live the drama because we live the question. Some generations – Hamilton’s, Lincoln’s, ours – more than others.
23. “’Man is a vile creature! … And vile is he who calls him vile for that,’ [Raskolnikov] added a moment later.” – Crime & Punishment.
24. My own “moment” took twenty years. (Maybe Raskolnikov was faster because, like David after Bathsheba, his sin was always before him.)
25. I’m not saying man’s not vile, but I’ve stopped saying he is. (After an identity crisis, I see mankind differently than I did before.)
26. “If men were angels, no government would be necessary.” – James Madison.
27. “Since men aren’t angels, self-government is impossible.” – Calvin (in so many words). And Hobbes. And the Family Bookstore.
28. (Man walks into a Family Bookstore. “Got anything by Dostoevsky?” Blank look. But are there better Christian novels?)
29. Nothing comes cheap in Dostoevsky. Especially redemption. What height without depths?
30. Many of Zondervan’s books imply that the possibility of self-government fell with the Fall. And that a prayer makes us angels.
31. Idealism isn’t optimism. Optimism won’t touch pessimism any more than light will touch darkness.
32. God “made darkness his secret place” (Psalm 18:11). We must, too, until we’re convinced of it. Dostoevsky did.
33. “We had the sentence of death in ourselves” (2 Co.). What does that mean? Dostoevsky, who faced a firing squad before writing, knew.
34. (Robert Bly: “To write differently, you have to change your life.” Dostoevsky’s sentence improved his sentences.)
35. I can turn from left to right and back again. But my politics, like my religion, won’t deeply change until I reach bottom.
36. (Not that, having reached bottom, we’d agree with one another. But I think we’d listen, maybe sometimes reverently, to our opponents.)
37. Our political discourse will remain this coarse until we’ve reached bottom, tearing up much good and bad on the way down.
38. (And politics and religion are inextricably tangled. Why else would I believe in Jefferson’s separation of church and state?
39. Because we can’t speak of either, religion and politics are already enmeshed by implication.
40. But at least we can speak of “the sentence of death in ourselves.” Barely, though, because death, too, is dying.
41. Death is dying. I tweet about death, in fact, to keep it alive in me.
42. (The imposed silence of euphemisms: “The departed.” “Passed on.” The hushed tone peculiar to visitations.)
43. Calvin was a forerunner of the modern religious state: I’ll tell you what God says, and you do it.
44. What about a family model? A Christian minivan of a government with the father at the wheel? Locke’s first treatise wrecked it:
45. Patriarchalism, King James’s pet notion, is as modern as the divine right of kings. Locke saw its threat to the medieval notion of equality.
46. In a sense, the American Revolution was not a revolution but a war asserting rights under the English Constitution and medieval natural law.
47. The crowd rushed Jesus to make him king. Later, the crowd rushed to throw him off a cliff. Each time he escaped.
48. America will lead into the Millennium. Or it will fall until the Rapture. Like Jesus, America must escape the coronation and the cliff.
49. Hobbes was partly & unwittingly a forebear of totalitarianism: There is no God, we are gods, you are people, and they are animals.
50. But Jefferson and Lincoln paired a society’s ability to govern itself with the proposition that all men are created equal.
51. Equal? Man requires a hierarchy (I’ll give Hobbes that), but Locke & Jefferson deliver: Man stands above Nature and below Nature’s God.
52. Jesus declares an equality-in-hierarchy: “I ascend unto my Father, and your Father; and to my God, and your God” (John 20:17).
53. Christianity even honors all three levels – God, People, and Nature – with separate resurrections in order of hierarchy.
54. Man requires a hierarchy. So, from a political standpoint, there must be a God because there must be a man. That’s liberalism.
55. Natural law is based on human nature set (and tugged) between angels and beasts.
56. Villefort claims that this tug creates “apoplexy” in every person: “You [the Count] who, like Ariel, verge on the angelic . . .”
57. “. . . are but an inert mass, which, like Caliban, verges on the brutal.” The Count of Monte Cristo, Ch. 48.
58. How unequal can equal be? To scale, our mountainous world is smoother than the smoothest cue ball. God gives scale.
59. Or as Donne says, “No man is so little, in respect of the greatest man, as the greatest in respect of God.” – Emergent Occasions, Ch. 2.
60. God gives scale, so when we’re more equal, God is closer. (Equality’s goal is ideal moderation: an ideal grasp of human nature. Cf. 18.)
61. Are there any liberals left? I.e., Lockean liberals? Locke believes man is naturally free and equal, which makes Raskolnikov possible.
62. Locke believes people can reason about virtue & happiness, which makes freedom and a moral society – even a moral democracy – possible.
63. Come now, & let us reason together: Calvin’s wrong. If people can’t reason about first things, revelation faces an apocalyptic future.
64. But Bork is also wrong: if equality means majorities decide what’s moral, the American Revolution is just a decelerated French one.
65. Majority morality: “Might makes right.” And in a democracy, the majority makes might makes right. In a short-lived democracy, anyway.
66. Jefferson: People are “independent of all but moral law.” And so the Supreme Court should revisit John Marshall’s natural (& moral) law.
67. Rousseau, Hobbes, and Calhoun have different takes on the state of nature, but Locke’s matches Christian metaphysics.
68. In Locke’s state of nature, the individual preexists society and government. Inalienable rights require this existential metaphysics.
69. Free & equal. But in a Christian nation, non-Christians are not human. Not politically. “Christian nation” is moronic. Oxymoronic, too.
70. Voting speaks of our common humanity and even of our maturity: only a mature person understands his equality with others. Take Peter.
71. Equality? Peter “accepts Jesus as his personal savior” (or whatever) and becomes the best Christian on earth by putting others down.
72. “I love you more than they do!” No equality. No humanity, no conversion. (At the Last Supper, Jesus says Peter isn’t “converted” Lk 22.)
73. After Peter denies him, Jesus almost mocks him: “Do you love me more than these do?” Peter (annoyed): “I like you.” Now we’re equal.
74. Granted, the vote only points to maturity; it doesn’t create it. So what would Jesus do? “Let the most mature among you cast the first vote.”
75. And granted, a lot of immature people vote. (Read the idealists Locke & Madison: human nature scared the shit out of them.)
76. I worry about what a majority will do. But Jesus didn’t stop Peter from playing God. Jesus allowed freedom to teach Peter.
77. Lincoln’s listeners dedicated children only to God. It must have shocked them to hear that the U.S. was dedicated to a proposition instead.
78. “Dedicated to the proposition that all men are created equal.” Lincoln turned down the opportunity to declare us a Christian nation.
79. But Lincoln discovered one of Christianity’s most-cherished principles in the Declaration of Independence:
80. “You are all brothers” (Matt. 23). Equality: the possibility of redemption, of maturity, of self-government.

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“Trill” are my Twitters. Tweet suites from @slowreads.

Detail of Jacopo Bassano’s The Last Supper. Public Domain.

On Apocalyptic talk. Let’s put two pieces of evidence together. On May 16, 2010, the Washington Post reported that “people are voting with their feet” and moving to counties and states that share their cultural and political viewpoints. As a result, “Many more states and counties are dominated by one-party supermajorities than in the past.”

Four days ago, the New York Times reported that, as of early next year, about three-quarters of the states will have their executive and legislative branches controlled by a single party:

One party will hold the governor’s office and majorities in both legislative chambers in at least 37 states, the largest number in 60 years and a significant jump from even two years ago.

Are our social and political divisions becoming increasingly regional as well as increasingly bitter? Are parts of the country finding less and less in common with other parts? Will the zeal of one-party rule on the state level combined with the U.S. Supreme Court’s current deference to the states (the Obamacare case restricted the federal government’s use of the U.S. Constitution’s commerce clause, for instance) eventually make living in a different state like living in a different country? Are we becoming as geographically polarized as we were just before our Civil War?

On The mysticism of Abraham Lincoln and Texas’s successive secessions. The idea of secession should be troubling to Americans, not only from a practical and patriotic viewpoint but also from a philosophical one. The argument in favor of a right to secede is the argument against a right to revolt, and the right of revolution – a right we must hold to now as much as we did in 1776 – is a basis of our political liberty. The American Revolution was the victory of the individual’s rights over the state’s when those rights were in conflict. Secession is the assertion of the state’s rights over the individual’s, beginning with the rejection, in 1860 as well as now, of a president’s election by majority vote.

So Ron Paul couldn’t have been further from the truth when he argued Monday that “Secession is a deeply American principle” and that “This country was born through secession.” I don’t describe too many philosophies as dangerous, but secession and its relativistic, historicist foundation are uniquely un-American and dangerous. Why? At its foundation, secession denies the political existence of the individual.

Paul continued:

If the possibility of secession is completely off the table there is nothing to stop the federal government from continuing to encroach on our liberties and no recourse for those who are sick and tired of it.

Paul here couldn’t have sounded more like John Calhoun, the chief philosopher behind nullification and secession.

First Rick Perry, now Ron Paul. Do conservatives believe in a people’s right to revolt or a state’s right to secede? Is there a spark of divinity in man, or is mankind so benighted that its rights exist only at a state’s behest? If the Republicans are going to reflect on what kind of party they now wish to be, as so many pundits have recently suggested they do, they could not start with a more important and fundamental issue.

“Your reflections on the Church are painful, as usual. The merit of the Church doesn’t lie in what she does but what she is. The day is going to come when the Church is so hemmed in & nailed down that she won’t be dong anything but being, which will be enough.”

- Flannery O’Connor to Erik Langkjaer, May 23, 1955

What is tomorrow’s presidential election about? The economy? The candidates say so only because the undecided – and unaligned – voters say so.

The economy isn’t the real issue, says Yuval Levin in his Weekly Standard article, “The Real Debate.” Watch the convention speeches, he suggests. Listen to Romney talk to his millionaire friends behind closed doors. If they didn’t have those pesky independents to win over, the parties would say that the election is a struggle between the government (defended by progressives) and individuals (defended by conservatives).

But Levin eventually dismisses this idea, too. When it comes to understanding what’s at stake in this election, the parties are about as clueless as the undecided voters.

Levin spends the rest of the article developing what he considers the true meaning of the election: the survival and prosperity of “the space between the individual and the state” and the “mediating institutions that occupy [that space]: the family, civil society, and the private economy.” Progressives “have always viewed those institutions with suspicion, seeing them a instruments of division, prejudice, and selfishness,” Levin asserts, but conservatives insist that “local knowledge channeled by evolving social institutions – from civic and fraternal groups to traditional religious establishments, to charitable enterprises and complex markets – will make for better material outcomes and a better common life.”

Levin is mistaken about three things: (1) the cause of some of these institutions’ declines, (2) the proper role of these institutions relative to individuals and government, and (3) the result his focus on these institutions would produce.

(1) Why the public realm is in decline

Levin believes that the federal government, under the control of the progressives from Franklin Roosevelt forward, has shoved churches and charities out of their proper roles of caring for the poor. While the government has maintained a social safety net since the New Deal, however, churches and charities have never seen the demand for charity exceed their supply. This is true especially when one considers the entire world. Jesus’ promise that “The poor you will always have with you” is in no danger of being annulled by the United States government’s safety net.

Like many neoconservatives, Levin argues that the loss of a public life is only a product of our current saeculum, Levin referring exclusively to the dynamics of the years following World War II. Richard Sennett argues more convincingly, though, in his 1974 book The Fall of Public Man that our public life has been deteriorating for about two hundred years and through no fault of the federal government. In eighteenth century English and French societies were balanced between the claims of civility (public life) and the claims of nature (private life):

They saw these claims in conflict, and the complexity of their vision lay in that they refused to prefer the one over the other, but held the two in a state of equilibrium. Behaving with strangers in an emotionally satisfying way and yet remaining aloof from them was seen by the mid-18^th Century as the means by which the human animal was transformed into a social being. . . . The tensions between the claims of civility and the rights of nature . . . not only suffused the high culture of the era but extended into more mundane realms. These tensions appeared in manuals on child-rearing, tracts on moral obligation, and common-sense beliefs about the rights of man. (18 – 19)

The breakdown of a transcendent “order of Nature” associated with Romanticism around the turn of the nineteenth century and industrial capitalism’s growth as the century progressed caused people to question the conventions that upheld public life, Sennett argues.

Gradually the will to control and shape the public order eroded, and people put more emphasis on protecting themselves from it. The family became one of those shields. During the 19^th Century the family came to appear less and less the center of a particular, nonpublic region, more an idealized refuge, a world all its own, with a higher moral value than the public realm. (7)

Sennett, a sociology professor at New York University and the London School of Economics, was at least as conservative when he wrote The Fall of Public Man as Levin is now. Sennett believes, for instance, that our current emphasis on sexuality as merely “an expressive state” is indicative of the loss of the public realm. “We uncover [sex], we discover it, we come to terms with it, but we do not master it,” he states. But his conservative thesis does not lead him to blame the federal government for burdening family life. In fact, given Sennett’s thesis, it would be hard to imagine any government action that would alone recreate a balance between a public and private life, thereby freeing the family from some of the burden the collapse of public life has placed on it.

(2) The proper role of local institutions relative to individuals and government

Levin places “the family, civil society, and the private economy” between the individual and his government. Reading Levin, the image that comes to mind of these entities is never that of a triangle, as one might see reading John Locke’s commentary on the individual, society, and government. Instead, Levin creates a vector of sorts with society standing between the individual and the state. He speaks twice of “the space between the individual and the state” and of “that intermediate space, and . . . the mediating institutions that occupy it.”

One wonders if Levin’s mediating institutions include unions, anti-defamation leagues, and mosques, but no matter. At a conceptual, theoretical standpoint, no institution should serve to mediate between government and individuals. Indeed, from a metaphysical standpoint, no space exists in our republic between government and individuals.

Locke and our Founders believed in a state of nature in which individual preceded society and that society preceded government. He believed that, should government fail, society and individuals would still exist. He did not believe, however, that elements of society such as the family, the church, or the private economy were “mediating institutions.”

John Calhoun, on the other hand, didn’t believe that individuals existed outside of their society from the point of view of government. He denied the state of nature that Locke, Jefferson, and Lincoln maintained as a necessary metaphysical understanding between individuals and their government:

But it is equally clear, that man cannot exist in such a state [of nature]; that he is by nature social, and that society is necessary, not only to the proper development of all his faculties, moral and intellectual, but to the very existence of his race. Such being the case, the state is a purely hypothetical one; and when we say all men are free and equal in it, we announce a mere hypothetical truism; that is, a truism resting on a mere supposition that cannot exist, and of course one of little or no practical value….

Calhoun denied that the individual existed outside of society, and he used that denial to defend slavery. If we adopted Levin’s similar metaphysical relationship among individuals, society, and government, we may lay the foundation for the end of the secret ballot. The Supreme Court has recently lifted the prohibition against bosses telling their employees how they should vote. Could employees and other “intermediaries” also put more pressure on individuals by putting an end to the secret ballot, which isn’t nearly as old as our republic?

This space, if it existed, would abhor a vacuum. If the fifty states were sucked into it as “mediating institutions” between individuals and the federal government, could we justify the repeal the constitutional amendments for the direct election of United States senators and for the more direct means of electing presidents? Would we be more inclined to pass the recently drafted “Repeal Amendment,” through which a vote of two-thirds of the state legislatures would overturn a federal law or regulation?

Despite Levin’s charge, few people – even few progressives – want to see the economy, the family, religious institutions, and voluntary associations weakened. But I don’t want them seen as standing “between” and individual and her government, either. No such role for them was mentioned in the Constitution or the Federalist Papers, and no such power should be accorded to them now.

I suppose I open myself to the charge of being too concerned with political metaphysics. I would answer the charge as follows: the hierarchy of Nature’s God, Man, and Nature is fixed and is also baked into our founding documents. This hierarchy amounts to a political convention – not the type the parties hold just before each presidential election, but a necessary fiction, if you will, like a dramatic convention, examples of which would be an aside and a soliloquy that an audience chooses to believe in to make a play work.

The hierarchy among God, people, and nature, famously expressed in Jefferson’s observation that “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred,” is an instance of transcendence in a culture that Sennett says is governed by “the principle of immanence” (22). And this hierarchy – this precious convention – and the famous clause it fosters, “All men are created equal,” often seems invisible to very conservatives who claim they want to restore our Founding Fathers’ governing framework.

(3) Undue focus on local institutions and restoring the public sphere

It seems counter-intuitive to say that attempts to improve the political clout of local institutions would prevent us from restoring a balance between our public and private spheres. However, what Sennett calls “localism and local autonomy” is a symptom of the loss of our public sphere.  Our “dead public space” and our “contempt for ritual masks of sociability” have made us more reliant on relationships among people we know (15). (These ritual masks, the eighteenth-century version of which amount to the most entertaining reading in The Fall of Public Man, make up a more comical kind of convention than Locke’s and Aquinas’s grand Natural Law conventions, but they would be almost as important as a means of restoring our public life.) We now fear impersonal life – the life that our roles and masks allowed us the freedom to experience before Romanticism. Localism, taken to an extreme and as a substitute for an impersonal public life, can be self-defeating in a global culture:

Localism and local autonomy are becoming widespread political creeds, as though the experience of power relations can have more human meaning the more intimate the scale – even though the actual structures of power grow ever more into an international system. Community becomes a weapon against society, whose great vice is now seen to be its impersonality. But a community of power can only be an illusion in a society like that of the industrial West . . . . In sum, the belief in direct human relations on an intimate scale has seduced us from converting our understanding of the realities of power into guides for our political behavior. (339)

This “retribalization” Sennett warned us of almost forty years ago seems to fit the nationalistic Romantic age as well as today’s political polarization and international religious strife. Localism, which can lead to retribalization, won’t make up for the lack of a true, public life.

4. And so

All politics may be local, but it’s not all personal. We have to balance our care for local institutions with a new willingness to adopt protocols and conventions, some theoretical and some seemingly silly, to shore up our freedom and, as Sennett puts it, to “learn to act impersonally” (340).

I’m voting tomorrow, but not to restore the space between the individual and government. Mike Huckabee called to let me know today that the election will set the course of this country for a century. It’s a big election, but after thinking over some of the sweep of John Locke’s and Richard Sennett’s thought tonight, I don’t know if I can go as far as Huckabee. I’m not sure, either, if Sennett, in enjoining us to act impersonally, had Huckabee’s robo-call in mind.

Our nation, of course, is in the thrall of a bitter conflict between two worldviews, each strengthened and reinforced by means hardly imagined a generation ago. Each worldview broadcasts from its own television networks, speaks from its own pulpits, and teaches at its own universities. Places where people still go as a matter of course – to college, to church, and even to the TV to catch the evening news – often no longer permit the views of its rival worldview.  These institutions and media sources showcase the opposing worldview’s extremes as if they were its chosen representatives or at least its byproducts. By doing so, organizations with the biggest claim to our ears reinforce our perceptions of the fundamental error inherent in the worldview they disparage.

We exist in bubbles that a generation ago weren’t bubbles at all. The fact that colleges, churches, and television networks hold tenuously to a reputation of impartiality serves only to lull us into believing that we live in democracy’s full flower. We walk as free men walk, but our freedom is largely an illusion.

Well-frequented places where worldviews air their differences have been reduced even as our access to information has increased. The U.S. Senate, the World’s Greatest Deliberative Body, has ground to a halt, and not because deliberation takes time. Senators really don’t debate anymore on the Senate floor or anywhere else. Presidential debates draw millions of viewers to the possibility of debate, but the undecided voters usually go away unsatisfied. Candidates ignore questions with impunity, and formats trivialize thoughtful debate and encourage sound bites.

In twenty-first-century America, a person can spend her adult years without being confronted with one thoughtful argument in favor of the worldview she has dismissed. The best she can hope for is being stuck in traffic behind a particularly clever bumper sticker or stuck in line behind a particularly thoughtful tee short.

I’ve read lots of pieces on how to address what separates us. I’ve written some, too. The best article I’ve read was written long before this pall fell on our present polity. Some excerpts from Walter Lippmann’s article “The Indispensable Opposition,” first published in the August, 1939 issue of the Atlantic Monthly:

If the democratic alternative to the totalitarian one-way broadcasts is a row of separate soapboxes, then I submit that the alternative is unworkable, is unreasonable, and is humanly unattractive. It is not true that liberty has developed among civilized men when anyone is free to set up a soapbox, is free to hire a hall where he may expound his opinions to those who are willing to listen. On the contrary, freedom of speech is established to achieve its essential purpose only when different opinions are expounded in the same hall to the same audience.

For, while the right to talk may be the beginning of freedom, the necessity of listening is what makes the right important. Even in Russia and Germany a man may still stand in an open field and speak his mind.

We must insist that free oratory is only the beginning of free speech: it is not the end, but a means to an end. The end is to find the truth.

For experience tells us that it is only when freedom of opinion becomes the compulsion to debate that the seed which our fathers planted has produced its fruit. When that is understood, freedom will be cherished not because it is a vent for our opinions but because it is the surest method of correcting them.

For unless all the citizens of a state are forced by circumstances to compromise, unless they feel that they can affect policy but that no one can wholly dominate it, unless by habit and necessity they have to give and take, freedom cannot be maintained.

I encourage you to read Lippmann’s entire piece, which speaks to us as the prophet Samuel spoke to a self-deluded, bubble-wrapped King Saul from the grave.

What do you think of the notion that America has a world mission? Does it sound too religious, too much like the language of crusade? Mr. Romney, a former missionary, speaks of America’s world mission with an almost religious zeal. Here’s an account of one of Mr. Romney’s recent speeches:

Addressing a Veterans of Foreign Wars convention Tuesday, GOP presidential candidate Mitt Romney made it clear he is “an unapologetic believer in the greatness of this country.”

“I am not ashamed of American power,” he said. “I take pride that throughout history our power has brought justice where there was tyranny, peace where there was conflict, and hope where there was affliction and despair.” . . .

Romney told the VFW he . . . would be “guided by one overwhelming conviction and passion: This century must be an American Century.”

Mr. Obama also speaks of America in superlative terms in almost every stump speech: we have the world’s best workers, entrepreneurs, researchers, scientists, colleges, and universities. We still offer the American Dream to people willing to move here and to work hard, he says.

Is our world mission linked to our military power, as Mr. Romney suggests, or to our economic opportunity, as Mr. Obama suggests? Whether our mission is to spread liberty beyond our boarders or to offer economic opportunity to those willing to relocate inside them, the candidates agree that we have a mission. Do we?

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Yesterday’s devotional puts it another way. Why is Paul Ryan’s idea of the idea America was founded on inadequate? During his first speech as the presumptive Republican nominee for vice president, Paul Ryan stated that America was founded on an idea:

But America is more than just a place…it’s an idea.  It’s the only country founded on an idea.  Our rights come from nature and God, not government.

The inadequacy is reflected in the August 15 entry in Henri Nouwen’s Bread for the Journey:

The two most important ways to protect our hiddenness are found in solitude and poverty. Solitude allows us to be alone with God. There we experience that we belong not to people, not even to those who love us and care for us, but to God and God alone.

Nouwen’s solitude and Locke’s state of nature are founded on the same idea: we are ourselves before God prior to becoming someone else’s someone — someone’s nephew, someone’s consumer, someone’s constituency, someone’s enemy, someone’s lifeline. Because the idea of unalienable rights comes from this existential notion, Ryan is on firm ground asserting that our rights come from God and not government.

But Locke’s state of nature is a necessary but not sufficient philosophical foundation for America. Nouwen’s entry continues:

Poverty is where we experience our own and other people’s weaknesses, limitations, and need for support. To be poor is to be without success, without fame, and without power. But there God chooses to show us God’s love.

Both solitude and poverty protect the hiddenness of our lives.

If solitude is akin to Locke’s state of nature, then poverty is akin to Jefferson and Lincoln’s notion that all men are created equal. The work of poverty, in whatever form it takes, brings us into solidarity with our neighbors. If we are not weak, we cannot relate to the weakness of others, and community is not possible.

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During his first speech as the presumptive Republican nominee for vice president, Paul Ryan stated that America was founded on an idea:

But America is more than just a place…it’s an idea.  It’s the only country founded on an idea.  Our rights come from nature and God, not government.

Ryan here states the essence of natural law’s distinction with positive law. (“Positive” law is law posited by government.) Natural law has been most helpful when a government has sought to circumscribe a people’s rights. Under John Locke’s version of natural law, if a ruler denies his people’s inalienable rights and refuses his people’s appeals, the people may “appeal to heaven” — i.e., recognize the state of war that exists between the ruler and his people. We did that in 1776.

Ryan is correct when he states that our rights come from natural law. He and others who have recently made this assertion imply, though, that the government cannot create rights, such as a “right” to health insurance despite preexisting conditions. This limited notion of rights makes a mockery of natural law. Many positive laws create rights — rights of action (i.e., the right to access courts to enforce legislative remedies), if nothing else. Locke and the Founders never said or implied that natural law precludes positive law. Positive law must not be inconsistent with natural law, to be sure, but our early Supreme Court cases, some of which considered positive law in light of natural law, rarely found them to be in conflict.

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When the heart is right
“For” and “against” are forgotten.

– Chuang Tzu (from Thomas Merton’s The Way of Chuang Tzu)

I like Obamacare’s medicine and policy; let’s get that out of the way. I liked it in 1993, and I like it now. But what I like best is the political process.

We have listened to one another. We have given in to one another. We can still compromise, we can still solve big problems. But time has taken the place of reason. Our deepest failing – our short collective attention span – has become our highest virtue.

We Americans are a forgetful people. We have forgotten that Obamacare is essentially the Chafee bill co-sponsored – co-sponsored! – by nineteen Republican U.S. Senators. The Chafee bill became the Republican rallying cry, the chief alternative to Hillarycare.

The Chafee bill contained that infamous Republican innovation, the individual mandate. It contained Obamacare’s state-based exchanges, its ban on denials for preexisting conditions, its subsidies for low-income people to buy insurance policies. It contained Obamacare’s expansion of the private insurance industry, its allowance for individual state innovation, its efficiency requirements, its reduction in growth of health care costs, and its expansion of Americans covered to around 94%. Even though the impartial Congressional Budget Office never did the analysis, the Chafee bill probably would have reduced the deficit in real dollars almost as much as Obamacare will. (Here’s a chart summarizing a comparison of the Chafee bill and Obamacare.)

I like how Democrats can now say, “Ha ha! You Republicans thought you lost when Obamacare was passed and upheld, but you really won! You got exactly what you wanted almost two decades ago, including your precious individual mandate that we hated, and the public voted us out of office in 2010 instead of you! Nyeh!”

I like how one can be a Republican in 1993 and wake up, Orlando-like, in 2010 a Democrat without modifying a single view. And how one can argue passionately as a Republican one decade and passionately as a Democrat the next while making the same points, even using the same words. In the alternative, I like how one can remain true to an inconstant party, ignoring the lipstick, the nights out of town, even the recently discovered love letters. We are virtuous consumers of political rhetoric: we remain loyal to a brand even when the brand itself is sold to its competitor. Time, aided by a certain peer pressure, makes it the most natural thing in the world to argue freedom to one’s parents one decade and responsibility to one’s child the next, all the while hearing faint echoes of one’s future or former self. We have raised a child, that father of the man. Somewhere, our parents are smiling.

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In 1968, David Frost interviewed Ronald Reagan and Robert Kennedy and asked them to address the purpose of life. For Reagan, it came down to “individual fulfillment.” The government’s job was to get out of the way. For Kennedy, it came down to fulfilling his responsibility to society by helping someone less fortunate.

Kathleen Kennedy Townsend wrote an article in The Atlantic last year entitled, “The Pursuit of Happiness: What the Founders Meant – and Didn’t.” In it, she reproduces Reagan’s and her father’s complete answers to Frost’s question. Then she implies that Reagan’s idea of life’s meaning – an individual happiness that the government could only threaten but never help to achieve or maintain – led to his anti-government rhetoric. Reagan, she believes, left us with “an unnatural obsession with individualism, a single-minded focus on wealth over work, and an anti-government animus.”

In this post, I’d like to use Townsend as a liberal voice in favor of an Aristotelian notion of “happiness.” I’ll also quote Harry V. Jaffa from his book A New Birth of Freedom  as a conservative voice in favor of the same notion. I’ll point out how neither Townsend nor Jaffa has brought the left or the right to the Aristotelian table. Frankly, the Aristotelian notion of happiness on an individual and societal level, which Jefferson and the Framers were schooled in, seems to scare the hell out of today’s political left and right.

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Obama has conceded America’s past to his opponents. It may cost him the election.

1. Who built that business?

Here’s the latest example of Obama’s concession.

As political junkies are aware (and attack ads will soon make the rest of America aware), President Obama recently said, “If you’ve got a business, you didn’t build that. Somebody else made that happen.”

Former Governor Romney pounced on Obama’s statement: “This idea of criticizing and attacking success, of demonizing those in all walks of life who have been successful, is something that is so foreign to us that we can’t understand it.”

Obama, of course, was not attacking success but supporting it. He was explaining one aspect of how entrepreneurs become successful – the necessary partnership businesses have with society and government. Obama feels the need to explain it because he wants to make the bigger point that Romney’s go-it-alone policies will hurt entrepreneurs. And, strictly speaking, Obama was referring to roads and bridges, not businesses. Here’s the quote in context:

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business — you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet. The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together.

The pundits say that Obama harmed himself by stating his case in such a way that a sentence could be taken out of context and easily misconstrued, and I suppose they’re right.  One of the Washington Post’s political pundits, Aaron Blake, points out that Obama’s remark feeds into the perception of him as a “big-government liberal.”

Obama frequently tries to express an individual’s relationship to society and government. But he is largely wasting his breath. Why? Because he and most other progressive politicians I know have not laid the philosophical groundwork for it.

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The fireworks on the Fourth reminded me of Kandinsky’s Point and Line to Plane. He returns there to something like the synesthesia of his earlier opus, On the Spiritual in Art, in his discussion of independent straight lines:

Moreover, independent straight lines can, on a given surface, pass either through a common center or on either side of it [see above]. . . . Acentral, independent straight lines are the first to possess a particular capacity that enables a certain parallel to be drawn between them and the “chromatic” colors, and distinguishes them from black and white. In particular, yellow and blue carry in themselves various tensions — the tensions of advance and retreat.

. . . Independent straight lines, especially of the acentral variety . . . are less bound up with the surface and seem on occasion to pierce it. These lines are at the furthest remove from the point that  burrows into the suface, since they in particular have abandoned the element of repose [present in horizontal and vertical lines].

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Here’s a conversation my Friend Steve Wylder and I had yesterday on Facebook. (Thanks, Steve, for permission to republish.)

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The basic tenet of Natural Law . . . is that we should treat others as we would like them to treat us, that we should not do to another what we would not want another to do to us. In other words, the Natural Law is simply that we should recognize in every other human being the same nature, the same needs, the same rights, the same destiny as in ourselves. The plainest summary of all the Natural Law is: to treat other men as if they were men. Not to act as if I alone were a man, and every other human were an animal or a piece of furniture.

- Thomas Merton, New Seeds of Contemplation, page 76.

This passage, which I discovered during a recent revisit to New Seeds, was the last thing I expected. Merton captures here better than I can the essence of natural law I learned first through Lincoln’s fixation on the Declaration’s equality clause.

Dear Governor McDonnell,

I read your letter of today to the University of Virginia’s Board of Visitors with some alarm. You suggest that the Board give little weight to opinions other than its own, and you remonstrate Board members for their leaks and vacillation. However, the Board has so far given no weight to the University’s constituencies – that’s been part of the problem – and the Board members’ leaks and vacillations have been two of the only things that may permit the Board to reverse itself and to save the University from a very dark future.

I’ll start with the Board’s treatment of others’ opinions. The board has already ignored the feelings and thoughts of every constituency imaginable – students, faculty, administrators, alumni (of whom I am one), and Virginia citizens (of whom I also am one) – in dismissing President Sullivan, and in doing so in such a high-handed manner. Should they continue to pay only lip service to any point of view but their own as you imply in the paragraph straddling the third page of your letter?

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Last year, Mitt Romney made Robert Bork the co-chair of his justice advisory committee. The appointment offers a window into Romney’s judicial philosophy and suggests that Romney would nominate people with Bork’s constitutional notions to the federal bench, including the Supreme Court.

Most commentary about Bork is the usual red-blue stuff. Conservatives generally like him for the same reasons liberals dislike him: he has conservative views on social issues, and he believes in expanding states’ rights. But can we get past his political beliefs, as important as they are, and look at his constitutional ones, too?

Bork’s constitutional beliefs are no secret. He sets them out in The Tempting of America, a bestselling book he published shortly after his failed Supreme Court nomination during the Reagan Administration.

Read the book: Bork doesn’t believe in inalienable rights. He doesn’t believe in self-evident truths. That should concern all Americans — conservatives, liberals, and moderates alike.

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Sam Heard, the author of one of my favorite Twitter feeds, very kindly put my Easter tweets into one blog post. You can read it here on his blog, praxymetry.

I published the original tweets over an eighty-hour stretch — one tweet an hour on the hour. Read in paragraphs now, the tweets show little deference to one another, each tweet too forceful to simply refine a previous sentence’s thought or to simply set up the next sentence’s idea. Some repeat a word or phrase as a means of refocusing the reader even though the word or phrase is now the subject of the previous sentence.

In other words, the tweets are not used to not competing in a marketplace of hundreds of such tweets, and they’re not ready to let their guard down.

But that’s the fun of reading the tweets in paragraph form, I think. How does reading tweets differ from reading paragraphs, all things (such as content) being equal?

I have been trying, though not online, to work my emerging political philosophy into some accessible whole, and this past weekend I tried Twitter. I’m not satisfied with how it turned out, but I enjoyed the process.

James Madison

Can a sermon tweet?

Probably not, but I presume to preach to American Christians every hour on the hour on Twitter (follow @slowreads) at the culmination of Holy Week.

My subject: self-government and human nature.

72 tweets beginning 12:00 EDT Good Friday morning.

Still time also to pre-disfollow!

I wrote my first letter to the editor before I was ten, and I’ve been writing them about every ten years since. Here’s my latest.  The Washington Post column I was responding to seems to be no longer on the paper’s web site or anywhere else on the Internet, for that matter.

Like my previous letters, this one was not published.

Dear Sir:

Mr. Brag Bowling [Civil War 150, “No Abolitionist He,” Mar. 4] offers the South’s rejection of the Corwin Amendment as evidence that it wasn’t fighting to preserve slavery but “for a higher purpose, their political independence.” (The 1861 Corwin Amendment would have prevented any future Constitutional amendment from allowing Congress to end slavery in any state.)

While many Southerners didn’t trust Northern promises to uphold slavery in states where it existed, the South seceded over the Republicans’ promise to stop slavery’s spread into the nation’s considerable western territories.  The territories had been the national slavery debate’s political focus from the time of the Northwest Ordinance (1787) to the Missouri Compromise (1820), the Wilmot Proviso (1847), the Compromise of 1850, the Kansas-Nebraska Act (1854), and Bleeding Kansas (1854 – 1858). One need only peruse Donald Reynolds‘s excellent book Editors Make War: Southern Newspapers in the Secession Crisis to get an idea of how quickly the South turned to secession as a result of the Republicans’ 1860 electoral success and their commitment to stop slavery’s spread.

I’m a Virginian who, like Mr. Bowling, had forefathers who fought for the Confederacy, but I cannot honor – much less reinvent – the Confederacy’s motive.

Reading this 1791 letter from Benjamin Banneker, the son of a former slave, to Secretary of State Thomas Jefferson makes me understand Jefferson better.  How could someone who penned the lines Banneker quoted and who received the letter Banneker wrote not be, as Jefferson’s enemy Hamilton kindly put it, “a man of sublimated and paradoxical imagination”?

During last night’s CNN-sponsored Republican presidential debate in South Carolina, Newt Gingrich alluded longingly, as he often does, to the Lincoln-Douglas debates. “I’d be quite happy to have a three-hour, Lincoln-Douglas-style debate with Barack Obama. I’d let him use a teleprompter. I’ll just rely on knowledge. We’ll do fine.”

Gingrich chafes under the modern debate format’s time constraints – not the aggregate time constraints: last night’s two-hour debate wasn’t that much shorter than the ones Lincoln and Douglas agreed to – but the time each candidate has to lay out his position before the next one speaks.

Little I’ve heard from Gingrich, though, suggests that he wishes to debate anything like the fundamental issues Lincoln and Douglas debated on seven occasions across Illinois in 1858. He just wants the uninterrupted 30-, 60-, and 90-minute time blocks the debaters enjoyed back then. (Lincoln and Douglas didn’t use moderators, either, and Gingrich always reserves his greatest invective for whoever’s unlucky enough to moderate the debates he participates in.)

Oddly, though, in the final minutes of last night’s debate, two of the candidates began to address an issue central to Lincoln – Douglas: what active role does the Declaration of Independence play in interpreting the Constitution and defining our federalism?

All four candidates were defending their pro-life bona fides.  Two of them – Rick Santorum and Ron Paul – began to draw distinctions between their views on how the right to abortion should end.  Short as the exchange was, it sketched out Lincoln’s and Douglas’s different approaches to the South’s right to slavery.

Paul wants to return abortion to a pre-Roe vs. Wade condition.  That is, he sees abortion as an act of violence and groups it with other acts of violence, such as murder, that the states have traditionally regulated through criminal codes and common law.

Santorum, on the other hand, believes that abortion is a federal and not a state issue.  Looking on his web site this morning, I found his list of a number of bills he sponsored or supported as a United States Senator that limited, or would have limited, abortion rights.

As I understand him, Santorum seeks not to simply overturn Roe v. Wade, which would leave the states free again to choose between criminalizing abortion or not. He seeks to outlaw abortion on a federal level as inconsistent with the Constitution as informed by the Declaration of Independence.

Here’s the actual exchange from this morning’s Chicago Sun-Times transcript:

MR. SANTORUM: Congressman Paul has a National Right to Life voting record of 50 percent, which is pretty much what Harry Reid’s National Right to Life voting record is. So for — to go out and say that, you know, you’re someone who stands up for the right to life, you repeatedly vote against bills on a federal level to promote the right to life, and you say that this is an individual personal decision or state decision. Life should be protected, and you should have the willingness to stand up on a federal level and any level of government and protect what our — excuse me — what our declaration protects, which is the right of our Creator to life, and that is a federal issue, not a state issue. (Applause.)

MR. KING: Quickly, sir.

REP. PAUL: Well, just — just for the record, I wasn’t even thinking about you when I was giving my statement.

MR. SANTORUM: (Off mic.)

REP. PAUL: So you are overly sensitive. (Laughter, cheers, applause.)

But it — but it is true that we have a disagreement on how we approach it. I follow what my understanding is of the Constitution, and it — it does allow for the states to deal with difficult problems. As a matter of fact, it allows the states to deal with almost all the problems, if you look at it. It is not given — these powers aren’t given to the Congress.

I see abortion as a violent act. All other violence is handled by the states: murder, burglary, violence. That’s a state issue. (Cheers, applause.) So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.

This is the solution. This is the solution, because if we would allow the states to write their laws, take away the jurisdiction by a majority vote in the Congress, you repeal Roe versus Wade overnight instead of waiting year after year to change the court system. (Cheers, applause.)

Two things to note in Santorum’s remarks.  First, he deliberately corrected himself when he started to describe an unborn child’s right to life as something our Constitution protects.  He settled instead on describing it as something our Declaration of Independence protects.  He therefore seems to stand with Lincoln, who saw the Declaration of Independence as the soul of the Constitution.  (Lincoln, of course, never addressed abortion, but Santorum’s approach seems to model Lincoln’s from a Constitutional standpoint.) Lincoln went so far as to say that the Constitution’s primary mission was to protect the self-evident truths in the Declaration.

Lincoln’s penchant for reading the Constitution as a mix of ideals and political compromises and for using the Declaration to distinguish between the two was the backbone of his position in the debates.  Slavery could not be extended to the territories because the Constitution’s compromise with slavery should be strictly construed. Lincoln, therefore, saw slavery’s existence as solely a federal issue.

Douglas saw slavery as a state issue.  His doctrine of popular sovereignty, which had been embedded into the Kansas-Nebraska Act of 1854, would permit each territory to decide whether to permit slavery within its borders. Commensurate with his position, Douglas did not read the Declaration has having any bearing on the slavery issue.

The second significant point from Santorum’s remarks is this: Santorum not only described abortion as a federal issue, but he also specifically stated that it was not a state issue.  I doubt the ramifications of that statement sunk deeply into the ears of the debate’s audience. Santorum wants to in some manner make abortion illegal on a federal and Constitutional level.  Apparently, under Santorum’s formulation, states would have as much ability to make abortion legal as they now have to make slavery legal under the Thirteenth Amendment. (And read Paul’s brief defense of a limited role of the federal government under our Constitution in his response to Santorum.  It’s almost precisely Douglas’s position concerning the federal government and slavery.)

If Santorum’s argument (as I understand it) advances, think how it may shape our view of federalism and state’s rights.  Would abortion rights advocates become our next generation of states rights advocates? Would the pro-life advocates split over the issue of federalism? (Santorum, interestingly, got “applause.” Paul got “cheers, applause.”)

I don’t think Roe v. Wade will survive another forty years. The way the right to abortion ends, though, is important to our federalism, and perhaps echoes of that larger, future debate may reach back to last night in South Carolina, as brief and as halting as the exchange about it was.

1.  This comment specifically pertains to the text “Now we are engaged” at the beginning of the Gettysburg Address’s second paragraph, and it generally pertains to the text of the first paragraph as well as to the text in the second paragraph’s first sentence.

2.  My comment addresses Lincoln’s rhetorical strategy of invoking history in a seemingly objective but ultimately selective fashion.  Lincoln’s address starts off as a chronology, and, indeed, through the first two paragraphs he puts the events in chronological order.  But he’s very selective about what events are included: the signing of the Declaration of Independence (“the Declaration”), the Civil War, the Battle of Gettysburg, and the dedication of the Gettysburg Battlefield.  My comment particularly concerns the first two events: the signing of the Declaration of Independence and the Civil War.

3.  Lincoln obscures how selective he is by three means.  First, his address is very short, so he can’t be expected to put the country’s entire history in it.  Second, he ties the events together rhetorically.  He relates the Civil War to the Declaration’s signing by introducing the war in the address as the means of testing whether the nation conceived, birthed, and dedicated at the signing can last.  He achieves this by defining the war in terms of the Declaration.   The nation defended is “so conceived and so dedicated.” Third, he puts the Declaration and the Civil War in a life-cycle metaphor that extends over the entire address and parallels that life implicitly with Jesus’ life.  The Gospel of Luke, which Lincoln alludes to in the first paragraph, moves from Jesus’ birth and childhood to his three-year ministry while leaving out everything in between.  Similarly, Lincoln moves from our nation’s conception, birth, and dedication to its by-then three-year-old Civil War the same way.  “. . .  brought forth . . . conceived in liberty, and dedicated . . . Now we are engaged . . .” Nothing is said of the Constitution or of any event from 1776 to 1861.  If one questions Lincoln’s selective history, Lincoln seems to suggest, one might as well question Luke’s.

4.  By recounting our nation’s history through limiting it only the Declaration and the Civil War, Lincoln clarifies by simplifying.  He simplifies our history to emphasize what he sees as riding on the Civil War’s outcome – the existence of a nation, or any nation, founded on the Declaration’s principles.  The simplification also serves to reinforce Lincoln’s belief that the nation came into being at the Declaration’s signing.  This position was important for Lincoln for two reasons.  First, it gave the propositions in the Declaration – particularly that all men are created equal – outsize influence in reading the Constitution.  Second, it reinforced his belief that the people, not the states, created the United States.  If states created the United States, then it would boost the South’s case that individuals have no inherent rights but only those rights that a government recognizes as due to a segment of its population.

A federal trial court judge’s clerk usually handles the prisoner petitions.  When I clerked, I would read the petitions, research them, and write an order for my judge to sign deciding the case.  Most of the research was in constitutional law because prison administrators have a lot of leeway in running their prisons with only their prisoners’ constitutional rights circumscribing their policies.

One day my judge refused to sign one of my drafts.  The inmate in question had petitioned the court for damages after debris had allegedly hit him in the head and injured him on a work site.  The prison administration was at fault, he said, because it hadn’t issued him a hard hat.  My order would have permitted the case to proceed to a hearing.

My judge smiled. “There’s no constitutional right to a hard hat,” he said.

One of my students earlier this month came up with a new inalienable right.  When I asked the class what rights he would add to (or specifically enumerate in) the Declaration of Independence or the U.S. Constitution, he included “the right to call someplace home.”

Consider the virtues of a right to call someplace home.  It’s vague, like due process or equal protection.  Everyone can pay it lip service.  A faction could read it as requiring the government to find housing for everyone.  Another faction could hold “English only” legislation unconstitutional since it infringes on a penumbral right to speak only the language of an immigrant’s homeland.  Others could weaken it, or perhaps use it in a way my student may not have intended, by discovering in it only the right to call the United States home, first holding that the government decides what “someplace” is for everyone.  Some may find the right only aspirational: we are a rather nomadic people as well as a melting pot, and perhaps we feel the need for place more acutely for our relative rootlessness.  And some may find it merely tautological.  After all, calling someplace home sounds quintessentially unalienable.

Anyway, it’s a step up from a constitutional amendment delineating the right to a hard hat.

Regional pride doesn’t make one side wish to re-prosecute the Civil War; philosophy does.  States’ rights in their politics and strict constructionist in their jurisprudence, Confederate apologists are apt to see the war’s sesquicentennial as a gift – as a megaphone for their argument in favor of a federalism based on the states’, and not the people’s, consent.

The Union side will not be as vocal.  The Unionists’ near-silence will not come from a victor’s apathy; indeed, Lincoln found the Union cause just as unarticulated as we find it today.  Slavery – the sole cause of the war – was argued vociferously by abolitionists and slaveholders alike, but Lincoln made clear that the North wasn’t fighting to free the slaves. Lincoln felt at all times that the Union cause would advance emancipation, but he never believed that the North was fighting to accomplish emancipation, as much as he favored it. The North fought to preserve the Union.

In this week’s New Yorker, Adam Gopnick reports on the results of a recent poll demonstrating New Yorkers’ ignorance about the Union statues and memorials in their midst.  He argues that the ignorance is indicative of the misconceptions over the war’s cause and aims perpetuated, at least in the first instance, by Confederate sympathizers.

While accurate in other respects, Gopnick’s The Talk of the Town essay implies that the Union cause did not long precede the Civil War.  “And Union Square is confidently identified [by those polled] as being named for the Union cause when in fact its name long predates the war.”

The Union cause, like the Confederacy’s, was based on a philosophical argument.  The Union cause is the cause of self-government, as Lincoln rightly pointed out in his Gettysburg Address and as Hamilton rightly pointed out threescore-and-some-odd years earlier in his preface to the Federalist.  Can a people govern themselves? Calhoun, who provided the philosophical framework for the South’s secessionist movement, thought mankind in general was too benighted to be trusted with government.  People weren’t born with rights, Calhoun believed; a race or nationality of people had to earn the right to govern themselves.  Madison’s view of man, on the other hand, while it was as dark as Dostoevsky’s, was based also on a hope as bright as Dostoevsky’s – a hope springing from natural law’s notion of the divine mark on, or spark in, human nature.

The Union cause is based neither on strict adherence to the Constitution’s base compromises, which is the heart of today’s strict constructionism, nor on a rejection of the Constitution as a racist document, which is the heart of today’s “living constitution.”  The Union cause was based on the values of the Declaration protected by the Constitution – Lincoln’s “apples of gold in pictures of silver.”  The Union cause was the spread of liberty and self-government.  Gopnick correctly points out that “The world saw the Union cause as a promissory note, to use Dr. King’s image, of a republican movement yet to be fully cashed.”

Would that the Union cause would be advanced with as much voice and interest as that employed by the states’ rights advocates this sesquicentennial.  It isn’t likely, but Gopnick’s thoughtful and inspiring essay this week is a start.

“But pray, sir, why must I not teach the young gentlemen?”

“Because, sir, teaching young gentlemen has a dismal effect upon the soul. It exemplifies the badness of established, artificial authority. The pedagogue has almost absolute authority over his pupils: he often beats them and insensibly he loses the sense of respect due to them as fellow human beings. He does them harm, but the harm they do him is far greater. He may easily become the all-knowing tyrant, always right, always virtuous; in any event he perpetually associates with his inferiors, the king of his company; and in a surprisingly short time alas this brands him with the mark of Cain. Have you ever known a schoolmaster fit to associate with grown men? The Dear knows I never have. They are most horribly warped indeed. Yet curiously enough this does not seem to apply to tutors: perhaps it is scarcely possible to lay the prima donna to an audience of one. Fathers, on the other hand -”

– Dialog between Mr. Martin and Stephen Maturin on page 92 of The Ionian Mission, by Patrick O’Brian

I’ve logged hundreds of hours over twenty novels (most of them two times over) enjoying your company, Dr. Maturin. It is difficult to accept that, all the while, you have seen me as unfit to associate with grown men. I appear to myself now like one of the bores in the wardroom with whom you are trapped for months on end.

I wasn’t always a schoolteacher, Stephen; is there anything to be said for that? In fact, I held your opinion of schoolteachers for years until I was brought by the lee fifteen minutes into my teaching career.

I made a grammatical error in front of my first class. Some verb I used didn’t agree in number with one of those indefinite pronouns that can go either way; I don’t remember the exact details.

Some smart girl called me on it in front of the whole class, and I thought it was a good time to introduce my teaching philosophy.

“Hey, I’m new to teaching this. I’m going to make some mistakes. I want you to feel free to point them out to me, but I expect you to take it well when I may have to correct your grammar on occasion. In other words, I’m going to model the humility and the excitement about learning that I hope I’ll find in you guys.”

You get the idea, Stephen. I deliberately shed the image of the all-knowing and infallible teacher, and I was up there modeling learning. You probably would have approved.

Anyway, a few kids on that first class of that first day exchanged sneers, and, if I had had more than fifteen minutes’ teaching experience, I’d have known that I was in deep trouble.

For the rest of the year, that class refused to believe me when I taught grammar. They called out objections when I told them that the past participle of “drink” is “drunk.” They looked at me with exaggerated incredulity when I explained that one might end a sentence with a preposition with impunity. They didn’t even believe me when I insisted that “grammar” ends with “ar” and not “er.” Everything I taught in the grammar line was suspect.

During that year, I read an entire book on grammar and scoured two grammar textbooks I happened to have around. I tried to explain to my students that rudimentary English grammar isn’t rocket science. I’ve got a doctorate, admittedly not in English grammar. Kids, I can learn this in a few weeks!

It was no good, Stephen. Kids – especially kids in that unforgiving stage of life known as ninth grade – want infallible teachers.

I finally picked up the signals. The following year, I admitted to no mistakes until Christmas. I learned how to deflect unwanted challenges with a slight smile, with a turn of the lip, or by just moving on. I learned to answer a hard question with, “What do you think?” delivered with a knowing look. I sent kids to the grammar text or the dictionary to answer their own questions. I’m not at the point where I can make up answers to questions I don’t know and then insist on my answers long after some smarty-pants proves me wrong. But I could get there. I could become the all-knowing tyrant, always right, always virtuous. I could become “horribly warped indeed.” Sure, I could become the pedagogue of the world, Stephen.

But come to think of it, doctor, you never commanded anything except your sick ward and an occasional surgeon’s mate. What do you know about classroom management? You are to consider how you react given the slightest authority – how imperiously you often treat your patients.

Consider Jack, for all love. Jack’s crew doesn’t want him to be just another mate, someone to learn the ropes with them. Despite his never admitting mistakes, Jack almost always commands happy ships with only occasional floggings. It’s lonely at the top, Jack and I can tell you.

Face it, doctor. Infallibility may be part of good classroom management until kids reach the age of understanding, which I now think is sometime after ninth grade.

“He does them harm, but the harm they do him is far greater.” What a fellow you are, Stephen!

Posted August 2006

Bill and I were kind of chuckling via email about the current covers of Newsweek and Time, the former reflecting my fixation with comparing Obama and Lincoln, and the latter picking up on Bill’s suggestion that our times may eventually cause a president to consider policies as drastic as some of Franklin Roosevelt’s.  (Bill was pointing specifically to “the 1933 Executive Order 6102, which required everyone to sell their gold to the government.”)

Bill expressed his surprise at Newsweek‘s claim that the lines quoted by Obama last week at Grant Park taken from Lincoln’s First Inaugural Address (“We are not enemies, but friends. . . . “) weren’t Lincoln’s but William Seward’s.  That didn’t ring true, so I reread my history and found that Newsweek had oversimplified things.

The words are Lincoln’s, but he was working off of a revision sent to him by Seward, Lioncoln’s chief rival for the Republican nomination the year before and his choice for Secretary of State.   Seward’s revision: “I close. We are not we must not be aliens or enemies but fellow countrymen and brethren.” Lincoln’s revision of Seward’s revision: “I am loth to close. We are not enemies, but friends. We must not be enemies.”

Lincoln had sent his first draft to Seward originally, and Seward worked long and hard to take the bellicosity out of it.   Lincoln accepted Seward’s approach wholeheartedly.   Their collaboration on the speech produced one of the finest perorations in history.   Here’s Seward’s revised ending:

I close. We are not we must not be aliens or enemies but fellow countrymen and brethren. Although passion has strained our bonds of affection too hardly they must not, I am sure they will not be broken. The mystic chords which proceeding form so many battle fields and so many patriot graves pass through all the hearts and all the hearths in this broad continent of ours will yet again harmonize in their ancient music when breathed upon by the guardian angel of the nation.

Here’s Lincoln’s revision of Seward’s revision:

I am loth to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

And that was the beginning of a beautiful relationship, both political and personal, between the two men.   I think it’s also a testimony to the power of revision and of collaborative writing.

(I found this information in Doris Kearns Goodwin’s Team of Rivals: The Political Genius of Abraham Lincoln, pages 324 – 326.)

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Posted November 17, 2008.

President-Elect Obama started and ended his train trip to Washington Saturday, emulating the last leg of President-Elect Lincoln’s train trip to Washington.  Most Civil War era reenactors I know don’t care too much for Lincoln, but this guy Obama channels him, even to the extent of choking up on the day he left Illinois for Washington.

Lincoln, for his part, practically channeled Christ at Gethsemani when he boarded his train and left Springfield for Washington.  Standing on the back platform of the train’s rear passenger car, “his voice choked with feeling” according to Harold Holzer in his book Lincoln: President-Elect, Lincoln could hardly get out his masterful farewell address to the town’s citizens:

To-day I leave you; I go to assume a task more difficult than that which devolved upon General Washington.  Unless the great God who assisted him, shall be with and aid me, I must fail.  But if the same omniscient mind, and Almighty arm that directed and protected him, shall guide and support me, I shall not fail . . .  (299)

Lincoln’s law partner, Billy Herndon, testified to Lincoln’s conviction at the time he left Springfield that he would never return:

Not only was he sorrowful at the prospect of leaving home, he was convinced, he whispered, that he would never return alive.  Herndon implored him to abandon such thoughts.  It was not “in keeping,” he argued, “with the popular ideal of a President.”

“But,” Lincoln replied icily before saying goodbye, “it is in keeping with my philosophy.” (Holzer 294)

* * *

From that time Jesus began to make it clear to his disciples that he had to go to Jerusalem, and endure great suffering at the hands of the elders, chief priests, and scribes; to be put to death, and to be raised again on the third day.

At this Peter took hold of him and began to rebuke him: ‘Heaven forbid!’ he said. ‘No, Lord, this shall never happen to you.’

Then Jesus turned and said to Peter, ‘Out of my sight, Satan; you are a stumbling block to me. You think as men think, not as God thinks.’  (Matthew 16:21-23, REB)

* * *
What “philosophy” would have lead Lincoln to believe that he wouldn’t make it back to Springfield alive?  Was it his depression?  Was it his fatalism, that underground, life-giving river that caused him to quote morose poetry and helped him to make some sense out of his children’s early deaths?  I think Lincoln’s fatalism may have led to his premonition that he wouldn’t return to Springfield, but I think his fatalism in this instance was also reinforcing an important aspect of his political philosophy.

It has been fun reading Lincoln: President-Elect, Holzer’s almost-day-by-day account of Lincoln’s four months as president-elect, during Obama’s mercifully shorter term as president-elect.   Despite Obama’s choking up and his train trip, and despite the two visits he has already made to the Lincoln Memorial in the short time since his move here last week, the comparison of the two presidents-elect that the timing of my reading has led me into has brought to mind more of the differences between Obama and his times, on the one hand, and Lincoln and his times, on the other. Polls show, for instance, that the vast majority of Americans are upbeat about what Obama may accomplish, while the public, North and South, was generally pessimistic about Lincoln’s chances of holding the Union together against the steady stream of succeeding Southern states.  Obama has turned down several offers to put our economic downturn on a par with the Great Depression, while Lincoln, as quoted above, claimed that his job would be more difficult than Washington’s.

The two train trips served vastly different purposes, too.  Obama wanted to honor Lincoln, his chief political inspiration and the Great Emancipator whose work, in one sense, has reached another milestone with the election of the first African-American President.  Lincoln, though, wanted to introduce himself to Northern states who had seen little or nothing of him before.  He also used frequent opportunities for speeches the trip afforded him to try out themes that would make their way into his Inaugural Address.

Most of those speeches were poorly thought through, and a few got Lincoln in some trouble.  The wording of one Ohio speech was overly lawyerly and unduly provocative to the South, confirming, on its face, some of the South’s worst fears by suggesting that Lincoln might go beyond his oft-stated position of upholding slavery where it existed and of disallowing its further expansion.  The next day, he was too conciliatory, agitating some of his Republican allies in the North.

Lincoln seemed to hit his stride towards the end of his train trip, though, particularly when he got personal and when he referred to George Washington, as he had done when he had left Springfield. Lincoln did both while speaking at Trenton’s state house, which was across the street from where Washington was bivouacked during his victory against the English.  After referring to Washington’s struggle there, Lincoln said:

I am exceedingly anxious that this Union, the Constitution, and the liberties of the people shall be perpetuated in accordance with the original idea for which that struggle was made, and I shall be most happy indeed if I shall be an humble instrument in the hands of the Almighty, and of this his almost chosen people, for perpetuating the object of that great struggle. (Holzer 373)

Holzer points out that Lincoln was onto something in Trenton that he would return to in some of his later, greater orations: a “civil religion” that might help Americans connect the impending struggle for Union with the Founders’ initial struggle for independence.  This connection figures largely, of course, in the Gettysburg Address.

Lincoln was saying, Holzer believes, that Americans perhaps “were still but ‘almost chosen people’ . . . because they had not yet endured the pain required to sanctify what [God] had granted them.  The test, Lincoln implied, was yet to come” (374).

How much did Lincoln see himself as a type of Moses or Christ, a deliverer or a redeemer who would lead the United States towards the promise prophesied by the Founding Fathers?  A lot, I think.  But Lincoln’s belief had less to do with a Messiah complex (something Obama has been unfairly accused as having, too) and more to do with an aspect of his political theory rooted in Aristotle and in the Federalist Papers.

This salvific aspect of Lincoln’s political theory is set out in a speech he gave in 1838 before the Young Men’s Lyceum of Springfield.  By “civil religion,” Holzer was referring to Lincoln’s advocacy in that speech for a “political religion” to counteract mob violence that had been recently committed locally and in neighboring states.  In his essay “The Teaching Concerning Political Salvation,” Chapter 9 in his book Crisis of the House Divided, Harry V. Jaffa uses Lincoln’s Lyceum speech to show that Lincoln didn’t believe that the American people had demonstrated the capacity to govern themselves (209).  Lincoln spoke at Lyceum of a coming crisis that would threaten American democracy and test its capacity for self-governance.  A “towering genius” along the lines of Alexander or Ceasar had yet to test the young republic, a genius who, with ambition and superior talents, would rise to leadership and eventually usurp republican democracy:

[The towering genius] thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freeman. (210)

Such a figure, according to Aristotle, would have to be ostracized in order to save the community (214).

Laying the philosophical groundwork for his Springfield departure speech twenty-three years later, Lincoln at Lyceum suggested that the Founders’ role was minimal compared with the leader who would have to take America through this crisis:

That our government should have been maintained in its original form from its establishment until now, is not much to be wondered at.  It had many props to support it through that period, which now are decayed, and crumbled away. (205)

The Founders’ danger was outside – England – but the future danger would be internal, since the towering genius would come from among us.  Lincoln believed that America had learned through Jefferson to assert its rights, but that it had not yet learned that a majority – as central as majority rule is in a democracy – could become as despotic as Caesar.  Jaffa states:

The people must be taught, as Jefferson taught them, to assert their rights.  But they had not yet learned to respect what they had asserted.  The people had not yet learned to be submissive in the presence of their own dignity. (225)

If Americans were to accept Stephen Douglas’s doctrine of popular sovereignty, for instance – the doctrine that left to the legislatures of individual territories the decision of whether slavery would be permitted there – the American people collectively would become as Caesar:

The doctrine of popular sovereignty . . . was a base parody of the principle of popular rights.  It implied that whatever the people wanted they had a right to, instead of warning the people that the rights which they might assert against all the kings and princes of the old world were rights which they must first respect themselves.  (224)

The Kansas-Nebraska Act, popular soverignty, and the Dred Scott decisiton demonstrated that America’s self-governance at the time of the Civil War was fundamentally flawed, and Lincoln believed America’s self-governance required a kind of political redemption.

Political redemption followed from Lincoln’s concept of political religion, a concept that had at least two levels for Lincoln.  Lincoln’s concept of political religion was – on the surface, which is an important place in politics – an attempt to unite the two main, antagonistic strands of American “thought and conviction”: the “Puritan religious tradition” and the Enlightenment.  On the Enlightenment side, he agreed with Jefferson’s position on the primacy of the Declaration of Independence’s proposition that “all men are created equal.”  On the religious side, he spoke in biblical (and, yes, in Platonic terms as well) about birth and rebirth, as he did in the Gettysburg Address.  In this deeper sense of a political and religious unity, Lincoln expanded Jefferson’s notion of “all men are created equal” beyond a compact of citizens at any given time:

The “people” is no longer conceived in the Gettysburg Address, as it is in the Declaration of Independence, as a contractual union of individuals existing in a present; it is as well a union with ancestors and with posterity: it is organic and sacramental. (228)

Leaning on Plato, The Federalist suggests that, because we are not a nation of philosophers for which an appeal to “enlightened reason” alone is sufficient, appeal should be made to “examples which fortify opinion [that] are ancient as well as numerous” (230).  According to Jaffa, “A regard for ancient opinions is a peculiar necessity and a peculiar difficulty for free popular government.”  Lincoln provides these ancient opinions by adding to the Declaration’s compact.

In this political religion, the Founders provide the ancient opinion and, eventually, God provides redemption through the Civil War.  The peroration of Lincoln’s First Inaugural Address focuses on our connection with ancient opinion, appealing to “the mystic chords of memory, stretching from every battlefield and patriot grave to every living heart.”  A full third of Lincoln’s earlier Cooper Union speech is a refutation of the Supreme Court’s Dred Scott decision through a masterly historical argument that the Founders would never have countenanced the extension of slavery. Lincoln’s Second Inaugural, however, focuses on redemption, finding religious significance in the war’s protracted horror:

Yet, if God wills that [the war] continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, “The judgments of the Lord are true and righteous altogether.”

To be precise, it is Lincoln’s well-developed political religion and not Christianity or Judiasm that he espoused here, though he was relying on his audience’s strong connection with biblical concepts and quotes in selling it.

All this is muddled, and not reinforced, by Lincoln’s premonition that he wouldn’t return to Springfield alive and by his assassination on Good Friday of 1865.  As Allen C. Guelzo points out in his book Abraham Lincoln: Redeemer President, clergymen all over the country rewrote their Easter sermons the day they heard of Lincoln’s death.  “. . . [A]lmost irresistably, [Lincoln] was compared to Jesus Christ.  Had not Lincoln come to set his people free?  Had he not entered into Richmond in the same triumphant spirit, close to Palm Sunday, that Jesus had entered Jerusalem?  Had he not been slain on Good Friday?”  (440) (Never mind that he was shot laughing in a theater – not a particularly martyrish venue that many clergymen of Lincoln’s day had condemned from the pulpit.)  As the days and years went by following Lincoln’s death, the circumstances of his death seemed to put his religion in controversy.  Christians and the more secular segment of the public each tried to appropriate Lincoln as one of their own.  I think the latter had the better case, but my point is that the political religion that Lincoln had fostered fell apart again, at least on the outside; Jaffa’s “two main currents of thought and conviction” – the Puritan’s spiritual descendents and the Enlightenment’s spiritual descendents, if you will – went back to their separate corners and were both trying to tug Lincoln’s legacy along with them.

I guess that’s all right.  If, after reading Jaffa, whom I do little justice to here, you find that he works for you as he works for me, then I guess you’re just glad that it was safe after the war for those two fighters to have resumed their cyclical struggle.  By that time, we Americans had become God’s chosen people, after all, according to Lincoln’s political religion – not through Lincoln’s death, but through the mighty scourge of Civil War.

But I wonder if Obama feels as if America’s democracy has been entirely purged of its collective towering genius, that is, of its tendency to make a minority’s fundamental rights the subject of a majority’s will.  Our heritage of slavery demonstrates, I think, that American democracy may still struggle with submitting to the presence of its own dignity.

Posted January 19, 2009.

During this week’s Nevada senatorial debate, which I saw on C-SPAN, Sen. Harry Reid gestured to his breast pocket, claiming to carry a copy of the U.S. Constitution there. The late Sen. Robert Byrd used to do that, too. What are these senators asking us to understand about them?

And how about these Tea Party candidates who quote famous phrases from the Consitiution and other founding documents?  For her part, Mrs. Sharron Angle, Senator Reid’s opponent, referred to the Constitution and quoted a phrase from Lincoln’s Gettysburg Address a few times during the debate.  What did she mean by all that?

I mean, I get the politics of it, but what are they saying when they declare their adherence to the Constitution?

I believe Lincoln upheld his oath to preserve, protect, and defend the Constitution, but I doubt that he kept a copy of the Constitution in his jacket pocket (or even in his file cabinet of a hat). If he were around today to employ our brand of political theater, I think he might have produced a copy of the Declaration of Independence on the hustings instead of the Constitution. Lincoln thought that the Constitution, at its most noble level, was designed to preserve, protect, and defend the truths of the Declaration.

Lincoln’s understanding of how the Declaration and the Constitution operated together made the latter morally enforceable even in an era when its provisions enforced slavery. His approach amounted to a moderate constitutional philosophy that we’ve needed for some time.

Lincoln’s approach to slavery reflected this constitutional moderation. Lincoln was no abolitionist: he agreed with the abolitionists’ ultimate goal – the abolition of slavery – but he disagreed with their means – the overthrow of the Constitution that protected slavery. Lincoln believed that the Declaration’s truths were protected by the Constitution’s mean compromises, and he described the relationship between the Declaration’s truths and the Constitution’s compromises in a biblical metaphor, quoting this passage from Proverbs: “A word fitly spoken is like apples of gold in pictures of silver.” For Lincoln, the Declaration’s truths are the apples and the Constitution is the picture:

The assertion of that principle [“liberty for all”], at that time, was the word, “fitly spoken” which has proved an “apple of gold” to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture.

One must preserve, protect, and defend the picture of silver – the Constitution – not for its own sake but for the golden apples’ sake. The South sought to keep the picture without the apples. The abolitionists sought to keep the apples without the picture. Lincoln’s moderation would preserve both the apples and the picture long enough to amend the picture to become a fuller expression of the apples.

Today’s “strict constructionist” and “original intent” jurists draw from the antebellum South’s approach and read the Declaration out of the Constitution. Without the Declaration to guide them, conservative justices often twist the Constitution as much as any “living constitution” liberal justice would. In his book The Tempting of America, for instance, Judge Robert Bork asserts that the Constitution never recognized a slaveholder’s right to own slaves. This contorted view is a product of Judge Bork’s confusion of the picture of silver for the apples of gold. Why not, with Lincoln, see the Constitution’s protection of slavery as “an anomaly, a necessary evil entailed upon the Constitution, but not flowing from – or consistent with – its genuine principles”? (Harry Jaffa’s words in “’Original Intentions’ of the Framers,” 10 University of Puget Sound L. Rev. 351, 364.)

If today’s liberal justices’ “living constitution” sometimes rewrites the Constitution’s provisions, at least it does so based on a perceived need for some truth or some set of values to animate the Constitution’s provisions. “There are no apples of gold here,” the liberal side of the bench says, in essence. “Slavery has made the Constitution, as written, without moral truth, so each generation must find its own values in the Constitution’s words. Each generation must paint its own apples in this picture of silver.”

But the conservative side of the bench is less honest and, in the long run, more destructive. “The picture of silver is the apples of gold. The apples exist only by virtue of being in the picture,” the conservatives say, in essence. Consider the following relativist statements made over the last forty years or so.

On abortion:

It just seems to me incompatible with democratic theory that it’s good and right for the state to do something that the majority of the people do not want done. Once you adopt democratic theory, it seems to me, you accept that proposition. If the people, for example, want abortion the state should permit abortion. If the people do not want it, the state should be able to prohibit it.1

On minority rights:

The whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.2

On the alternative to liberal justices’ “living constitution”:

If [a democratic] society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone’s idea of natural justice, but instead simply because they have been incorporated in a constitution by a people.3

On the source of moral values in a democratic society:

There is no way to decide these questions [placing moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails.4

The first statement sanctions abortion by virtue of a state’s majority’s support of it. The second statement sanctions any minority’s rights only by virtue of the majority’s determination that such rights should exist. The third statement asserts that any individual liberties found in the Constitution acquire “moral rightness or goodness” not from being a priori right or good but by virtue of their inclusion in that constitution. The final statement asserts that, because the United States cannot agree on what is moral, then, unless the Constitution addresses the point, the “majority morality prevails.”

These statements, I think, should make a social conservative cringe. Yet these writers are not known liberals. In fact, they are all conservative judges or justices. Justice Antonin Scalia penned the first two statements, former Chief Justice William Rehnquist the third, and Judge Robert Bork the fourth. The statements are not taken out of context, and they fairly represent the writers’ notions of constitutional law.

Strict constructionists treat the Constitution as if it were a statute. But the Constitution has a finite set of truths that emanate from it and assist us in understanding it. The conservative “strict construction” applies a kind of moral blindness to its constitutional adjudications. Lady Justice is blindfolded, but she is blind to prejudice and favoritism, not to constitutional truths. But for these conservatives and for most conservative justices today, truth is only a product of the constitution. The picture of silver creates the apples of gold; it doesn’t preserve or protect them.

Rehnquist and his fellow conservative justices are this generation’s version of legal positivists – theorists who believe that no law (other than, for the religious legal positivist, God’s Word) is higher than laws promulgated by government, whether that government is a king or a legislature. In “strictly construing” the Constitution, they leave out the moral truths that the founders wove into it. This strict construction also does not allow truth to distinguish between a constitutional clause based directly on a founding principle and one based on a compromise necessary to secure ratification.

By construing a moral document without the benefit of moral truth, conservative legal positivists contribute to the moral relativism they claim to abhor:

The tendency of contemporary Western societies to adopt legal positivism is perhaps linked to the widespread acceptance of relativism, which is grounded in a general skepticism that there is something like a universal “moral truth” that can be known. From this view, moral concepts are relative to cultures and even individuals. Indeed, cultural elites often believe that relativism is the most secure foundation for pluralistic and democratic values, since differing perspectives can coexist without seeking to impose their truths on others when everyone accepts that there is no truth to which society ought to confirm. Yet, the experience of totalitarianism in both its communist and National Socialist form in the twentieth century has led in some circles to a renewed appreciation of the need for some form of natural law to undergird positive law. When the Nuremberg trials convened, a problem immediately arose: the mass extermination of millions of human beings, of which the Nazi leaders were accused, was in fact legal according to the positive laws of Germany and its duly constituted legal authority.5

Indeed, Harry Jaffa, the conservative political theorist who wrote the seminal Crisis of the House Divided and founded the Claremont Institute, wonders if Rehnquist, in light of his legal philosophy, could see any “moral reason why any one set of laws should be adopted over any other, for example, the American Constitution over the constitution of the Third Reich.”6

The founders, though, believed in certain “immutable truths” – truths that needed no constitution or majority of justices to affirm their existence. The Declaration famously enumerates some of these truths.  Those truths gave the constitution its moral force. Those truths also gave the constitution its flexibility – a trait poorly mimicked by today’s “living constitution” doctrine but completely missing from the conservatives’ truth-starved, literal approach to the Constitution.

The Declaration’s apples of gold are its self-evident truths. To deny the possibility of self-evident truths is to adopt the essence of nihilism, whether that denial stems from a fundamentalist (John Calvin), historicist (John C. Calhoun, Alexander Stephens, the German National Socialists), or mechanistic (Thomas Hobbes) understanding of human nature. I agree with Edward J. Erler’s definition of nihilism as well as the connection he perceives between nihilism and tyranny:

The triumph of moral relativism grounded in nihilism will inevitably lead to tyranny. Nihilism is the belief that the metaphysical freedom of man is merely a delusion. . . . It is a very short step indeed from the denial of man’s metaphysical freedom to the denial of his moral and political freedom.7

I’m not sure Lincoln would even bother carrying around the Declaration today, since he called it a “merely revolutionary document” that itself carried “an abstract truth, applicable to all men at all times.”  That’s the heart of it: the self-evident truths.

So I’m not sure, either, what a politician means by carrying the Constitution close to his heart. I’d just like to know if his concept of the Constitution has a heart, and the original one at that.

Footnotes:

Bill at Shadows and Symbols suggested to me in a comment to my post “A Pocket Constitution” last year that I might flesh out my emerging understanding of natural law with suggestions on how it might affect the adjudication of specific constitutional cases. I’m not qualified to make those suggestions, but Amherst professor Hadley Arkes is. As if on cue, Arkes recently published Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge 2010), a rewarding and frustrating collection of essays about a few lines of Supreme Court cases, some of which have and some of which have not been decided on natural law principles.

Arkes’s book broadened my understanding of what some of the Founding generation of writers and jurists meant by natural law principles. He catches Hamilton describing the principle that later statutes are presumed to supersede earlier ones where they conflict as “not derived from any positive law, but from the nature and reason of the thing.” (25, quoting Federalist No. 78.) Hamilton also justifies as anchored in “the general principles of law and reason” the rule that legislatures cannot overturn a verdict but may “prescribe a new rule for future cases.” (Id., quoting Federalist No. 81). Judges are often “doing natural law,” Arkes says, when they apply common principles of statutory construction, and he quotes Blackstone, who heavily influenced the Founders, as having recourse to “the law of nature and reason.” In other words, legal theorists of the Founders’ generation understood many common rules of statutory construction as well as the rule against ex post facto laws as examples of natural law.

That generation also tried to ground their constitutional opinions in natural law principles, sometimes doing so when recourse to the Constitution’s language, from a modern jurisprudential viewpoint, would have been enough. Arkes points out that, in Fletcher v. Peck, the Supreme Court could have struck down an ex post facto law by recourse to the Contracts Clause, but Chief Justice John Marshall “did something far more elegant: He sought to show that the Contracts Clause could be drawn deductively from the principle on ex post facto laws” (27, emphasis original). A concurring opinion in Fletcher v. Peck by Justice Johnson declined to even consider application of the Contracts Clause. “But I do it on a general principle, on the reason and nature of things: a principle which will impose laws even on the Deity,” Johnson wrote. Arkes argues – convincingly, I think – that reasoning from first principles is an invaluable and lost art.

Supreme Court justices today, especially the more conservative ones, wish to ground their constitutional decisions on Constitutional language. The practice is commendable and to some extent axiomatic, but such an approach, if it wholly displaces grounding decisions on natural law principles, is also dangerous in the long run. Courts construe statutory provisions by looking first for their plain meaning in the context of the entire statute, but courts should not treat constitutions as statutes, Arkes argues. Unlike statutes, constitutions are not the creation of positive law:

As Locke put it in his Second Treatise, “the constitution of the legislative being the original and supreme act of the society,” it had to be “antecedent to all positive laws.” The power to make the positive law is defined by the Constitution, but the Constitution itself cannot spring then from the positive law (24).

The danger is this: if judges have recourse to only Constitutional provisions, they will think that the Constitution is the source of our liberties. The Constitution, though, at its highest level is but an expression of the liberties we were born with, not as Americans but as men.

The debate over a bill of rights during the Constitution’s larger ratification debate demonstrates the prevalence of the natural law position at that time. The Federalists’ chief argument against including a bill of rights in the Constitution, Arkes reminds us, is that such an enumeration would bring down important natural rights to the level of positive law. Rulers seeking to infringe a right so enumerated would have a ready target in specific language, and rulers seeking to infringe a right not enumerated would argue that, had the people wished to recognize such a right, they would have included it in the Constitution’s bill of rights (25 – 26).

Arkes spends half of his essays examining modern constitutional jurisprudence, particularly the law regarding privacy and prior restraint. The chapter on privacy describes how beholden Griswold and Roe are to the universally derided Lochner v. New York case (1905) in which a laissez faire Supreme Court struck down a statute if felt was overly zealous in regulating business. Lochner established substantive due process – the same due process that the Roe court used to strike down a state statute protecting unborn children. The chapter is full of irony, starting with the idea that Griswold and Roe, which “mark the center, the core, of liberal jurisprudence in our own time,” are dependent on the extremely conservative and out-of-fashion Lochner holding. The chapter offers many ancillary ironies:

Bork referred to judges who were willing to strike down legislation – or in effect “make up” the Constitution – because they did not “like” the result. Whether it was intentional or merely reflexive, Bork was backing into the language of positivism – the language that reduced reasoned judgments to “emotivism,” to matters essentially of “likes” and “dislikes.” (81)

Justice Hugo Black, Franklin Roosevelt’s first appointment to the Supreme Court, [was] the most emphatic, unreconstructed, opponent of “substantive due” process. He was also, therefore, the most implacable opponent of natural law. (82) . . . He was a vigorous dissenter in the Griswold case [based on his objection to substantive due process]. (83)

In our own day, Bork and William Rehnquist have come closer than any other judges in sharing Hugo Black’s perspective, which is why it may be aptly said that Rehnquist and Bork might have been the last judges of the New Deal. (82)

. . . the argument for abortion requires an appeal to what may be called the “logic of natural rights”: It requires an appeal to an understanding of rights that does not depend on the positive law made by majorities voting in legislatures or even the positive law of the Constitution. (84)

One gets the feeling, after reading how Lochner intersects with Griswold and Roe, that Arkes believes the entire mess could have been avoided if both sides accepted the Founders’ principles of natural law.

I found the book’s most helpful essay as chapter two, “Natural Law – Again, Ever,” in which Arkes sets out how we moderns and postmoderns can discern a natural law when we see it. Arkes draws principally from Aristotle, Aquinas, and Kant to define moral laws as “the laws of reason, the canons of logic, that command our judgment in the domain of freedom.” Laws of reason are “anchored in the law of contradiction” (65). They are based on deduction and not observation or induction, and are laws because “they have the force of being inescapably true” (64). For instance, if a judge declares that he would not pass on moral questions in the absence of a consensus, Arkes would argue that the judge’s declaration amounts to a moral judgment made without such a consensus. The judge’s approach would, therefore, run afoul of the law of contradiction.

The logic of morals (for morality – that is, a proper “understanding of things that [are] higher and lower in human nature” (44) – is at the heart of natural law) has two fundamental implications: “that moral judgments cast upon others make sense only if we can assume that people were free to form their own acts; that we may not hold people blameworthy or responsible for acts they were powerless to affect” (65 – 66). Racial discrimination violates not just positive law today but first principles always because it presumes that a member of the race in question is morally inferior to the rest of humanity and therefore is not responsible for his or her actions.

Arkes distinguishes natural law from “regularities in nature, or [from] generalizations about the behavior of humans over time, drawn from the checkered history of our species” (44). Notions such as “survival of the fittest” and a fish’s propensity to swim don’t amount to natural rights, therefore. Much or all of natural law may be summarized in “all men are created equal” since it acknowledges traits in mankind that are associated with God and other traits that are associated with beasts. A moral awareness takes in ways in which we are like God and ways in which we are like beasts. Natural law depends on a distinction between man and beasts because only man can “give reasons over matters of right and wrong.” Natural law does not merely manage mankind by managing what is worst about it. It appeals instead to “the better angels of our nature,” to paraphrase Lincoln (45) – if not to any angels in us, then at least to the part of us that can recognize a moral argument to our disadvantage that does not violate the law of contradiction.

° ° °

I mentioned at the outset that Constitutional Illusions is in some sense a frustrating collection of essays. Besides the simplistic analogies that sometimes introduce or frame his chapters and the confusing lack of transitions from topic sentences to proof in many of the paragraphs making up his arguments, the book’s frequent, gratuitous championing of modern American conservatism and debunking of liberalism is a distraction from and sometimes a contradiction to its natural law thesis. Arkes’s sense of outrage over how the press handled Richard Nixon, for instance, dominates the final chapter that he entitles “Conclusion and Afterword.” He concludes his conclusion by saying, “But my purpose here is not to make a new defense of Richard Nixon in Watergate,” when no other reading of the chapter but the contrary is possible.

All of which begs the question: why is the argument over natural law almost entirely within conservative circles? As I’ve written elsewhere, most American conservative leaders on the bench and elsewhere refute natural law, and the Tea Party seems ready to join in the same nihilistic, majority-driven Constitutional jurisprudence that Bork and Rehnquist have advocated. At least liberal judges who advocate something like a “living constitution” understand the need for first principles, even if they aren’t the same set of principles advocated throughout the centuries from Aristotle through Locke.

Arkes should understand this. He explores the ironies of Roe, as I mention above, and he finds that liberal justices now sound more like the natural rights practitioners of our country’s first century than do the conservatives.

The Civil War is being refought in some sense within conservative circles between natural rights advocates like Harry Jaffa who find in Lincoln’s political philosophy a restatement of natural law, and states’ rights advocates like most Republican officeholders and jurists today who, whether they like it or not, find their philosophical forebears in the antifederalist and secessionist movements from the first eighty years of our country’s history. Where do progressives fit in? How do they answer the charge that the Living Constitution model stems from a rejection of the Declaration of Independence and the Constitution as tainted by their support of slavery? Are conservatives on both sides of the natural rights divide correct in dismissing the progressives’ notion of constitutionality as irrelevant?

Do today’s progressives see themselves as outside of the debates that have recurred perennially over the last two-hundred-plus years? Do Hamilton vs. Jefferson, Clay vs. Jackson, and Lincoln vs. Douglas leave progressives cold? For better or worse, Tea Partiers are dressing up in colonial outfits and championing a certain understanding of what the Founders fought and died for. Conservatives in my youth cornered the market on the American flag. Are today’s progressives willing to cede the Declaration of Independence and the Constitution, too?

Posted February 13, 2011.

The Anglican Communion, including the Episcopal Church, considers itself the via media (“the middle way”) between the rest of Protestantism and Roman Catholicism. Richard Hooker, an Anglican priest and theologian, cleared this path from a theological and philosophical perspective through his book Of the Laws of Ecclesiastical Polity, published in two sections in 1593 and 1597. But in the process of becoming the first great theologian of Anglicanism, Hooker – along with John Locke a century later – created a middle way in political theory between a Calvinist theocracy and an absolute monarchy. In so doing, Hooker and Locke brought Thomas Aquinas’s medieval natural law understanding into England’s early modern period and made it available for the American Founders. The sixteenth century argument for a Calvinist theocracy and the seventeenth century argument for an absolute monarchy were opposite extremes that rejected at least three medieval notions: the existence of a natural law by which a community may judge positive law and the rulers who propagate or enforce them, the existence of a civil society that predates a political one, and the proposition that all men are created equal.

Most of my information comes from reading Locke’s Second Treatise of Government as well as Alexander S. Rosenthal’s book Crown Under Law: Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism, published in 2008. Rosenthal doesn’t describe Hooker’s and Locke’s philosophies as a middle way, and he doesn’t look for similarities between Hooker’s opponents and Locke’s as I do here, but he demonstrates the almost complete similarity among the natural law theories of Aquinas, Hooker, and Locke. Most of what some writers have found dissimilar among the writers has more to do with emphasis, which in turn has to do with the historical time frame in which each wrote and the particular audience and arguments each was addressing.

Hooker believed that the Calvinist conception of law threatened to overthrow English law and government. Hooker wrote his Laws as part of a pamphlet war with Puritans (English Calvinists) who were disappointed that Elizabeth’s settlement, while outlawing the practice of Roman Catholicism, retained several Catholic practices, such as the use of priests’ vestments, and more importantly for my purposes, asserted Parliament’s authority over the Anglican church’s ritual and government. The Puritans didn’t believe the state should have any say over church affairs, even over “things indifferent” – the designation Elizabeth’s backers used to describe church practices which the Scriptures seem to neither condemn nor condone. As Calvinists, Puritans believed that God was indifferent to nothing in his church; if a practice could not be discovered in Scripture, then it was anathema to God (18 – 20). This Calvinist argument was often applied to both civil and ecclesiastical government. Hooker’s chief opponent, Thomas Cartwright of Cambridge University, argued that “the positive enactment of Scripture alone should be the guide of all civil and ecclesiastical affairs and whatsoever is without explicit warrant in Scripture is without warrant at all,” according to Rosenthal. Hooker feared that the Puritans would effect in England what the Anabaptists effected on the continent: “From this they proceeded unto public reformation, first ecclesiastical, and then civil,” he pointed out (88).

Hooker argued that the Scripture was only one of three forms of law binding on men (as opposed to God or beasts). In doing so, he was asserting what had been the basis of English law up until that point, taken from Thomas Aquinas:

In the Thomistic theory of law, man is not only under the divine positive law, but under a “three fold” subjection to the three orders of law – the divine positive law revealed in Scripture and known by the supernatural light of faith, the natural law discerned by reason and founded upon human nature itself, and finally the human positive law enacted by the civil authority. (20)

The middle of these three orders – the natural law – is best known to us from references to it in the Declaration of Independence, but it has been out of vogue since the end of the American Civil War. Aquinas discovered “first principles” of natural law, which he called “self-evident truths” available to all mankind through reason. An example would be that all things seek after good, that is, that all things seek to actualize how they were designed. “Second principles” are not as self-evident, he wrote, and people may need Scripture (for instance, a lot of the Decalogue) or the teaching of the wise to assist their reason in order to apprehend them. Examples of secondary principles are honoring parents, not stealing, and not committing murder.

According to Aquinas, natural law is discernible chiefly through man’s ability to reason, but reason is an ability that Calvinists believed man lacked after Adam’s fall. It is therefore the Calvinists’ pessimism concerning human nature that led them to reject natural law. From Crown Under Law:

Thus Calvin wrote that:

It cannot be doubted that when Adam lost his first estate he became alienated from God. Wherefore, although we grant that the image of God was not utterly effaced and destroyed in him, it was, however, so corrupted, that any thing which remains is fearful deformity.

With this conception of post-lapsarian man, it is not hard to imagine why the older conception of natural law – where man is able to discern certain ends within nature by his natural powers – comes under increasing skepticism among the Calvinists. (47)

Aquinas’s view of post-lapsarian human nature was more optimistic:

A central Thomistic motif is . . . Grace strengthens and perfects nature but does not destroy it. The natural powers of human reason and will, though affected and disordered by the Fall, but [sic] still retain some of their natural potency and goodness. Man in Aquinas has two lights to guide him, the natural light of human reason, and the supernatural light of faith. (49)

Calvin’s pessimism is linked not only to his understanding of post-lapsarian man but also to his famous views on predestination, which in turn colored his followers’ views on whether a civil society existed before a political one and whether all men are created equal. Predestination, of course, is kind of a “Can God make a rock so big that he himself can’t lift it?” controversy, but it was never considered to be reducible to such a simplistic formulation. Nevertheless, at the heart of the controversies surrounding predestination have always been the theological problems associated with either a yes or no answer to whether God ordains some souls to eternal damnation:

To answer in the negative might seem to question God’s providence over all events and omniscience, since God being omniscient would certainly foreknow from before the moment of their creation that some persons would be lost . . . . But to answer yes might seem to call God’s beneficence and justice into question, as well as God’s desire to save all men . . . (24)

Aquinas nevertheless answered the question in the negative, threading the needle somewhat by reasoning that reprobation is “a consequence of the free rejection of God’s grace and not of God’s antecedent will for the reprobate. On the other hand, Aquinas does not hold that predestination to eternal life is conditional, but rather absolute, meaning that God’s election of the predestined occurs without consideration of his foreknowledge of their merits.” God compartmentalizes his foreknowledge so that people have a choice.

Calvin, however, answered the question unequivocally in the positive:

All are not created on equal terms, but some are preordained to eternal life, others to eternal damnation; and, accordingly, as each has been created for one or other of these ends, we say that he has been predestinated to either life or death. (25)

Calvinist views on predestination and the complete depravity of man after the Fall colored the Puritan understanding of law. To the extent Calvinists believe in a natural law, it takes on a strain of natural law called voluntarism developed by fourteenth century Franciscans such as William of Ockham. A voluntarist view of law emphasizes the superiority of the lawgiver over the law. Therefore, the divine will expressed in natural law is more important than its teleological purpose. Rosenthal summarizes the debate:

If then the natural law proceeds from divine reason, then a given act may be good or evil in virtue of its own intrinsic nature. Since goodness belongs to the very nature of the divine essence, God could not will that an intrinsically evil act be good. If however the natural law proceeds solely from divine will, then there is nothing intrinsic to any given act to make it good or evil – it derives its moral character solely from the divine command. (290)

In contrast to Ockham’s, Aquinas’s and Hooker’s notions of law start with God’s divine nature and not with his superiority over the law. Under Hooker’s expression of natural law, “the first law eternal lies within the divine nature and is that by which God determines His purposes and binds Himself to them. The second law eternal consists in the eternal law as mirrored in the purposes of nature and mediated through the hierarchy of being” (55). For Aquinas and Hooker, natural law is teleological as it was for Aristotle: its primary purpose is to allow each kind of being under its purview – human, animal, and plant – to become what it was designed to become. And God binds himself by his law – he creates the rock so big that he himself can’t, or at least won’t, lift it.

But for Calvinists such as the Puritans, natural law, at least this essence of natural law as it was developed by and handed down from Aristotle, Aquinas, and Hooker, was not possible. Man in his natural state is too depraved, and his reason is too much under the influence of sin, for him to have been guided by it.

Closely associated with the existence of natural law was the rights and responsibilities of the government enforcing the law. For political theorists in the sixteenth and seventeenth century, man’s state before government determined whether rulers served with the consent of the governed or whether they ruled by right. Hooker and Locke believed that man was in civil society by nature and moved into political society by choice. In other words, civil society preceded government and is not coterminous with it. Rulers therefore serve by the consent of the governed and not by right.

Aquinas and Locke recognized a right of resistance when a ruler violates natural law. Hooker never addressed a community’s right of resistance against a ruler because, in his pamphlet war with the Puritans concerning the extent to which the Crown could govern ecclesiastical affairs, the issue never came up. Like Hooker, Locke worked out his most important ideas on political theory as part of a tract war, but unlike Hooker, the issues Locke addressed directly bore on the extent of royal power over society as a whole. (Despite their different purposes for writing, however, Locke quoted Hooker extensively in his two treatises; well over ninety percent of the quotations he included to support his material was from Hooker.) Locke’s two Treatises on Government were in response to arguments by patriarchalists that rulers served by right as descendants of Adam. Patriarchalists applied the metaphor of a father’s right to rule his children to a king’s right to rule his people. (King James I was, more than any English monarch before or since, enthralled with patriarchalism.) Patriarchalists believed that men were not born free or equal since some were born to rule and the rest weren’t. While Aquinas, Hooker, and Locke all acknowledged that people are not equal in the sphere of their talents, all three asserted that people were born with equal political rights. Although Aquinas’s theory wasn’t worked out in the direction of whether rulers served at the consent of the governed, he acknowledged a populace’s right to resist its ruler if his positive law or his execution of that law violated natural law. Locke’s Second Treatise of Government is in agreement with Aquinas’s views concerning a people’s right to resist its ruler but offers a lot more hypothetical situations to flesh out how that right would work in practice.

The recent Supreme Court decision in Citizens United v. Federal Election Commission reminds us that conservative forces can alter tradition and precedent as easily as progressive forces, and such was the case with patriarchalist theory as well as the idea of absolute monarchy that it supported. In the pamphlet war in which he was engaged, Locke and the core of his natural law teaching were backing tradition, and his opponents were seeking to establish a modern innovation.

Contrary to a popular misconception, the absolutist conception of government where the sovereign or king is both the source of law and above the law is much more a product of early modern thinkers (e.g., Bodin) than the medieval tradition. The medieval political order rested on a delicate balance between kings, feudal princes, and the Roman Catholic church, with the whole structure conceptualized as a loose unity under the Pope as spiritual head and the Emperor as temporal head. By the sixteenth century, the Royal authority tended to gain in relative position – the federation of Christendom was giving way to a Europe of nations ruled by kings. On the level of practical power, the consolidation of the national monarchy in, for example, Spain, France, and England undermined the older feudal structure with the rise of centralized professional bureaucracies and armies. In England, Scandinavia, and elsewhere we see also the effort to bring ecclesiastical affairs under royal jurisdiction. The new power of kings made an absolutist system a practical possibility in the early modern period. (89)

Although on opposite sides of the ecclesiastical (and, therefore, political) spectrum, Puritans and absolute monarchists had some similar basic elements in their political theories: people were not born free, people were not created equal, and rulers served by right and not by consent of the governed.

Medieval natural rights theory, as it expanded slowly over the centuries, had to defend itself against single-order, positive law systems in the eighteenth and nineteenth centuries just as it did in the sixteenth century against the Puritan notion of a theocracy and in the seventeenth century against the patriarchalist notion of an absolute monarchy. Many ideas in the American Constitution, including freedom of religion and freedom of the press – not to mention something close to pure representative democracy – were real innovations in European and American history. However, natural law, natural rights, and the equality of man enshrined in the Declaration of Independence were recognized aspects of political theory from at least medieval times. In some sense, the American Revolution was not a revolution but a war to apply rights under the English Constitution and medieval natural law to Americans.

The American Civil War, too, was a struggle between a conception of law that included natural law and one that involved only positive law. As I’ve discussed elsewhere, John Calhoun, the political theorist behind Southern secession, argued that men were not born free, that men were born into a political state by nature, and that men were not created equal in any sense. And Stephen Douglas, Lincoln’s opponent in both 1858 and 1860, argued for his doctrine of “popular sovereignty” by putting the natural-law notion of man’s equality up for a territory-by-territory vote as if natural rights didn’t exit or could be overturned by popular vote. (While natural law detractors – at least as natural law was applied to Americans – were royalists during the Revolutionary War, they were sometimes proponents of majority rule before and during the Civil War.) As the Gettysburg Address makes clear, Lincoln saw the war’s central issue as whether a government dedicated to a central natural law proposition could endure.

Most people, I think, believe our nation is better off as it is now with only one order of law – positive law. I think we’re worse off for it. I’ll address four arguments I’ve heard against the idea of natural law. The first is the Christian-nation argument. Because we receive much of our understanding of natural law in Christian terms from the likes of Aquinas, Hooker, and even Locke, some believe that a return to natural law would be tantamount to becoming a Christian nation with a government dedicated to living out someone’s or some group’s understanding of the Bible. I believe a system of only positive law would run the greater risk of that happening. It was Hooper’s notion of multi-ordered law – a system of law that included medieval natural law – that countered the Calvinists’ single-order, positivist system of law. And today’s adherents of something like a Christian nation see human nature, law, and government much more like Calvin than Aquinas.

Besides, self-righteous movements such as the Communists, Nazis, and Islamists that toppled governments over the past hundred years were rarely later accused of doing anything illegal under their own systems of law – systems offering no recourse from unjust positive laws. The Nuremberg trials faced this dilemma at their outset (Rosenthal 249).

A second argument concerns our national values. Some people think that never having to decide on the values that animate our laws and Constitution would serve to unite us, or at least, unlike natural law, not do anything more to divide us. But positive law cannot long be a means of uniting us, if the experience of the last twenty or thirty years is any indication. One group’s legislation always seems to be another group’s injustice and outrage – often an outrage not based on reason, facts, or history.  Much of today’s outrage has its origins in poorly-thought-through sets of values discovered or developed not by national debate but within intellectual ghettos – echo chambers where points of view are always reinforced and never challenged. Perhaps a national discussion of natural rights might help us look back to clarify our nation’s values again – values not voted upon but discovered in the political philosophy our Founders chose to enshrine in some our chief founding documents. Looking to history as a source of the Framers’ political philosophy instead of only as a source of legal precedent sounds healthy, too.

A third argument against natural law is the perceived vagueness of the terms used by the likes of Aquinas, Hooker, and Locke – the end of man, happiness, life, liberty, and equality, for instance. I’m not sure if this vagueness is a good or bad thing. There’s something via negativa about the via media – something that courts can’t pin down the way they can the constitutions, statutes, regulations, and case law of the lex positiva. On the other hand, perhaps the jurisprudence of our liberal republic is well suited to apply such concepts in specific cases, having grappled over the years with rather vague notions such as due process, interstate commerce, and the establishment of religion.

A related argument is that courts would have to construe philosophical – yea, even theological – texts in order to flesh out natural law. As a trial lawyer in Virginia – the state with the least number of printed appellate opinions per year of its existence – I was sometimes in the position during property rights disputes of having to argue state supreme court opinions construing masters’ ownership rights in their slaves. Surely philosophy and theology aren’t as bad as that. Besides, as someone who has studied a little philosophy, theology, and law, I think the study of philosophy and theology might have a salutary effect on our jurisprudence.

Lincoln argued for the ascendency of natural law when he argued that the Declaration of Independence was the “sheet anchor of American republicanism.” We would do well to examine Lincoln’s call for a “political religion” – not one involving just the adherence to positive law, as he seemed to emphasize when he first used the term in 1838 – but one that involves the mature political religion he developed over the last dozen years of his life. Few people today would understand Lincoln’s political theory as calling for anything like a Christian nation.

I question whether a Constitutional convention – even one that would, upon its conclusion, be recognized by most as wildly successful – would go far to solve the fundamental problems of our republic. We’d still be left with a constitution and with only flawed strategies such as “original intent” and “living constitution” for interpreting it. Natural law, on the other hand, was recognized early on as a natural means of judging the validity of positive law.

I’m just beginning to work some of this stuff out, and I look forward to learning more about natural law and rights as time permits. As emphatic as I sound, I’m really just laying my thoughts’ keel here. I haven’t launched them, and I certainly haven’t commissioned them.

º º º

Crown Under Law crystalized for me three misconceptions under which I believe many of my fellow citizens labor. The first – the misconception that reason is antithetical to faith – is mostly among Christians, though I believe they have managed to persuade many of their non-Christian neighbors that it is a tenet of Christianity. In fact, reason was far more prominent in medieval Christianity’s cosmology than it is in Protestant Christianity’s. The failure of many Protestants to acknowledge man’s ability to reason about what matters most probably led to the cession of reason to more secular concerns. “The Age of Reason” may have been instituted in part by the Reformation’s overall rejection of reason as a means of apprehending God’s eternal law. Indeed, “reason” is still a naughty word today in many Protestant strands. For most pre-Reformation Christian theologians, though, faith was never opposed to reason; instead, faith and reason were means of comprehending different orders of God’s law – faith for Scripture, and reason for natural law. Proper Christian theology has never left an “Age of Reason.”

The second misconception is the lasting notion that Locke and some other Enlightenment figures such as Thomas Hobbes invented natural law and natural rights – or at the least they put an entirely new secularist understanding on an already-outmoded medieval theory – permitting the Americans the necessary cover from the standpoint of political theory to rebel against English rule. Instead, the absolute monarchy is the modern innovation which threatened a balanced system of English government. Absolute monarchy is the modern innovation, and not the lion’s share of the natural law explicated by Hooker and Locke.  As Locke himself put it in his Second Treatise:

Though they [the earliest societies] never dreamed of monarchy being iure divino, which we never heard of among mankind till it was revealed to us by the divinity of this last age; nor ever allowed paternal power to have a right to dominion, or to be the foundation of all government.

The last misconception is similar to the second one, I think. It’s this: Locke’s natural law and natural rights theories are somehow a godless bastardization of classical or Thomistic natural law – a radical departure from the past and one that has led to a less virtuous American citizenry and nation. For this misconception I blame the twentieth century philosopher Leo Strauss’s book Natural Right and History more than anything else. (I hope to blog about Strauss’s negative impact on the struggle to understand natural rights before too long.) In truth, the nation’s all-too-brief reconciliation with Locke’s natural law and natural rights theories just before and during the Civil War helped to save the Union and led to a more just society.

Posted July 1, 2010.

If you were to search the word “right” on the online Oxford English Dictionary, click the fourth entry out of nine, further limit yourself to some sense of right consonant with definition 3b on the resulting page (“The fact or position of having justice, reason, or fact on one’s side.”), push all five of the buttons on the top of the page (Pronunciation, Spellings, Etymology, Quotations, and Date chart) and a lot more buttons that even this December’s relaunch of OED.com will not offer, buttons such as Confusions, Connatural, Connections, Connivances, and Context (if OED buttons were published in alphabetical ranges like OED definitions), you would have something like Richard Tuck’s impressive Natural Rights Theories: Their Origin and Development (Cambridge 1979).

Before Tuck begins his fleshed-out, OED-like romp through the history of natural rights, he puts his own book in the context of other modern treatments of the history of natural rights. Unlike the richly patterned rug of natural rights theories Tuck discovers woven under our collective, ignorant feet, the accounts of that rug are sparse and threadbare. Tuck finds it ironic that “the language of human rights plays an increasingly important part in normal political debate [since World War Two], while academic political philosophers find it on the whole an elusive and unnecessary mode of discourse” (1).

But our age’s misty, bipolar approach to rights – frequent, vague assertions of “human rights” divorced from the West’s considerable theoretical history of natural rights – already may be put in at least some historical context, and Tuck attributes this political vs. philosophical irony to the legacy of Samuel Pufendorf, a German philosopher and contemporary of John Locke. Pufendorf limited natural rights to only actionable claims, and his views were picked up on a century later by Jeremy Bentham and the influential Utilitarians; therefore, many current political philosophers find reference to natural rights unnecessary. Why talk about natural rights if such rights are more easily discussed in terms of the duties someone else owes to the holder of such rights? Tuck points out that our current, poorly understood, post-Utilitarian notion of natural rights has helped to support authoritarian regimes (161-62).

But natural rights theories themselves have been mostly a conservative undertaking, I was surprised to learn, and in this respect Thomas Hobbes was no aberration. John Locke’s liberal natural rights theory was a notable exception, a kind of culmination of natural rights’ second flowering. Tuck finds that natural rights have enjoyed two great eras in Western history, 1350 to 1450, and then circa 1590 to 1670. “Seen against a background of European thought as a whole, [the “two great floruits of rights theories”] are freakish and fitful, and their dismantling has been a matter of high priority for succeeding generations” (177). Our nation happens to have been founded in an age already reacting to the last great natural rights flowering, but was founded on principles worked out at the end of that flowering. It explains some of the dissonance I hear in almost every paean to Jefferson or Lincoln.

I’ve moved now to my own theme and not Tuck’s, however. Tuck never mentions Jefferson or Lincoln and, unlike me, seems to have no ax to grind. But he writes about some pretty interesting and subtle ax grinders over the past two millennia, and I’ll leave you with two groups I discovered in his book that I feel an affinity toward, groups that together hedged the first, late-medieval natural-rights flowering.

The first group are medieval glossators (16).  Check out this paragraph from Wikipedia:

The glossators conducted detailed text studies that resulted in collections of explanations. For their work they used a method of study unknown to the Romans themselves, insisting that contradictions in the legal material were only apparent. They tried to harmonize the sources in the conviction that for every legal question only one binding rule exists. Thus they approached these legal sources in a dialectical way, which is a characteristic of medieval scholasticism. They sometimes needed to invent new concepts not found in Roman law, such as half-proof (evidence short of full proof but of some force, such as a single witness). In other medieval disciplines, for example theology and philosophy, glosses were also made on the main authoritative texts.

I really was born too late.

The second
group – the French nominalists and conciliarists – ended the first great natural-rights flowering by providing an easy target for both the Protestant Reformation and the Renaissance to take down natural rights for a hundred and fifty years or so. One of them – Jean Gerson – to whom Tuck attributes the first “fully fledged natural rights theory” (25), based his theory in part on his theology of union, a kind of theosis by which “man could come to be the same kind of being as God.” “Gerson kept a distance between God and man,” Tuck states, “but it was not a categorical break between two different kinds of being, as it was to be in Luther’s theology.” Here’s how Gerson’s theology influenced his rights theory:

This theology also led Gerson to see the relationship between God and man as a reciprocal one between equals. Thus he argued for a natural covenant between God and man, which – and this is the crucial point – generated rights on both sides. According to Gerson, men have rights against God as a result of God’s promise to them. . . . Because of this, we can see how freedom became an important value for Gerson: like Ockham (though with a number of important differences) he elevated the free wills of both man and God together. The arbitrary freedom of God’s will was necessarily matched by a similar freedom of man’s will – there could be no opposition between them. (30)

There’s something of both political and theological babies that the Reformation and the Renaissance drained with that bath water. If we could but risk another bath, perhaps Western civilization would be born again.

Posted August 5, 2010.

As you may have surmised, I’ve been immersed in natural law and liberal political theory for these first couple of weeks of my summer vacation. Because I’m most interested in the American republic’s foundation, I’m most interested in John Locke. No book has helped me understand his writing on political theory more than Ruth W. Grant‘s John Locke’s Liberalism (Chicago 1987).

Grant gets Locke. Her book gave me a way to understand him better by showing me how two of his primary works and a few of his secondary ones come together to make a coherent political theory.

That wasn’t supposed to happen. At least, that’s the message I’ve gotten from other things I’ve read. Locke appears a chameleon over his adult years, starting out acting like a reactionary, then a liberal, then something like a reactionary again. He had to survive the tumultuous English seventeenth century following Cromwell’s dictatorship and the Restoration, and he fled England during Charles II’s reign when he was suspected, without credible evidence, of participating in a plot to assassinate him. He returned to England soon after the Glorious Revolution and the ascension of William and Mary, published most of his major writing, and became a Whig legend during his last years. And over his long career, there are these inconsistencies in his writings and public acts, such as the discrepancy between his denunciation of slavery in his Second Treatise of Government and his possible role in helping to write the portion of the Carolina colonies’ constitution legalizing slavery. In addition, historians have had difficulty tracking down when Locke wrote the material he published, and they have hoped that nailing down the political circumstances surrounding his writings might explain some of the inconsistencies among them.

Grant takes a different tack. She gets the history, but she reads Locke long enough until one part of his work starts to make more sense of another. Her primary approach is to read Locke’s epistemological Essay Concerning Human Understanding as a means of understanding his Second Treatise, the cornerstone of Locke’s political theory. The Essay sets out what is possible for men to know, and Grant shows that Locke uses his own epistemological standards, as hopeful and as limited as Locke frames them, to demonstrate in the Second Treatise that mankind might just be mature enough for liberal government. Then she suggests the similarities of Locke’s approach in both works:

Locke’s attitude toward the political problem is the same as his attitude toward the problem of human understanding. Men cannot know everything, but they can know enough to govern their conduct rationally. (203-04)

Grant points out that, in setting out a political theory that is both idealistic and practical, Locke comes across in Second Treatise as an uneasy optimist. “Locke keeps the reader constantly aware of the gravity of the political problem and of the fragility of human solutions to it” (203). In pages filled with reflections on tyranny, insurrection, invasion, and usurpation, Locke seems like a teacher who expends as much energy controlling her unruly classroom as she does teaching. And Locke was teaching: the Second Treatise‘s audience was the general public; it was part of a pamphlet war to influence the public’s understanding of government.

Locke creates no Utopia in the Second Treatise or elsewhere, no understanding of government that would make any political system impervious to tyranny. (He never lays out a specific political system at all, in fact, though he claims that democracies, aristocracies, hereditary monarchies, and tribal kingdoms can operate fully within his theory of government.) However, at each stage of a society’s structure, he offers aspects of government that might help lessen problems associated with that stage. For instance, once a society uses money and thereby leaves what Locke refers to as its Golden Age, government should include a separation of executive and legislative powers in an attempt to prevent money from leading the government to serve only the rulers or to favor one segment of society over another.

From his critics’ perspective, Locke’s problem doesn’t stem from the number of threats to liberal government by insurrections, usurpations, and the like, but is the problem of liberal government itself. “The change is made that a liberal community cannot sustain itself because it cannot justify the claims of the public good against individual self-interested claims . . .” (99). Locke’s emphasis on individual rights leaves him open to the charge that, in a liberal society, the community is less paramount than individual rights. Locke answers by asserting that, though an individual has an inalienable property right in life and liberty, and though her rights precede and survive the community were it to perish, the individual’s first duty is to act for the preservation of the community and all its members while the community exists. And, when that society has a legitimate government, the individual’s first duty is also to that government and its preservation.

It may help here to outline what liberal government is. For Locke, to be a liberal (and to Grant, to be a liberal political theorist of any stripe) means to assert that man is “naturally free and equal.” “The direct implication of the liberal premise” is that no one has a natural right to rule another. In a state of nature, which is not a moment in history but “is nothing more than the name for the relation between any men at any time who have not established a common political authority” (66), there is no one to judge between two individual’s or two nation’s claims, so each individual or nation has the natural executive power to enforce his, her, or its rights under natural law. This was among the chief “inconveniences” of a state of nature, according to Locke, and the movement to society, at least in the case of individuals if not nations, is almost inevitable. In society, as a corollary to the individual’s right to life, the individual has the duty to preserve the society and, to the extent it doesn’t conflict with that preservation, everyone in it (99).

Locke distinguishes between society in general and political society. The latter occurs when a group decides to act as one body and a common authority is present “capable of judging and executing their common law” (101). Political society can disintegrate; in which case, “all obligation to the government ceases. Yet each individual member remains obligated to the society” to protect it and to help form a new government. Anarchy, on the other hand, is the state where both government and society are destroyed. A properly exercised right of resistance may bring down a government, but it would not necessarily lead to anarchy since society may be extant (201).

Locke is sometimes accused of borrowing his theories from Thomas Hobbes, the political theorist who wrote Leviathan earlier in the seventeenth century. Locke’s utilitarian tone probably attracts the comparison, but the two philosophers are working from different worst-case scenarios and, from them, reach different conclusions. “By identifying the state of nature as the worst case, Hobbes teaches obedience to civil government. By identifying the state of war as the worst case, Locke justifies resistance” (72). For Locke, a state of war exists whenever one party (be it an individual, a nation, or a society’s ruler) attempts to take away the right to life or liberty of another party (be it an individual, a nation, or a society). But Locke is at pains to balance this right of resistance in case of a state of war between a ruler and his society with the people’s obligation to obedience:

Neither legislative nor executive is given sovereign authority [i.e., a natural right] within the government, and the obligation to obedience is not undermined by the right to resist. The right of resistance is exercised by the people acting as a political unit, and it is a carefully limited right. Resistance is justified only when the basic minimal standards for legitimacy are being threatened. Revolution is described not as a step toward realizing an ideal of justice, but as resistance to political degeneration.

But Locke’s carefulness belies liberalism’s core characteristic. Locke tries to clarify with examples when a society may rightfully resist its ruler, but the efforts suggest that, ultimately, “each individual must judge for himself whether the conditions are such that the government or the society has dissolved, and his obligations with them. This is the radical political individualism characteristic of liberal thought,” according to Grant (202).

An important foundation for the right to resistance (a.k.a., the right to revolution) as well as for liberalism’s “radical political individualism” is the notion of natural rights. To liberalism’s premise, which I mentioned earlier in the context of government, that “men are naturally free and equal,” Locke joins a right to life and to property (which is a necessary component to a right to life, since if my enemy takes my food, I may not live). As Grant points out, Locke’s carefulness in separating the political and economic rights have caused commentators to extrapolate the importance of property rights as a separate category to Locke, but Locke seems more concerned with making the distinction between property rights and more abstract rights in order to demonstrate the differing property rights an individual has in her material property and in her right to life and to liberty. Grant has the illuminating insight that, for Locke, all natural rights are, in a sense, property rights.

Establishing a property right in life and liberty as well as to material property allows Locke to make important distinctions among the three rights. Grant summarizes three ways Locke describes how you can exercise your property rights in something:

(1) You can agree to transfer your right, for example, through a sale or a will. (2) You can retain your right but entrust the management of your property to another. (3) You can forfeit your right.

You may do any of these three with an ownership right in things, but you may only entrust or forfeit your right to life andliberty. You may not alienate (i.e., transfer) life and liberty. Grant notes the oddity of having the “power to rent but not to sell,” so to speak, one’s right to preservation (i.e, the right to life and liberty). But one entrusts one’s right to preservation when one consents to be ruled in a political society. The trust suggests that a ruler may forfeit his right to rule over a person or group. One may not consent to slavery, however, which would amount to a complete transfer of one’s right to preservation. “Slavery cannot originate in consent,” as Grant puts it (69).

Why not? Why is the right to preservation inalienable? The reason involves the most overtly religious portion of Locke’s political theory, I believe. Locke asserts that our property rights in ourselves have limits. “Although each man may be his own master in respect to other men, that is not the case in his relation to God. . . . Our right to our persons, our freedom to regulate our lives as we see fit, does not include the right to destroy ourselves. Since no man has the right to destroy himself, he cannot give that right to another; he cannot consent to his own enslavement,” Grant summarizes.

Just as man’s property rights in himself are circumscribed by this distinction between God and man, so is man’s property rights in beasts:

For however, in respect to one another, Men may be allowed to have a propriety in their distinct portions of the Creatures; yet in respect to God the Maker of Heaven and Earth who is sole Lord and Proprietor of the whole World, Mans Propriety in the Creatures is nothing but that Liberty to use them, which God hath permitted. (First Treatise §39)

Here, then, are the fundamental distinctions among God, humankind, and the rest of nature that Lincoln draws on in arguing against slavery from a human rights standpoint and that Harry V. Jaffa finds fundamental to an understanding of natural rights and Lincoln’s political philosophy in his book A New Birth of Freedom.

For a second argument that no one may consent to slavery, Locke reinforces the distinction between humankind and “beasts” through the concept of reason. Man can rule themselves (and others when they have been consented the right to lead) by reason, but the rule of force “is the rule among beasts” (Liberalism 70). Only when one “abandons the moral rule of the human community, open to all who reason, and substitutes the rule of force [does he descend] to the level of the beasts and can justly be ruled as if he were a beast – as a slave. . . . To consent to place oneself in that position would be to renounce one’s humanity . . .” (70 – 71).

Locke’s liberalism, then, retains the Christian distinctions among God, humankind, and the rest of nature, and it precludes the argument that the Southern rebellion that precipitated the American Civil War was based on liberal theories of natural rights or a right of revolution. Not only is secession, which is the denial of the majority-rule principle, counter-revolutionary in a Lockean sense, but a rebellion explicitly aimed at protecting a positive law property right in slaves seeks to maintain or expand what Locke defines as tyranny.

The idea that no person may consent to his or her enslavement also is fundamental to Locke’s distinction between legitimate and illegitimate government, which I describe above. Because no person may consent to slavery, slavery – and tyranny, which Locke considers a type of slavery – is commensurate with a state of war between a ruler and his subjects.

Locke is sometimes incorrectly portrayed as a cynic who adapts classical and medieval natural rights theory to the Western world’s governments that lack the old consensus about what the purpose of law is. Indeed, his Second Treatisedoes emphasize principles of freedom and preservation that seem to have little bearing on a teleological view of law. But Grant’s method of reading the Essay and the Second Treatise together demonstrates that Locke hasn’t forsaken a classical understanding of happiness and its role in natural law. The Second Treatise never mentions happiness, but theEssay and Locke’s Conduct of the Understanding make clear that Locke’s view of freedom, an unalienable right in theSecond Treatise, is connected with reason, which in turn is connected with self-mastery:

The freedom of the individual . . . has a natural basis, both in the capacity to reason and in the desire for freedom, a desire for self-mastery present in every human being. Men want to act independently and to be masters of their situation. A generalized desire for mastery over people and things could be seen as the root of all injustice. But when it is limited to a desire for self-mastery and controlled by the rational faculty, it becomes indistinguishable from a desire for freedom.

Locke therefore concurs with the natural law theorists who have preceded him that just government is more likely to be maintained under a something like a virtuous society. If the political theory in the Second Treatise is sewn among threats to good government, the epistemology in the Essay is sewn among threats to reason and self-mastery, such as passion, interest, and the uncritical acceptance of a party’s partisan position. However, Locke is as nervously optimistic about man’s individual ability to be led by reason over the long run as he is about government’s ability to do so.

While Locke’s emphasis on man’s ability to reason puts him outside the circle of skeptics, his emphasis on man’s and government’s endless temptations keeps him also outside the circle of “those absolutists who rely on a doctrine of innate knowledge of practical principles” (49). Mankind is not so endowed, Locke knows, and reason itself, like Lady Wisdom in Proverbs, has many unsavory competitors in the marketplace. Locke recognizes that legitimate government is a fragile thing, ultimately dependent, as it is, on human nature, but he believes that pessimism alone would give it no chance at all. To me, Grant’s book suggests that, beyond his liberal political theory, Locke’s tone is what we need now in our polity.

In a comment to “A Slow President,” maggie writes:

I would love to know what Lincoln biographies are you’re favorites. I haven’t read anything on Lincoln in a LONG time, but would love to read something fresh on him.

Maggie, I’ve been waiting a long, long time for someone to ask me that.  Some of this might not be “fresh,” since I’ve included one book almost as old as I am.  Well, let’s get started!

A good reintroduction to Lincoln might be Stephen B. Oates’s With Malice Toward None: A Life of Abraham Lincoln, which came out in 1977.  I’ve read it twice, mainly because it’s such a good story.  Oates’s Lincoln is a bit romanticized, kind of an updated Sandburg version.  If you can find the unabridged, recorded version, you’re in for a treat.

The least romanticized Lincoln may be David Herbert Donald’s Lincoln, which was published in 1995.  It’s a fine biography with lots of good detail.  Lincoln plays the part of a political operator, which he was, but one gets the feeling that the Lincoln here is a bit the product of late-twentieth-century America.  Too much the callous C.E.O.

My favorite Lincoln biography is Allen C. Guelzo’s Abraham Lincoln: Redeemer President, which was published in 1999.   Quoting from my own customer review on Amazon: “Like a typical biography, Redeemer President goes through its subject’s life.  But unlike most biographies, Redeemer President centers on the maturation of its subject’s thinking.  Guelzo shows how some of Lincoln’s most famous ideas, such as his reliance on ‘the proposition that all men are created equal,’ were part of Whig orthodoxy.  To trace Lincoln’s development takes nothing away from his genius, of course.”  The book examines the maturation of Lincoln’s religious thinking, too.

The most recent Lincoln blockbuster, Doris Kearns Goodwin’s Team of Rivals: The Political Genius of Abraham Lincoln, is a lot of fun.  It gives a brief biography of Lincoln and his three chief rivals for the 1860 Republican presidential nomination up to that year’s party convention.  Then it follows the men through Lincoln’s presidency.  William Seward, the odds-on favorite for the party’s nomination in 1860, becomes Lincoln’s closest friend in his cabinet after Lincoln earns his respect.  Salmon P. Chaise is made out to be a vain opportunist that Lincoln must expend lots of energy managing during his first term.  The book focuses, as you might imagine, mostly on Lincoln’s cabinet. Published in 2005, Team of Rivals is really a great biography.

My favorite Lincoln books are not biographies at all, but works of political philosophy by Harry V. Jaffa.  The first is Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates, published in 1959.  Jaffa first makes Douglas’s case for “Popular Sovereignty,” the doctrine that allowed each territory to vote on whether it would be a free or slave state when it entered the union.  The second half of the book makes Lincoln’s case for natural rights, which Lincoln found embedded in the Declaration of Independence and which, when combined with the Constitution, required the eventual extermination of slavery.  The book focuses not only on the debates’ arguments but also on speeches and other historical events that flesh out those arguments.  If you read it, read its appendix first, which gives a great overview of the five years leading up to the debates, beginning with the passage of the Kansas-Nebraska Act.

Jaffa’s sequel, published in 2000, is A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War.  I set out here my Amazon customer review of the book:

A New Birth of Freedom is a book about Lincoln’s political philosophy, which Lincoln himself said (in so many words) emanated completely from the Declaration of Independence. The book is the sequel to Jaffa’s Crisis of the House Divided, written over 40 years earlier. In Crisis, Jaffa takes up Douglas’ arguments in the famous 1858 debates for the first half of the book and then Lincoln’s in the second half. In New Birth, Jaffa backs up from the 1850′s to take in a sweep of history and thought from Classic Greece to the present.

If the material in New Birth is far more wide-ranging than in Crisis, the theme in New Birth is much more precise. The south lost the war, but the philosophy behind the justifications advanced by southern leaders such as Calhoun, Taney and Stephens is winning the battle of the minds.

Crisis of the House Divided is like being in philosophy class, but New Birth is like being over at the professor’s house later for drinks. Jaffa seems to lazily go over mountains of quotes, philosophers, and arguments, and he returns again and again to make the same points. But it’s never tedious. One finds Jaffa’s repetitions well worded and essential in understanding how far we’ve fallen philosophically. And eventually, toward the end, one gets a sense of the book’s structure.

Here’s the book’s thesis. Most of us admire Lincoln, but most of us wouldn’t agree with his political philosophy. Lincoln really did believe that our nation was dedicated to a proposition — a proposition that also brought forth natural rights. Mr. Jaffa demonstrates how 19th Century historicism has won out over the Founders’ concept of natural rights. Just as Nietzsche bitterly accounts for how Jewish thought won out after the Israelites were defeated, A New Birth of Freedom laments the ascendancy of the Confederacy’s historical approach in today’s political thinking.

Jaffa traces natural rights from Greek and Jewish thought through Locke, Jefferson, Madison, and Lincoln. Basically, Jaffa teaches that natural rights begin with the doctrine of the “state of nature.” In this state, a person has the right to life and liberty, and to property in order to defend his right to life and liberty. People form government in order to better protect these inalienable rights. In so doing, they yield the exercise of some of their rights, but not the rights themselves, which are inalienable. The people reserve the right of revolution, which is strongly asserted in the Declaration of Independence. Legitimate government can only exist through the consent of the governed, by a unanimous compact or contract. The measures of such a government by the majority’s will are deemed the will of the whole, so long as the minority’s rights are not violated by the measures.

All of this presupposes that all men are created equal. Jefferson found this self-evident, famously pointing out that we don’t find some people born with spurs on their shins and others born with saddles on their backs. Natural rights recognizes a distinction between God and mankind, on the one hand, and a distinction between mankind and beasts, on the other. The historical school finds all of this an accident of history. Picking up with Jaffa:

The historical school, which by the 1850s had largely displaced the natural rights school of the Founding, had also given rise to the romantic movement of the mid-nineteenth century. It too repudiated natural right, because it repudiated ‘rationalism,’ insisting as it did that ‘the heart had its reasons which reason did not know.’ Accordingly, Lincoln’s Socratic reasoning was rejected, because the very idea of justification by reasoning had come to be rejected. History, not reason, decided that some should be masters and others should be slaves. This movement of Western thought, from the natural rights school to the historical school, culminated in the Nazi and the Communist regimes of the twentieth century.

This was one of Jaffa’s few specific references to how the relativism of the historical school has affected modern history. I hope that, in his next book, Mr. Jaffa will give many more examples of how our retreat from the Founders’ conception of natural rights – and the clear distinction among God, people, and beasts underling that conception – has cost us.

Speaking of Amazon, to which I’ve linked each book title discussed, you pretty much have to ignore the aggregate stars the customer reviews give a Lincoln book.  Confederate sympathizers bash most modern books on Lincoln because these books don’t generally share their views of him, and by so doing they artificially lower these books’ star totals.

I seem incapable of writing short posts these days.  I hope you’re not sorry you asked, maggie.  And thanks for asking.

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Posted September 28, 2008.

The mosque. Must I get involved in this, too?

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Did you know that twenty percent of Americans now believe that the president is Muslim? The polling took place just before he first spoke about the mosque last week. Do the remaining eighty percent correctly identify Obama as a Christian? Hardly. “The number of people who correctly identify Obama as a Christian has dropped to 34 precent, down from nearly half from when he took office,” according to today’s Washington Post.

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There are some sensible things being written about the Islamic community center, most of it written about the people who are trying to build the center and the people who live and work around where the center would open – the people who just want to be left alone. Here’s are links to articles in this week’s New Yorker and today’s Washington Post about it. Turns out those people are human beings – Americans, even, if I may be so bold.

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A new Time-SRBI poll found that 61 percent of Americans oppose building the center. Nearly twice as many people said the center, and the mosque inside it, would be an insult to Sept. 11 victims than said it would be a symbol of religious tolerance.

– Washington Post, Aug. 19, 2010, p. A4

The pollster put its participants on the horns of a false dilemma. The center is neither an insult to victims nor a symbol of religious tolerance. It is many other things, though, and mainly to those who intend to use it or who live or work around it. The pollster’s false dilemma reminds me of Stephen Douglas’s miscegenation argument, which Lincoln ably characterized in his response to it: “I do not understand that because I do not want a negro woman for a slave I must necessarily want her for a wife. My understanding is that I can just let her alone.”

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Must the president get involved in this, too? Can’t he just say, “They have the right to build it.  It’s not my place to say whether or not they should; those parties in interest are defined by New York City ordinance.  It’s my place – and the place of all Americans – to defend that decision on the grounds of the First Amendment and of religious toleration.”

Can’t we just leave the Islamic community center, the people that will use it or will live or work around it – leave the entire local legal process involved in approving it – alone?

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There is no way to decide these questions [placing moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails.

– Robert Bork, The Tempting of America, p. 259.

Indeed, Madison, like Jefferson, argued . . . that a majority may do only those things “that could be rightfully done by the unanimous concurrence of the members.” Thus it is not simply the will of the majority that “rightfully” rules in a democracy, but the rational will of the majority. In the same vein, Jefferson wrote that “[i]ndependence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” Thus, it is clear that Madison and Jefferson viewed the people as a moral entity, not simply as a collection of discrete value-positing individuals. The positivism of both Bork and Rehnquist is predicated on a kind of moral relativism that ultimately leads to nihilism.

– Edward J. Erler, in his introduction to Harry V. Jaffa’s Storm Over the Constitution, p. xxix

Bork’s argument for majority vote as a substitute for an unachievable moral consensus – his “majority morality” – is precisely Stephen Douglas’s argument for Popular Sovereignty. By allowing a majority vote to determine whether each new territory would permit slavery, the United States government through Popular Sovereignty treated its citizens not as a “moral entity” but “as a collection of discrete value-positing individuals.” The result was Bleeding Kansas.

The nub of the mosque issue is the central issue of the Lincoln-Douglas debates. Lincoln rejected Douglas’s – and Bork’s – notion that America cannot, as a society and through reason and difficulty, rediscover her first principles in the Declaration of Independence that animate the Constitution. As our Bill of Rights affirms, some things – like the Islamic community center and the president’s religion – are not a matter of majority opinion or vote.

Posted August 19, 2010.

Some mornings, when the light grows and I set myself to grow still, I imagine that I am debating George Bush.  I’ve fallen into this daydream for years now: it digs at something, I believe.  So the moderator asks Bush to name the political philosopher or thinker he most identifies with.  Bush answers, “Christ, because he changed my heart.”

My place is to lose the election, to have historians view the best version of my answer – halting, unduly complicated, vaguely insincere – as the election’s turning point, and not even that, because I was losing before George Bush said Christ.

Stevenson could not win, Carter could not govern, and Lincoln, you know, governed, but only over civil war.

During long, two-term moonlit nights, we remember the reach of sunset, its sweet, spectacular defeat, its fire framed in an arched corridor where we shovel our dark ideals and reflect, demiurgical and orange-faced, an incarnate sun, a clear fabrication, a foundry of Fathers.

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Posted September 6, 2009.

I love those flags from the Revolutionary War era. The excitement of the times must have led some colonists to stay up nights on CorelDRAW (it was a while ago) designing flags to express why their people were fighting. “Everything is new and yielding,” Benjamin Rush enthused about his generation’s time, and everyone may have had a fair shake at making his design into his local regiment’s – or even his colony’s – flag.

I didn’t know until today that many Tea Party movement members have appropriated one of our nation’s early flags to represent the movement – the “Don’t Tread on Me” flag, called the Gadsden flag. I think many Tea Partiers and I have at least this in common: we envy the Revolutionary Generation’s opportunity to help shape a young republic.

I like movements as well as flags, and I’m glad the Tea Party movement is looking into our nation’s founding documents with the idea of turning the nation’s attention back to something it has overlooked somewhere between its founding and now. I’d love to watch a series of debates by real authorities over what certain phrases and sections in the founding documents mean and how they might apply to us today. Wouldn’t that be the best political theater? Maybe a separate session for each document, one, say, for the Treaty of Tripoli that the U.S. Senate ratified in 1797, giving the force of law to the proposition that “the government of the United States is not, in any sense, founded on the Christian religion.”

Another Revolutionary-era flag better represents my own, one-man movement to reclaim our founders’ natural law understanding: a variation of the Pine Tree flag known as the Washington’s Cruisers flag. These two flags have always been my sentimental favorites: where I grew up, a few miles from where Cornwallis surrendered, it seemed like pines accounted for three-quarters of the tree population.

The Pine Tree flag is a simple jack of a green pine on a white field. The Massachusetts Navy pulled the idea for the flag’s design from the more complicated Bunker Hill flag, which had a much smaller pine stuck in the flag’s upper-left corner. Washington used the basic design of the Pine Tree flag for his own squadron of schooners in 1775, adding the words “Appeal to Heaven” or “An Appeal to Heaven” to it.

Perhaps the experts could debate founding flags as well as founding documents. Most sites I looked at attribute the origin of the words “An Appeal to Heaven” to a kind of prayer, to the American Navy’s realization that, going up against the greatest navy in the world, they would need all the help from heaven that they could get. I had no reason to doubt this explanation until I started reading John Locke’s Second Treatise of Government. He used the phrase “appeal to heaven” several times in it as a term of art.

For Locke, the state of nature was like the state of war: in both situations, individuals, groups, or nations are “without a common superior on earth with authority to judge between them” (III.19). The difference between the state of nature and the state of war is how the parties in such a situation relate to each other. If they live together “according to reason,” then they are in a state of nature. But if one party uses “force, or the declared design of force upon the person of another,” then they are in a state of war (id.). A state of war may exist between individuals or nations, or it may exist between people and their rulers who exercise “a power the people never put into their hands” (XIV.168). Because there is no “common superior” to appeal to in such a state of war, the aggrieved party may appeal to heaven. That is, they may resist their rulers based on an unwritten law superior to the rulers’ law:

. . . where the body of the people, or any single man, is deprived of their right, or is under the exercise of their power without right, and have no appeal on earth, there they have a liberty to appeal to heaven whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have by the constitution of that society any superior power to determine and give effective sentence in the case, yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves, which belongs to all mankind, where there lies no appeal on earth, viz. to judge whether they have just cause to make their appeal to heaven. (Id.)

Such an appeal would be ineffective if heaven were bound by the rulers’ laws, Locke here says. Instead, heaven judges the people’s case “by a law antecedent and paramount to all positive laws of men” – natural law.

So our nation’s first navy sailed under a flag that proclaimed our rights under natural law.

References to God or heaven in our nation’s founding documents, or even on its flags, are not necessarily indicia of its founders’ intent to form a Christian nation.  Natural law, while it was coherent enough for a navy to grasp, was not as simple as that.

[The above detail is from an illustration in an 1885 American high school textbook.]

My father and I spent this year’s Beach Week on each other’s history turf, he reading Doris Kearns Gooodwin’s Team of Rivals: The Political Genius of Abraham Lincoln, and I reading (or rather listening to – I’m a recent convert to Audible.com‘s unabridged readings) Lynne Olson’s Citizens of London: The Americans Who Stood with Britain in Its Darkest, Finest Hour. Each had read the other’s book, so we had a couple of good conversations, one based on each book.

Pop has read at least a hundred books on World War II, I’m sure, but I usually don’t take to them except for biographies. But the Founders and Lincoln – I love that stuff. And Citizens of London, though set in World War II, features a fellow Lincoln lover, a boarding-school teacher who has the lads over evenings to discuss Lincoln and Jefferson. Despite his shy ways – his audiences are always embarrassed for him because of his long, awkward pauses during speeches – Gil Winant also becomes a World War I fighter pilot, New Hampshire’s all-time favorite governor, the first head of the Social Security board under Roosevelt, and the head of the International Labor Office until 1941, when Roosevelt appoints him as Ambassador to Great Britain, a post he holds until 1946.

Winant, whom I had never heard of until this book, is Lincoln without the guile. Like his hero, Winant is a Republican who does as much as he can for labor, introducing legislation to limit factory workers’ hours and winning passage of a state welfare program that prefigures the New Deal. He even has Lincoln’s honest, keen face, his disheveled dress and hair, and his piercing gray eyes. Winant’s speechifying has the same effect as Lincoln’s at the end as well as the beginning, too: his audiences’ embarrassment usually turns to wild cheers after hearing out his honest and well-reasoned idealism. But, while Lincoln’s ambition is “a little engine that knew no rest,” according to Lincoln’s law partner Billy Herndon, Winant gives up his political ambitions by turning his support for Roosevelt’s Social Security program into a national crusade, to the consternation of his fellow Republicans. His unqualified support for Roosevelt’s New Deal ends the nascent movement to nominate him for president in 1936.

Winant becomes Britain’s all-time favorite American ambassador for the same reason he’s New Hampshire’s all-time favorite governor: he’s humble, hard working, and connects with common people. He sometimes puts off meetings with dignitaries in London so he can finish talking with the lowest classes of people there. When Britain’s war effort is threatened by a miners’ strike, its government calls on Winant, who convinces the miners to return to work. But he’s loved principally because he does not doubt Britain’s ability to fend off Hitler, he does nothing to avoid the hardships and danger associated with the bombing that London is subjected to for much of the war, and he does what he can to relieve their plight. He even goes broke giving his money away to the British poor. Along the way, he does what he can to support Churchill despite Roosevelt’s frequent coolness to the prime minister, and he champions the Mustang P-51B bomber, which turns the tide of the air war in Europe enough to help ensure a successful D-Day invasion.

I enjoy biographies of three or four people like Citizens of London and Team of Rivals (and two of my other favorites, Merton & Friends: A Joint Biography of Thomas Merton, Robert Lax, and Edward Rice and The Great Triumvirate: Webster, Clay, and Calhoun). The author of such works usually contrasts her subjects to understand them better. Olson contrasts Winant (implicitly until the book’s end) with fellow Americans Ed Morrow, the CBS broadcaster who revolutionizes radio news during his nightly broadcasts from London and elsewhere in the European theater, and Averell Harriman, the son of a railroad robber baron who serves as America’s Lend-Lease administrator in Britain during the war. Murrow is almost as idealistic, almost as beloved in London, and just as uncaring about his personal safety as Winant. Harriman comes across as just has hardworking as Winant and Murrow, but he is more ambitious and cunning, marginalizing Winant before Roosevelt and doing what he can to look out for his own future.

Harriman blossoms in the tough, non-idealistic nationalism that takes hold of postwar America, emerging as a top-level negotiator and diplomat under Presidents Truman, Kennedy, and Johnson. For Harriman, World War II is only a stepping-stone to a future in which he can finally escape the shadow of his father’s success and reputation. Neither Winant nor Murrow transition well to prosperity- and Cold-War obsessed America, though. Winant suffers aimlessness and depression, and he commits suicide in 1947. Murrow gets rich and eventually leaves CBS after it treats its news division as something like a hobby in the 1950′s, but he feels acutely the incongruity between the ideals and suffering he lived through in wartime London and the riches and insouciance of postwar America.

Citizens of London goes beyond its three principal protagonists, taking in many of the events and policies that define Anglo-American relations before, during, and after the war. It wasn’t until the end of the book that I understood the book’s entire scope, which should have been obvious to me from the title. The book is principally about London’s citizens: a people who make sense of class distinctions even as they fight hand-in-hand for six years to repel and defeat Hitler, and a people whose suffering serves as a kind of chorus to sort out not only the book’s protagonists but also Churchill, Roosevelt, and other actors in Europe’s wartime theater.

Posted August 9, 2010.

I am a Whig, perhaps the last member, after Jack Benny’s death, of the American Whig party that existed until the late 1850’s. A party of also-rans, a party that never got its real leaders elected president.

As much as I can relate to the Whigs’ political failures, I am a Whig mostly because I wish I could have been a Federalist. “Then why not say you are a Federalist, and be done with it?” I hear a reader ask rhetorically. “The Whigs are no less defunct.”

Yes, but the distinction lies with their respective projects. The Federalists built something, and they wanted to build more. Most Whigs just wanted to return to something the Federalists started. I have the latter political instinct – the instinct to look back and to recover. That’s the main reason I relate to and revere the Whig Lincoln more than the Federalist Washington.

“Then why not say you are a Democrat or a Republican?” you might ask. “One can see Federalist influences in both parties.” But I see mostly nineteenth century Democratic-Republican leanings in both of our current major parties. Today’s Democrat vs. Republican isn’t Hamilton vs. Jefferson, you know. It’s kind of Jackson vs. Calhoun, an intra-party squabble. The views of today’s dominant American political parties are mostly derived from what Madison in Federalist No. 10 called “interest.” But their ideologies – to the extent they have consistent ideologies – are similar; in fact, they complement each other. The Democrats’ historicism, which dominates the social science curricula in many undergraduate programs today, prepares us for the Republicans’ law-school positivism. At least with regard to the parties’ ideologies, I agree with George Wallace’s assessment: “There’s not a dime’s worth of difference between the Republicans and Democrats.”

So to explain why I’m a Whig, I must first explain why I wish I were a Federalist. My first fourteen reasons do that, and my remaining reasons explain why I like the Whigs without regard to the Federalists, too.

1.

Most Federalists opposed the inclusion of a bill of rights in the Constitution. They did so neither because they didn’t recognize the rights (they did), nor because they were afraid that any enumeration of rights would limit rights to those recognized (though they were (afraid of just that)). Most Federalists opposed the adoption of a bill of rights principally because they believed that people would eventually come to see a bill of rights as the source of their rights.

2.

It’s not the Federalists’ fault. It’s all the Federalists’ fault.

3.

The Federalists were bumbling politicians, as a whole. They overplayed their hand following the XYZ Affair with the thirty-five bumbling arrests under the Alien and Sedition Acts. They were, therefore, the first party to nationally snatch defeat from the jaws of victory. I can relate.

The High Federalists lived in a shrinking sectional echo chamber. They made life miserable for the moderate Federalists living south of New York. I get that, too.

4.

When I was growing up in Tidewater, Virginia, the whole state shared the same telephone area code – 703. Now my county alone has three area codes. Mine is 703.

5.

The theme of the introductory Federalist essay reminds me of the theme of the Gettysburg Address:

. . it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government by reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

I think Madison, Hamilton, and Lincoln were the big names who were the most consumed with the central problem of our democracy, then and now: the capacity of a people to govern themselves. (Madison was a Republican, of course, but he was a Federalist when it counted most – when Hamilton adroitly applied the term to describe those in favor of the 1787 convention’s proposed constitution.)

6.

Adams was as disheveled as Jefferson, but he had no instinct for PR. There’s an innocence about Adams that makes Jefferson look even more like a crocodile.

7.

John Marshall.

8.

Marshall gets two numbers. He’s one of those “but for” guys: but for Marshall, we might not have ratified our Constitution, and we might not have avoided war with France. He fought with great distinction under Washington and Daniel Morgan, but his father, Thomas Marshall, gets the earliest “but for”: but for his slowing Cornwallis at Brandywine, we most likely would not have won the Revolutionary War (Jean Edward Smith’s John Marshall: Definer of a Nation).

John Marshall, George Washington, and a few others gave Federalism a share in Virginia’s past, for which, as a Virginian, I’m grateful. Marshall was elected to Virginia’s ratifying convention and to Congress from a heavily Anti-Federalist district in Richmond because the people there liked him and cared more about his character than his views. I like that, too.

Marshall turned the Supreme Court from a national joke into a respected branch of government. In the process, he defined the Constitution’s relationship to law and society. Smith writes:

. . . the Marshall court established the ground rules of American government. The Constitution reflected the will of the people, not the states, said Marshall, and the people made it supreme. That Federalist concept provided the basis for the constitutional decisions of the Marshall era. It was bitterly contested at the time; in many respects it lay at the root of the Civil War.

(As John C. Calhoun did years later, Patrick Henry and other Anti-Federalists disliked the Constitution’s “We the people” preamble, preferring “We the states” instead. Even as early as 1788, nationalism was seen as a threat to states’ rights, and states’ rights was linked to slavery. Henry’s frequent refrain against the Constitution during the ratification debate was, “They’ll free your niggers.”)

Marshall took over a Federalist bench when he was appointed Chief Justice at the end of the twelve years of Federalist administrations. Twenty-four years of Republican rule later, it was still a Federalist bench, thanks to Marshall’s leadership skills, his legal acumen, and his insistence that the justices share living quarters during term. And all but a relative handful of the court’s opinions under Marshall’s long stewardship were unanimous. Imagine anything close to that today!

Marshall loved Jane Austin’s novels. I mean, he was the whole package.

9.

Okay, three numbers. As Hadley Arkes points out in Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge 2010), Marshall sometimes went out of his way to base his Supreme Court opinions on natural law principles instead of on specific constitutional language. In other words, Marshall was no legal positivist. (A legal positivist believes only in the law posited by a sovereign.)

Marshall seemed to believe what most of the Founders seemed to have taken for granted:

If there is no natural law, there are no natural rights; and if there are no natural rights, the Bill of Rights is a delusion, and everything which a man possesses – his life, his liberty and his property – are held by sufferance of government, and in that case it is inevitable that government will some day find it expedient to take away what is held by a title such as that.

(From Harold R. McKinnon’s book, The Higher Law, 1946.)

10.

Jefferson, not Nixon, pioneered the Southern Strategy:

. . . the prominence of slaveholders among the Jeffersonian critics of Federalism is more than an irony: slaveholding was, in fact, central to the preservation, not just of a racial hegemony, but of a ruling class among whites in the South after the Revolution, and that ruling class preserved itself in the face of revolutionary egalitarianism only by pretending that slavery had, in fact, created a kind of white egalitarianism. By equating the slaveholder and the rural farmer as “agriculturalists” and allying them together in a white racial alliance which ensured that enslaved blacks could never become the “equals” of whites, Jeffersonians like Randolph, Taylor, and Jefferson himself ensured the support of white farmers, who cared far more about keeping blacks in bondage than about leveling white elites. They looked, in other words, to slavery to preserve gentility; and then insisted that the presence of blacks made all white men, ipso facto, into gentlemanly equals. Hence, in the 1790s, rural farmers in Virginia and Pennsylvania found themselves lining up behind a slave-holder in order to oppose merchant “aristocrats”; and in the 1830s, Northern workers would oppose those same merchant “aristocrats” and pay the same price by following Andrew Jackson and acquiescing in Southern slavery.

(From Allen C. Guelzo’s article “Learning to Love the Federalists.”)

11.

The Federalists believed in the political oversight of the market economy. Guelzo again: “[Jefferson] abandoned the Federalist goal of a strong mercantilist state and detached the economy from political oversight at just the moment in the great market revolution when that oversight might have done it some good.”

12.

I don’t dislike Jefferson. Honest. While I spent my evenings sleeping in the library of the university he founded, Dumas Malone was two stories above me, almost blind by then, dictating the last of his six-volume biography of Jefferson. I joined my classmates in referring to “Mr. Jefferson” in hushed tones as if he were just out of earshot. You’ve got to visit Charlottesville and Monticello just to feel his presence.

Jefferson’s great enemy Hamilton paid him the highest and most accurate compliment, I think, describing him as “a man of sublimated and paradoxical imagination.” Anyway, I can’t figure the guy out, even after reading four and a half of Malone’s volumes.

13.

The Federalists were the only actively anti-slavery party in America to hold power. (The 1850’s – 1860’s Republicans were anti-slavery, but in sentiment more than in policy. (I take Lincoln at his word on this.))

14.

I’m a republican more than a democrat. (Small r, small d.) The threat of majority faction scares me more than the threat of aristocratic rule. Madison’s checks and balances have saved us more than either side in a given debate would ordinarily acknowledge.

The Anti-Federalists wanted a more democratic form of government, one that made the other branches more accountable to the legislative branch. They wanted more representatives per capita, they weren’t wild about bicameralism, and they wanted term limits.

But I agree with Madison in Federalist No. 10: direct democracy is not an ideal that the Constitution aspires to, or should. I prefer the Constitution’s representative democracy and its tensions between the branches to direct democracy for the reason Madison preferred them: direct democracy would lead to majority factions – permanent arrangements of majority oppression of minorities.

15.

The last long stretch my political party has been in power was from 1789 until 1801. I don’t think the Federalists or Whigs or anything like them will ever be in power for longer than a term or two at a time. The reason comes down to this quote from Book 1 of Aristotle’s Nicomachean Ethics:

. . . What it is that we say political science aims at and what is the highest of all goods achievable by action[?] Verbally there is very general agreement; for both the general run of men and people of superior refinement say that it is happiness, and identify living well and doing well with being happy; but with regard to what happiness is they differ, and the many do not give the same account as the wise.

I’m not up for Aristotle’s class-structured government, and Aristotle’s teleological understanding of happiness is a tough sell in a democracy dedicated to the proposition that all men are created equal. But I agree with his teleological understanding of happiness, and I agree that, usually, “the many do not give the same account as the wise.” I think Lincoln agreed with both, too. In fact, I think he lived out this paradox. A democracy is blessed if its leaders, during a critical time such as our Civil War, demonstrate wisdom consistent with a high notion of what Jefferson called “societal happiness.”

In the late 1850′s, the Republican Party inherited the Whigs’ role of representing a kind of American aristocracy. The Whig Party’s notion of aristocratic duty was less class structured than Aristotle’s, and while it generally represented the country’s labor and mercantile interests, I think it sometimes rose to Aristotle’s and Jefferson’s notions of societal happiness.

Since Lincoln’s death, though, the Republican Party has frequently confused money for the wisdom Aristotle alludes to in my Nicomachean Ethics quote above. Americans themselves frequently confuse money and wisdom, which accounts for a lot of the Republicans’ success at the polls. The Preacher acknowledges the similarity but still insists on a distinction:

For wisdom is a defence, and money is a defence: but the excellency of knowledge is, that wisdom giveth life to them that have it. [Ecclesiastes 7:12]

So, for me, small r, not big R.

16.

The old battles are the only battles worth fighting, the ones that never get won: Jefferson vs. Hamilton, Jackson vs. Clay, Douglas vs. Lincoln. You get clarity today only if you can see a political fight in those lights. If you can’t, you can pretty much bet the problem will take care of itself or hasn’t really begun to manifest itself. Today’s movements – even the Tea Party – will fade if they don’t line up on one side or the other of an old battle. In one sense, a big political problem we have today is that we don’t understand any of the old arguments, that we don’t see anything in terms of the old fights.

17.

Something about the Whigs’ aversion to territorial expansion resonates with me, even though it contradicted Madison’s reasoning in the Federalist that the bigger the territory, the better the republic, and even though Hamilton was the original advocate of something like Manifest Destiny. Jefferson through the Louisiana Purchase must have co-opted for the antebellum Democrats the Federalist desire to rule the hemisphere, leaving Lincoln to demand on the House floor (to general derision) that President Polk mark the exact spot where Polk had claimed American blood was spilt in his justification of the Mexican War.

18.

President Webster. President Clay. You gotta believe.

19.

I like to think I would have supported the temperance movement, the abolition movement, and the suffrage movement, as Lincoln did. These movements were easy targets for Democrats, but many Whig politicians kept uneasy alliances with them. These movements were end runs around Jefferson’s separation of church and state, and their takeover of “the goals of secular rationalism” made Lincoln afraid that “extreme expectations of worldly perfection would engender extreme political solutions” (Harry V. Jaffa, Crisis of the House Divided, at 244).

I suppose that, since the Founding generation, all successful national politicians have surfed some dangerous waves, and were I a nineteenth century politician, those might have been my waves of choice.

20.

I believe in internal improvements. I also think we’re deliberately sabotaging passenger rail.  The Whigs wouldn’t have countenanced it.

21.

Like many thoughtful Whigs, Lincoln found the best of Jefferson and made it his own. Under Lincoln, “all men are created equal” became the proposition that the nation was dedicated to.

I believe that, in reading the Constitution, one must distinguish between its compromises and its truths, and I believe that its truths are the truths of the Declaration of Independence. This view, enshrined in the Gettysburg Address, had been standard Whig doctrine for years, according to Guelzo in his Lincoln biography, Redeemer President. The Democrats back then didn’t subscribe to this view of the Constitution, and neither today’s “strict constructionism” nor its “living Constitution” is based on it.

22.

Like Obama, I don’t get the Scotch-Irish, and they don’t get me.

My ancestry is largely British, and I grew up in Virginia’s Episcopal Church, which had a small following in my blue-collar, shipbuilding hometown. Bruton Parish Church in nearby Williamsburg wasn’t a tourist attraction for my family but a church – a religious touchstone, in fact.

“It is more than curious that all the greatest Whig names – e.g., Adams, Webster, Clay, Harrison and Tyler, Taylor and Fillmore, and Lincoln – were of predominantly English ancestry. . . . from Washington to Lincoln, the Federalist-Whig-Republican presidents are exclusively of English ancestry” (Jaffa, supra, 72 – 73).

But the Democrats were anything but British. “Jackson and Polk were both of Scotch-Irish descent, Van Buren Dutch, Buchanan Scotch, among the presidents. Even Jefferson traced his ancestors to Wales. Calhoun was of Scotch-Irish stock . . . Douglas, of course, bore one of the most famous of all Scottish names” (73).

The English betrayed the Federalist cause. They did it not so much by their belligerence leading up to the War of 1812 but by their persecution of the Scots and the Irish who moved to the American West largely as a result of it. Professor Wilfred E. Binkley believed that “The nucleus of Jacksonian democracy was an ethnic group, the Scotch-Irish stock. These were descendants of the unfortunates . . . harried from their Ulster homes and finding refuge in the American wilderness, where they nursed an undying hatred of their British persecutors.” Jackson lead them to victory at the Battle of New Orleans in 1815 before they lead him to victory at the polls years later.

The Scotch-Irish resented the Whigs’ mixture of Northern mercantile interests and Northern evangelism. Today’s Scotch-Irish seem to support the Republican’s championing of big and small business, though, and they seem to have inherited, more than most other stock, the Whig’s mixture of evangelism and politics, though of a decidedly more politically conservative variety.

Jefferson and Jackson understood the Scotch-Irish, and the Scotch-Irish helped to make the Democrats the dominant political party for the decades before the Civil War.

23.

I hate an organized party. (Oxymoron: party discipline.) The Democrats’ lock-step organization would spook the Whigs every time.

24.

The most thoughtful Democrats read the Whig newspapers. Those papers were quite superior to the Democrats’ papers, I understand.

25.

If you believe in the American Dream, you must consider the Whigs, which was the only party in history to have something close to a monopoly on it.  (The Democrats couldn’t do too much to support free labor: they were too tied to the “Slave Power.”)

26.

Douglas and Lincoln both fought hard to keep the Union together, though each accused the other of hastening its division. Douglas’s impulse was to defuse the slavery issue by distracting America through territorial expansion and the export of republicanism (“Manifest Destiny”) and by making slavery the subject of territorial votes (“Popular Sovereignty”). I distrust expansion, particularly expansion tinged with evangelistic fervor, and popular sovereignty was a forfeiture of natural law to positivism.

Lincoln’s impulse was to face the slavery issue squarely, as he began to do in Peoria in 1854:

Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution . . . Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it . . . If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving.

I suppose Lincoln is my apotheosis of the inward-looking leader, the leader who, unlike Jimmy Carter, could call for a national, or at least a sectional, soul-searching and still win an election.

Lincoln’s Peoria speech was Whiggery at its best. Befitting the Whig party, though, Lincoln, and the rest of the party’s leaders, would be gone within four years. It’s been lonely around here ever since.

Posted January 15, 2011.

I was reading Genesis’s account of creation through Everett Fox‘s translation this morning, and this verse made me grin:

At the time of YHWH, God’s making of earth and heaven,
no bush of the field was yet on earth,
no plant of the field had yet sprung up,
for YHWH, God, had not made it rain upon earth,
and there was no human/adam to till the soil/adama –

If you’re used to Fox’s emphasis on both literality and expression, unique to biblical translations in English, you know from that last line that he wishes to get across in English the wordplay of adam / adama but can’t in a way that satisfies him. So you find the footnote, which says:

The sound connection, the first folk etymology in the Bible, establishes the intimacy of humankind with the ground (note the curses in 3:17 and 4:11). Human beings are created from the soil, just as animals are (v 19). Some have suggested “human . . . humus” to reflect the wordplay.

Wordplay. Perhaps some of the more humorless aspects of Protestant theology could be traced to the translations we Protestants have used for centuries. One can’t take more than a couple of steps into Fox’s bright jungle before being ambushed by wordplay, but one can speed over the paved surfaces of entire modern English Bibles without being jostled by one pothole of paronomasia.

Fox’s approach to translation, as he says in his preface to The Five Books of Moses, is “to echo the style of the original,” to present “the text in English dress but with a Hebraic voice.”  The approach helps counter centuries of favoring meaning over expression as if they were, in fact, separable.  Our English translations have quietly reinforced the idea that we can discard the stories and the way they’re told after we’ve extracted a doctrine or at least a lesson from them.

It’s hard to feel the fun in the above verse from the first chapter of Genesis and not feel also the ways its wordplay may shade the verse’s “meaning.”  Indeed, as accustomed as we Western Christians are to ferreting out meaning from even the most obscure biblical text, our blind eye to the Bible’s humor may deny us not only literary charm but also theological sense.  I remember spending an hour in debate with a friend over whether Jesus is being sardonic as he opens his explication of the parable of the unjust steward (Luke 16:1-13):

And I say to you, Make to yourselves friends of the mammon of unrighteousness; that when ye fail, they may receive you into everlasting habitations. (Webster’s)

To me, the parable preceding this explication is both simple and wickedly playful. One step ahead of his master’s reckoning, the unjust steward goes to his master’s debtors and liquidates his master’s loans for pennies on the dollar so he’ll have a job with one of his master’s debtors once he’s dismissed. The master, surprisingly, commends his steward’s cunning and duplicity, and Jesus, in the above quote, echoes the master’s commendation somewhat ominously as he transitions out of the parable proper.

My friend’s and my disagreement turned on whether the Lord was being facetious, a possibility my friend could not allow in principle. But the parable doesn’t work otherwise. My friend was left to spiritualize the steward whom Jesus labels “unjust.” Jesus, my friend said, anticipates that we, too, will “fail,” and he asks us to become like the grasping and dishonest steward – “wise as serpents,” as he puts it elsewhere in the Gospels. My friend therefore assumed that Jesus’ “everlasting habitations” amount to worldly prosperity and, finally, heaven. I hear Jesus hinting darkly at hell.

In my view, my friend’s refusal to recognize the Lord’s satire, his sardonicism, sucked the sharp elbows right off of the parable for him.

I enjoy the master’s rueful humor and the dark overlay Jesus, by echoing it, gives it, but I like also how Jesus’ commentary doesn’t explain the parable away as a Western sermon or literary critique might. Instead, Jesus’ explication, taken in full (I quote only its opening), adds more of the koan-like richness I find in the parable itself.

The Bible often draws lessons from its stories, but it doesn’t discard the stories in the process. Genesis itself, Fox’s version or otherwise, is almost devoid of commentary and rarely draws morals from its stories. The nearest thing I’ve found by way of commentary in Genesis is the conclusion to the narrative of Esau’s exchange of his birthright for his brother’s meal: “thus Esau despised his birthright.” The line seems incongruous to me in the lean body of Genesis’s narratives.

I don’t suggest that Jesus’ facetiousness would be any more apparent in the parable’s Greek, but I wonder if our translations’ usual emphasis on the original’s literal meaning over its means of expression, whether that expression involves sound or humor or the stories themselves, has served to make our theology humorless and overly theoretical – and sometimes just wrong. In other words (and I know this connection may be a bit attenuated), I suspect that our literal translations predispose us to an unnecessarily systematic and shallow or grim theology, and that our translations and the modern theologies that attend them combine to keep us from discovering and enjoying the Bible’s humor and playful expression.

°°°

We Westerners divorce the “what it says” from the “how it says it” not only in biblical hermeneutics but  also in political theory and in literary criticism. I’m beginning to see that examining this cheerless separation of sense and expression is a central preoccupation of my blog, uniting my frequent screeds on hermeneutics (part of my “Devotionals” section), political science (“Civil”), and literary criticism (my “Critical” section, mostly). One of my earliest posts quotes a favorite line from Robert J. Ray and Ann Ray’s The Art of Reading: A Handbook on Writing that attacks the separation of meaning and expression from a literary standpoint:

The best prose is that which is so thoroughly at one with what it expresses that one sentence generates another. The thoughts, so called, have their existence in the turn of a phrase and cannot be extricated from it.

I think that’s good biblical hermeneutics and maybe a good principle of statutory and constitutional construction, too.

The connections I see among religious, political, and critical overemphasis on literality may really exist.  I think Western civilization’s penchant for disembodied theology has lead to its similar weakness for disembodied political theory. Like the Southern secessionists before us, we have forsaken the Declaration’s grounding of mankind as children of God, equal in their Father’s eyes, and we have hewed out instead a blind adherence to the Constitution’s letter, as if the Founders had ever intended such a thing. I also wonder how much of the destructive twentieth-century political ideologies (communism, fascism) grew in part out of Protestantism’s overly systematic approach to theology. (The opposite is also quite true: in the West, theology mirrors philosophy. See Nancey Murphy’s Beyond Liberalism & Fundamentalism for a detailed description of how the liberal and fundamental strains of Protestantism fell into line with opposing philosophical responses to David Hume.)

Harry Jaffa has a point: modern philosophy is “unreasonably skeptical and unreasonably dogmatic.” (Crisis of the House Divided, preface at iv.) The same quote describes Western religious life, I think, if not its theology. I wonder if the skepticism and the dogma feed each other, the dogmatic reliance on extracted meanings serving to mask our unbelief – an unbelief fostered, in turn, by our failure to live in the stories.

When we insist on seeing a piece of literature as an object, as New Criticism does, we cut it loose from historical and biographical accidents that may otherwise drown our ability to hear its sound and drink its sense. But New Criticism ultimately destroys a piece of literature by saving it. Objects, after all, are lifeless, and dead things invite scientific analysis. On the religious front, the objectified, dead text and the age of science have led to literalism, the Western religious mind’s answer to science’s objectivity. In Paul’s words, we have divorced the letter, which “killeth,” from the spirit, which “giveth life.” Wouldn’t it be better to risk experiencing the God behind the Bible’s words? Wouldn’t it be better to hear a poem as a cry, as Walter J. Ong insists we do – as a connection between a living, or once living, poet and a living reader or performer – as a potential intimacy?

A return to the Bible’s, the Constitution’s, or any poem’s text, then, isn’t a call to humorless literalism or to a strict constructionism that can’t distinguish between letter and spirit. It’s the slow and repeated enjoyment of a text that won’t be squeezed for, and then discarded in favor of, some dogma or other envenoming essence. It’s an emphasis on story and language and oral expression that might have us, like the Lord, speaking not in theories but in parables, and grounding ourselves in the serious play of prosody.

I sent the following letter to Virginia’s state senators and delegates today.

The Virginia General Assembly this month will be one of the first state legislatures in the Union to take up the proposed “repeal amendment” to the United States Constitution (hereinafter, “amendment”) under which two-thirds of the state legislatures may overturn a federal law or regulation. The amendment is impractical and inefficient, and it would overturn more than just specific federal laws and regulations. It would disrupt the carefully balanced governmental structure the Constitution’s Framers set in motion in 1789. Virginia’s legislature would be ill advised to approve the call for a constitutional convention to ratify the amendment.

Some of my fellow Virginians probably feel something like pride of authorship in the amendment, which has gained the support of key officeholders in at least twelve state governments. After all, some Virginians got the ball rolling by contacting Georgetown Law Professor Randy E. Barnett about the amendment, which he had proposed in a 2009 Forbes.com column. Mr. William Howell, the Speaker of our House of Delegates, co-authored the Wall Street Journal op-ed piece with Professor Barnett that first gave the amendment considerable national attention. Governor McDonnell and Attorney General Cuccinelli are both on record as supporting the amendment. But pride of authorship should have no part in your chambers’ respective deliberations over this amendment.

The amendment would shift the federal balance of power away from the people to the states. As a practical matter, two-thirds of the states hold less than a third of the country’s population. Therefore, a small majority in each of those smaller states could veto the will of the vast majority of Americans as expressed by their representatives in Congress. Virginia, of course, is the twelfth most populous state, so the amendment would lessen the voice of Virginians in a federal system.

State legislatures have no business deciding federal issues, and taking up federal issues would consume an inordinate amount of a state legislature’s time and resources. As you know from experience, Virginia’s legislature, like that of every state in the Union, has enough state and local issues to keep it busy each legislative session. Every federal law has its detractors, and the number and strength of those detractors would require that each federal law be the subject of rehearings before at least two-thirds of the Union’s state legislatures.  Imagine the time and expense of such a system.

Imagine also the uncertainty that would attend the passage of any federal law. Although every law is subject to repeal by the legislature passing it, few assume that the same legislative body passing a law would soon repeal it. The amendment, though, would put every federal law before fifty separate legislatures for consideration. The reliability of any federal law would never be settled, for a two-thirds vote might be obtained at any time after the law’s passage.

This uncertainty would extend even to federal administrative regulations and federal case law generated by the United States Supreme Court on down. To take their new role seriously, the state legislatures would have to gain expertise in the fields in which the federal agencies and federal courts practice. Upon obtaining that expertise, each state legislature would have to have each matter reheard. I assume rules would be promulgated and experts would be hired for this purpose.  Imagine the cost in the state legislature’s time and the cost to the taxpayers to have these matters reheard or relitigated, as the case may be.

The amendment would transform our federal system into something worse than the weak and inefficient Articles of Confederation the people of the United States struggled under for over a decade before ratifying the Constitution. The Articles of Confederation gave each state an equal vote on federal questions, and it required that nine of the thirteen states (around sixty-nine percent) vote in favor of most bills for them to become law. Although the amendment would require a much smaller percentage of states to approve of a federal law, it would give the final word on the law to the state governments and not to any form of federal government. The state legislatures would have the last word on every federal statutory law, case law, or regulation. The amendment would turn our federal government, including Congress, administrative agencies, and federal courts, into an advisory body – a kind of commission serving fifty separate legislatures – and its laws and regulations in the long run would amount to mere recommendations the states could choose to adopt or ignore. This arrangement may seem flattering to the state legislatures considering the amendment, but it does the people no good.

The amendment would be a boon for lobbyists, however. The federal lobbying industry would field representatives in all fifty state capitals as well as in Washington. And only the largest moneyed interests would be likely to afford to support or counter a Congressional act or an administrative regulation through the labyrinthine route to its eventual approval or repeal in fifty different statehouses. The voice of the people would be diluted.

It is worth remembering that the Founders saw the federal government as the product of the people and not of the states. Although the Constitution was ratified state by state, the Framers made a point of requiring a special convention in each state for the purpose of ratifying the Constitution so that the people, and not the state legislatures, would be said to have ordained and established the Constitution. In The Federalist Papers, James Madison made a distinction between the people and the states when he countered arguments that the Constitution would take away too much of the states’ powers:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? [Federalist No. 45]

As Professor Harry V. Jaffa, author of Crisis of the House Divided (Chicago 1959) and founder of the conservative Claremont Institute, has demonstrated, the compact that created the American people was the Declaration of Independence and not the various English colonies that the states became the heirs of. That people, and not the thirteen former colonies, ratified the Constitution. “We the people” was no opening flourish but was substantive language argued over during the ratifying conventions, including Virginia’s.

The amendment threatens democracy’s most fundamental expression of the people’s sovereignty – the principle of majority rule. Its deleterious effect on majority rule stems from its links to nullification and to secession.

The amendment, like every attempt at state nullification of federal law since the nullification crisis of 1833, is an attack on majority rule. Notice how similar the amendment is to John C. Calhoun’s South Carolina doctrine, as described by Jaffa in his book A New Birth of Freedom (Rowman & Littlefield 2000):

By virtue of the reserved rights of the states, South Carolina could “nullify” the tariff within its boarders. Of course, if South Carolina did not pay the duties, neither would any other state. This meant that the operation of the challenged law would be held in abeyance until a convention of the states, acting by a three-fourths majority (the same that would be required for an amendment), would decide upon its constitutionality. (278)

In essence, Calhoun’s doctrine differs from the amendment only in the preliminary injunction it grants against federal law pending the states’ decision.

The logic of allowing the states to nullify acts of Congress is the logic of secession. What Lincoln pointed out about secession during his First Inaugural Address applies also to the amendment:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

If the lesser (state government) can nullify the greater (federal government), then majority rule is threatened. The amendment’s logic is secession’s logic downstream, too. Just as Union supporters asked the seceding states of the 1860’s if they would consent to having their counties and municipalities secede from them, so one may ask if the states are prepared to give as well as they get. May two-thirds of the governing bodies of a state’s counties and municipalities overturn a state statute? And, further, may individuals acting in their capacity as sovereign people then overturn municipal law? The amendment’s central idea is indeed the “essence of anarchy.”

Both nullification and secession are premised on Calhoun’s doctrine of concurrent majority: Congress and state governments both must pass on federal laws. “Stated in its simplest form, the concurrent majority gives to each minority entitled to consideration a veto over the action of the government” (432). Calhoun believed that the state’s right to nullify a federal law and its right to secede (or, practically speaking, to threaten secession) would protect minority interests. Madison, the Father of our Constitution, believed that a republic founded on natural law principles protects minority rights. Calhoun’s understanding of minority rights, however, was not founded on the natural law concept of a compact made by individuals. He found no individual rights antecedent to the creation of any government. Indeed, for Calhoun, the idea that all men are created equal and have rights antecedent to a government’s existence “is the most false and dangerous of all political errors” (407). There is no basis for the doctrine of concurrent majority on which the amendment is based in either the Declaration of Independence or the Constitution. Nor could there be, as the doctrine recognizes neither individual rights nor majority rule.

This is a long letter – the longest I have ever written to any of my representatives in Richmond or Washington – but I hope it suggests the difficult issues involved in considering this seemingly simple amendment. Unlike the constitutional amendments that have been ratified since the end of the Civil War, this amendment would fundamentally alter our federal system. In so doing, it would detach our system from the practical and philosophical moorings James Madison and other illustrious Virginians and Americans tied it to over two hundred years ago in Philadelphia.

Any pride some Virginians may feel in bringing this proposed amendment to national prominence should pale in comparison to the pride Virginians might take in the Commonwealth’s role in ratifying the original Constitution. The arguments for and against the Constitution’s form of federalism had their finest airing at Virginia’s ratifying convention in Richmond during the summer of 1788. Many of Virginia’s greatest patriots and statesmen, including James Madison, Patrick Henry, George Mason, John Marshall, George Wythe, Edmund Pendleton, Edmund Randolph, and James Monroe, were present to argue for or against the Constitution. It was a close vote, but the Constitution beat out the Articles of Confederation. The assemblage that would presume to disrupt the Constitution’s checks and balances in Richmond this winter would not look particularly distinguished by comparison.

Texas Governor Rick Perry’s recent suggestion that Texas might feel obligated to secede from the Union over President Obama’s proposed tax plan brought the Civil War back to many Americans’ minds.  Seeming to confuse his wars, though, the governor made his remarks at the Austin version of a “tea party” rally, one of a series of “Taxed Enough Already” rallies popularized by Fox News and held on this year’s Tax Day.  (Hendrick Hertzberg has a great satire in this week’s New Yorker on Perry’s remarks, by the way.)

The governor broached secession by incorrectly stating that the “deal” admitting Texas to the Union in 1845 included a right to secede.  He went on to say:

My hope is that America, and Washington in particular, pays attention.  We’ve got a great Union.  There’s absolutely no reason to dissolve it.  But if Washington continues to thumb their nose at the American people, who knows what might come of that.

The tax plan that would serve as the ostensible reason for Texas’s second secession would, starting two years from now, increase the top marginal tax rate for those making over a quarter million dollars a year from 35 to 39.6 percent.  The proposal also would decrease income taxes for Texans making under that amount, but the proposed tax cut didn’t get much play at the Austin rally.

Texas last seceded from the Union on March 4, 1861, the day Lincoln was first inaugurated.  The immediate cause of the Southern states’ secession was the election of the nation’s first “Black Republican” president, and based on exit polls showing Southern white males voting disproportionately against Obama this past fall, I wonder if the election of the nation’s first African-American president had anything to do with the governor’s thinly veiled threat.

Texas is a special case, I suppose, having being a sovereign nation for a decade preceding its admission into the Union.  According to the Hertzberg article, a recent poll shows that a third of Texans support secession, and without researching it, I suppose that the current percentage does not reflect a great increase in that sentiment since Obama’s election or his proposed tax cut.

Still, the concept of secession should be troubling to Americans, not just from a political point of view but also from a philosophical one.  Simply put, the argument in favor of a right to secede is the argument against a right to revolt, and the right of revolution – a right we must hold to now as much as we did in 1776 – is a basis of our political liberty.

The political problem with secession is simple.  If a state can secede instead of submit to the lawfully exercised will of the country’s majority, then majority rule is defeated and, as Lincoln put it at Gettysburg, a government “of the people, by the people, for the people” will have perished from the earth.  A state claiming a right to secede permits by its example any political subdivision thereof to follow course, and the result will necessarily be, as Lincoln pointed out during his first inaugural address, either anarchy or despotism in the long run:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Secession, then, doesn’t work well as a practical political doctrine.

Worse than the dysfunction inherent in secession, however, are its counterrevolutionary implications.  John C. Calhoun, the chief philosopher of secession, made the case for secession by discovering “state rights” in place of the individual rights, including the right of revolution, that were of utmost importance to the Founders.  As Harry Jaffa puts it in A New Birth of Freedom, “It was Calhoun’s writings . . . that transformed the question of individual and minority rights into the question of state rights” (281).

Calhoun’s attack on individual rights started with his attack on the Declaration of Independence’s ideals and on Locke’s ideas expressed in his Second Treatise that forms the basis for the “all men are created equal” in the Declaration and the basis for similar language in eight American colonies’ prolegomena to their Revolutionary-era constitutions.  Calhoun discounted Locke’s “all men in the state of nature are free and equal,” claiming that man, being a social animal, “cannot exist in such a state.”  Calhoun disagreed with Locke – and, indeed, with Aristotle – by recognizing no prepolitical state for humankind (Jaffa 410).

Calhoun’s choice, of course, was to view Locke’s “state of nature” from an almost anthropological standpoint, much as Rousseau viewed his concept of a “state of nature,” while the Founders, Locke, and Locke’s antecedents referred to man’s “state of nature” from an ontological standpoint.  Calhoun, then, did not believe that man entered into society by a voluntary association but by necessity.  Calhoun believed that the individual therefore has no rights that attach to her at birth:

Instead then of all men having the same right to liberty and equality, as is claimed by those who hold that they are born free and equal, liberty is the noble and highest reward bestowed on mental and moral development, combined with favorable circumstances.  Instead then of liberty and equality being born with man; instead of all men and all classes and descriptions being equally entitled to them, they are prizes to be won, and are in their most perfect state, not only the highest reward that can be bestowed on our race, but the most difficult to be won – and when won, the most difficult to be preserved.

As Jaffa puts it, “In [Calhoun’s] final analysis, whatever men lack in power, they lack in right” (418).

In his excellent introduction to Political Writings of John Locke, David Wootton points out that three political philosophers covered the gamut of arguments in favor of the Whig position just prior to the English Civil War.  James Tyrrel asserted that the king’s subjects might have to rebel, “but only, he believed, to defend the principles of the established constitution.”  Algernon Sydney argued the republican position that ancient Rome, Machiavelli, and Venice’s constitution were the best models of government in place of what was threatening to become an absolute monarchy.  And Locke asserted a set of inalienable rights that have become the foundation of liberalism (14 – 15).

The Declaration of Independence, of course, deliberately echoed sentiments current a century prior to it during the English Civil War in order to best assert its case against the crown and Parliament.  In writing the Declaration and the state constitutions asserting independence, the colonists were able to choose from the English constitutional theory of Tyrrel, the republican theory of Sidney, and the liberal theory of Locke.  They all deliberately sided with Locke, asserting his famous proscription against taxation without representation, and they avowed his theory of a right of revolution against the English king.

Calhoun did not believe in a right of revolution, however.  According to Calhoun, because people have no inalienable rights, people have no right to revolt.

In a sense, since 1800 we exercise an institutionalized right of revolution every time we participate in an election.  The election of 1800 – our fourth presidential election – was the first régime change in world history accomplished by a ballot.  It came two years after Jefferson threatened a revolution through the Kentucky Resolutions.  “One might even say that the victory of the Republicans in the election of 1800 came about because of the [revolutionary] threats implied in the Virginia and Kentucky Resolutions,” Jaffa opines (416).

Jefferson believed that “the right of revolution, and the threat to exercise that right, had throughout history been the only recourse of the people against the evils of tyranny,” according to Jaffa.  The treat of revolution still functions today – a threat not subsumed by our record of peaceful elections – should even a democratically elected government act against the safety of its people.  Calhoun would disagree – ironically, since the supporters of secession in Lincoln’s time tried to take the moral high ground by fashioning themselves as the defenders of minority rights against an oppressive majority.  Instead, they were, wittingly or unwittingly, the defenders of a brand of states rights that nullified individual rights, including the right to revolt.

Calhoun’s refusal to recognize individual rights apart from the state, including a right to revolt, led to his assertion of a state’s right to secede.  Calhoun developed a theory of “concurrent majority” under which any interested minority had a veto over the federal government’s action (Jaffa 432).  Significantly, the position that would lead to the veto would be based not on reason, which Locke and the Founders believed all men had access to, but on the narrow, mutual interests of the minorities involved.  Just as Calhoun looked to Rousseau’s more anthropological notion of the state of nature to counter Locke’s ontological version, Calhoun seemed to reach for Rousseau’s version of the will in the development of his concurrent majority theory:

Except upon prudential grounds, the governed may not consent to what is intrinsically unjust, as Lincoln argued against Douglas.  The reconciliation of conflicting interests must ultimately proceed from a conception of right that is independent of the interests themselves.  But Rousseau introduced into political philosophy the idea that political justice is to be found in the form of the will, rather than in the reason that informs the will.  More than anyone else, Rousseau is Calhoun’s intellectual progenitor. (432)

Under Calhoun’s theory, because no univerally recognized rights would be involved in a secession threat, and because reason (Locke’s law of nature) is not appealed to, the minority could have its way against the majority over relatively trivial matters.

Governor Perry’s opposition to Obama’s tax plan, for instance, seems to be based on interest – the interest of those making more than a quarter million dollars a year – and not on reason.  (Opponents of Obama’s plan could rightfully make a similar assertion against the plan, too, of course.)  Interests may help legislators craft an alliance to pass a law, but interest alone was never intended to serve as grounds for revolution.  (The Founders never envisioned secession under any circumstances.  Unlike Calhoun, who believed the Union began by contract in the form of the states’ ratification of the Constitution, the Founders believed that the Union preceded the Constitution.  “We the People of the United States, in Order to form a more perfect Union . . .” (emphasis mine).) (Calhoun faced another hurdle in the Constitution’s preamble, which doesn’t begin, “We the States . . .)

Calhoun’s exclusive reliance on positive law reminds me of denominations that rely exclusively on positive theology.  Without linking positive theology with a healthy, existential understanding of God through a “negative theology” – perhaps a more mystical approach to God – positive theology tends to separate us from God and from ourselves.  Similarly, Calhoun believed that people were in no sense human without government and had no rights outside of it:

In Calhoun, there is no doctrine of individual rights apart from the positive law of any given community.  He does not recognize any criterion outside the political process to which men can appeal to justify rebellion against tyranny. (Jaffa 418)

For Calhoun, man was made for the state, just as Jesus’ Pharisees believed that man was made for the Sabbath, and not the other way around.

This is the chief problem I have with most jurists who rely almost exclusively on what they call the framers’ “original intent” in interpreting the Constitution, particularly those jurists who see their support for “states rights” as a corollary to the support of that intent.  Lincoln and his Republicans were willing to enforce the letter of the Constitution, even to the extent of supporting slavery in the original states and enforcing the return of fugitive slaves, but “they insisted . . . upon a distinction between the Constitution’s compromises and its principles” (Jaffa 90).  Former Chief Justice Rehnquist, on the other hand, refused to recognize any principles antecedent to positive law.  “Rehnquist’s ‘original intent’ has less in common with the intent of those who ratified the Constitution than with the intent of those who ‘de-ratified’ it in 1860 – 61” (87).

Calhoun’s refusal to recognize natural rights was influenced, of course, by his philosophy that recognized slavery as a “positive good.”  Any recognized inalienable rights would attach to slaves just as they would to other South Carolinians.  Locke understood that his natural rights philosophy, if adopted, would spell the end of slavery, and Calhoun understood that, too.  For Calhoun to deny inalienable rights to slaves, then, he had to deny them to everyone.  And his twisted logic is still all that supports a state’s claimed right to secede from the Union today.

Calhoun’s first written support of states rights against the Union came in 1828 when, as the United States’ vice president, he anonymously authored South Carolina’s “Exposition and Protest” during the nullification crisis (Jaffa 278).  In doing so, Calhoun saw Jefferson as his model, since Jefferson had anonymously drafted the Kentucky Resolutions while he was vice president thirty years earlier (522).  Jefferson was not supporting a state’s right to secede based on positive law, however, but a people’s right to revolt based on natural law.

Governor Perry seems similarly confused.  By reintroducing a state’s right to secede during a protest modeled on the Boston Tea Party – a famous precursor to the American Revolution – Perry has indeed confused vastly different political theories as well as the wars that first tested them.  Let Perry endorse revolution instead of secession.  Let’s see what he’s got.

When I was eight or nine, a relative gave me my first Lincoln book, The Abraham Lincoln Joke Book.  I loved how Lincoln folded himself onto the cover and how he held the book I held in his hands.  It drew me in: I figured that the Lincoln on Lincoln’s copy would also be holding a book with Lincoln on the front, holding, in turn, his own copy of Lincoln.  Ad infinitum.

It made me think about the recursive images of round frames my sister and I created afternoons at my grandmother’s apartment around that time by forcing her boudoir’s hand mirrors to face each other.  We reflected on eternity: was time involved?  It was hard for me to look into one of those paired mirrors without seeing myself seeing myself many times over, stretching out like mystic chords of memory.

You read enough Lincoln books and you start to see that the books are as much about the authors and readers as they are about Lincoln – that they provide more mirror than window.  The history of the history of Lincoln includes some mighty wide swings in several directions, though mostly from “revisionism” and back.  And no decent Lincoln book gets five stars on Amazon because a lot of people who favor the South’s cause in the Civil War give it bad reviews.

I think the relative who gave me the joke book would herself have given Lincoln about three stars.  Since growing up, I’ve discovered that she has ambivalent feelings about Lincoln, not uncommon for Virginians of her generation.  His party affiliation gives her some heartburn (she is a liberal Democrat, and I think you’d have to grow up here to understand how Lincoln’s Republicanism would be a strike against him even today), and her lineage, which is a large part of anyone’s self-understanding, includes some Confederate soldiers and officers.

But my relative’s ambivalence chiefly comes down to the war.  Although she fully supported the Civil Rights movement and has been a model to me of an active social conscience, she still justifies the South’s succession.

If you opt in, the argument goes, you can opt out.  She also invokes Jefferson – an authority who would settle things around these parts if he hadn’t been so conflicted about things that still bother us – who stated, rather ominously late in life, that “every generation needs a new revolution.”

Lincoln liked to quote Jefferson, too, but mainly to throw Jefferson’s most famous phrase into the teeth of his Democratic opponents, politicians like Stephen Douglas who saw Jefferson as their hero.  In an 1859 letter declining an invitation to speak at an event honoring Jefferson, for instance, Lincoln said:

All honor to Jefferson – to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.

Antebellum Southerners and Democrats didn’t know what to do with Jefferson’s “all men are created equal.”  Some rationalized it, and some, like John C. Calhoun, the great philosopher of secessionism, understood that “all men” included blacks and consequently attacked the Declaration’s equality clause as error.

But the clause was the center of Lincoln’s political thought.  He famously described the Declaration of Independence as the source of “all the political sentiments” he had ever entertained, and he saw the Constitution as mankind’s greatest attempt at bringing the Declaration’s “abstract truth” into a functioning government.  The Constitution was to be defended at all costs, despite its flaws, because the Declaration’s ideals would otherwise fall along with it.  Lincoln’s political moderation found its fullest expression in his strict adherence to the Constitution, including all of its flawed provisions, such as the one requiring adherence to laws requiring the return of fugitive slaves.

Leading up to the war, Lincoln struggled to hit the proper note between his idealism and his moderation.  Allen C. Guelzo’s excellent book, Lincoln and Douglas: The Debates that Defined America, is the story of how Lincoln worked out his idealism and moderation in the context of a political campaign and the polemics of Stephen Douglas, his talented opponent.  Early in his 1858 campaign for Douglas’s Senate seat, Lincoln tried his audience out on the equality clause’s racial ramifications:

“Let us discard all this quibbling about this man and the other man,” as though there were no differences between men big enough to negate their natural equality.  Let us even discard all the blathering about “this race and that race and the other race being inferior, and therefore they must be placed in an inferior position.”  Instead, let us “unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal.” (Guelzo 82)

Guelzo goes on to describe Lincoln’s audience’s reaction to this peroration as “a frozen burst of silence.”

Lincoln learned to dial it back, later emphasizing a distinction between natural rights, which included freedom from slavery, and civil rights, which included voting and marrying whom one wished to.  Douglas was railing, rather effectively in the racist society that existed in antebellum Illinois, about “Black Republicans” (all Republicans were “Black Republicans” then), “nigger equality,” and “amalgamation.”  Lincoln countered in his fourth debate with Douglas: “I do not understand that because I do not want a Negro woman for a slave I must necessarily want her for a wife. My understanding is that I can just let her alone.”  But the political damage was probably done to his senatorial hopes, thanks to Douglas’s race-baiting as well as Lincoln’s own “house divided” remarks in accepting nomination for the Senate – remarks that reinforced Democrats’ claims that Illinois Republicans were abolitionists who would sacrifice the nation to pursue their cause.

Lincoln was usually more effective when he permitted his idealism to burn like a slow, invisible fuse as he defended his moderate constitutional views.  In his 1860 Cooper Union address, probably his best speech setting out Republican orthodoxy on the slavery issue, Lincoln made the historical and constitutional case for his party’s view that slavery should be restricted to the states where it existed and should not be brought into the territories.  The audience’s and press’s responses were electric, and the speech, more than any other single thing that Lincoln did, got him elected president.

Lincoln’s remarks about the Declaration’s equality clause served him much better in the war than they did during his 1858 campaign for the Senate.  As his Gettysburg Address demonstrates, the clause was the lynchpin that held together what had developed into two war aims: the explicit aim of preserving the Union, and the implicit aim – for the abolitionists, anyway, after the Emancipation Proclamation – of ending slavery.  Union men who cared not what became of slavery were fighting to make sure self-government “shall not perish from the earth,” and abolitionists, some of whom years before had supported the overthrow of the Constitution, which protected slavery, were fighting to further the proposition that all men are created equal that the Constitution was designed to protect.

The equality clause became more than the means Lincoln used (in his own mind, at least) to hold together the Union’s disparate war aims, however.  It also became the means by which Lincoln changed America’s view of itself.  The political and religious aspects of the equality clause became a pair of mirrors that allowed Americans to see themselves as both already and not yet – already a co-signer of the Declaration though not yet corporately a full partaker in its promise.  This view came in handy in subsequent struggles to give the equality clause fuller breadth – the women’s suffrage movement and the Civil Rights movement, for instance.

Lincoln was a mystic, I believe, in the sense that Paul the Apostle may be called a mystic. Paul’s genius, according to Albert Schweitzer in his book The Mysticism of Paul the Apostle, was in suggesting to Christians disappointed in Christ’s failure to return in their generation that eternity began at Christ’s resurrection and that they now live, by virtue of their association with that resurrection and in a personal and broadly mystical sense, in both time and eternity.  Eternity, like Lincoln’s notion of equality, was both now and not yet.

Lincoln’s America faced a crisis similar to Schweitzer-Paul’s Christianity.  Just as Early Christians had been looking for their redemption on only an outward and a chronological level, antebellum Americans had been looking to advance republicanism over only time and territory.  Douglas believed America’s territorial advances through Manifest Destiny would help to spread republicanism over the world to the detriment of the world’s oppressors.  The Kansas-Nebraska Act, which rekindled Lincoln’s political ambitions in 1854, was, for Douglas, a way of settling the slavery question so America’s territorial expansion could continue without distraction.  Lincoln felt that slavery and its expansion under Kansas-Nebraska detracted from the moral force of American republicanism, and he said as much in his first speech concerning the Kansas-Nebraska act in the fall of 1854 in Peoria:

Our republican robe is soiled, and trailed in the dust.  Let us repurify it.  Let us turn and wash it white, in the spirit, if not the blood, of the Revolution . . . Let us re-adopt the Declaration of Independence, and with it, the practices, and the policy, which harmonize with it . . . If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving.  We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.

As Harry Jaffa says in his book Crisis of the House Divided, Lincoln believed that America’s “primary action on the international scene was to be moral, not political” (85).

Lincoln met republicanism’s darkest hour by expanding Jefferson’s notion of “all men are created equal” beyond a compact of citizens who lived fourscore and seven years earlier:

The “people” is no longer conceived in the Gettysburg Address, as it is in the Declaration of Independence, as a contractual union of individuals existing in a present; it is as well a union with ancestors and with posterity: it is organic and sacramental. (Jaffa 228)

Lincoln viewed the equality clause as affording each American a relationship, in an almost mystical sense, with the Founders through which he may, if he wished, see his signature at the bottom of the Declaration of Independence, just as Paul taught Christians that they were, in a mystical sense, crucified, buried, and resurrected in this present life by virtue of Christ’s resurrection.

By holding the book that Lincoln held, we hold the Founders’ book, too.

Lincoln’s concept of political religion didn’t start off so grand, but it matured over a quarter century.  Lincoln’s first prescription of “political religion” was in 1838, when he used the phrase to assert that adherence to law should be taught like religious precept.  I think his concept of political religion grew in response to the Kansas-Nebraska Act just as Christianity grew out of Judaism.  The 1850’s amounted to political religion’s second act involving redemption for a nation that had violated the laws not just of man but also of nature.  The openly religious language of Lincoln’s second inaugural is his most famous expression of his more developed political religion.

The Gettysburg Address also expresses Lincoln’s mature political religion.  Its extended metaphor is that of birth, with early references to “brought forth,” “conceived,” and “dedicated.”  Calhoun and Douglas would have had no problem with “our fathers brought forth on this continent a new nation, conceived in Liberty,” but they would have balked as soon as the birth analogy took its religious turn: “and dedicated to the proposition that all men are created equal.”  Lincoln’s audience knew that Jewish children, such as Jesus, were dedicated to God soon after their birth.  America’s Founders dedicated the new republic to a proposition, Lincoln was saying, and the blood spilled by the war dead – like Christ’s blood spilled on the cross – would lead to a second birth.  Lincoln concluded his address by referring to America’s political born-again experience as a “new birth of freedom.”

Lincoln’s political religion, then, added the concept of redemption and second birth to the political religion he received from the Founding Fathers.  After the war began, one might have updated Lincoln’s 1854 Peoria address, quoted above, to say that the Civil War dead, including those buried at Gettysburg, had washed the republican robe clean with their blood.

The Civil War was no “revolution” in Jeffersonian terms, then, but was the awful cost of a new covenant built squarely on the Founding Fathers’ ancient covenant.

Voters familiar with Paul’s epistles, particularly the Book of Hebrews attributed to him, would probably have been receptive, based on that familiarity alone, to the logic of Lincoln’s constitutional theory and to the force of his religious metaphors in its employment.

Lincoln’s and Paul’s “theologies” are similar in another major, related respect.  Paul described Jesus’ new covenant as an improvement over the earlier, flawed Mosaic covenant, and he associated the new covenant with the more prophetic and sketchy Abrahamic covenant that preceded the Mosaic one.  Lincoln did the same thing for America’s political religion: our second birth – our “new birth of freedom” – is a new covenant that looks back before our flawed but necessary covenant, the Constitution, to our original, sketchy, rights-affirming covenant, the Declaration of Independence.

The primacy of Declaration’s equality clause in Lincoln’s constitutional framework invites a full examination of the Lockean natural rights undergirding the clause, rights which presuppose a Judeo-Christian understanding of the separation and mutual respect among God, humanity, and the rest of nature. To this day, however, most liberals and conservatives believe natural rights are too religious a concept to serve as an aid for understanding American constitutional law.  Jaffa, a Declarationist, has attacked the constitutional philosphy of Robert Bork, William Rehnquist, and Antonin Scalia and has drawn fire from Bork in return.  Jaffa and other natural rights proponents say that, without a historical understanding of Lockean rights, we can become as disconnected from our national ideals as the South became as it radicalized in the quarter century preceding the Civil War and as the nation as a whole became under Manifest Destiny during the same period.

America is not a Christian nation.  Lincoln would never have found such a concept worth fighting for.  If one believes Lincoln, America is dedicated to a proposition and not to a god.  But that proposition requires a certain understanding of and respect for what the Declaration of Independence calls “the Laws of Nature and of Nature’s God.”  Our constitutional understanding, if seen through the lens of the Declaration of Independence, is, much more than are our laws, based on a Lockean understanding of our Judeo-Christian heritage.

All honor to Lincoln, born two hundred years ago today.  May we always have the courage to stick our heads between his dangerous mirrors when the need arises.

Obama will win.  He will be an unpopular president during most of his term.  Republicans will gain seats in Congress during his administration. But Obama will help to reconnect our civic life with our constitutional values.  If he lives, he will be reelected.

Or he could lose this year.  Or win and be popular.  It just helps me to understand Obama by projecting him against a blank future.

Obama will be unpopular because he is chiefly concerned with reconnecting us with our national ideals.  This concern will cause him to take a very long time to make some important decisions, and many will view his protracted decision-making as evidence of a weak presidency.  His vacillation will be more pronounced in time of crisis, because he considers decisions politically (like all presidents), patriotically (like many presidents), and constitutionally (like few presidents).  By “patriotically,” I mean he cares how the decision will leave our nation in the long run.  By “constitutionally,” I mean he cares how the decision will leave our Constitution and our relationship to it in the long run.

Because our national ideals and constitutional values are often at odds with short-term politics, his decisions – when he gets around to making them – will often be unpopular.  But the process even more than the product will drive many crazy.

In other words, Obama will be unpopular because he will be slow.  But Obama might just be as slow as the best of them: Abraham Lincoln.

We’re familiar with most of the parallels between Lincoln and Obama, of course.  Both men are Illinois lawyers who never run anything, really, before becoming president.  (I refer to Lincoln in the present tense for ease of comparison.)  Both men grow up distant from their fathers, one emotionally and the other physically.  Both men are seen as theorists and orators whose talents arguably would be more suited for the legislature, but both men are drawn to the presidency not by ambition alone but by a desire to address fundamental discrepancies between what our nation was meant to be and what it is.  Before his presidential campaign really begins, each man becomes nationally known initially only for a single, electrifying speech he gives in the Northeast to party faithful.  The campaigns of both men emphasize their candidates’ humble origins and deemphasize their candidates’ careers in law.  Both men win their party’s nominations as dark horses against highly favored candidates from New York, favorites who many party leaders fear would be too divisive in a general election.  Each man benefits from running at the end of his rival party’s unpopular administration in an election year favoring his own party’s general prospects.

Some of these parallels are almost as meaningless as the ones I read as a child between Lincoln and John Kennedy (e.g., each had a secretary who shared the other’s last name).  For me, though, the most important parallels between Lincoln and Obama have to do with what makes them both slow executives: a driving desire to connect policy and public with constitutional ideals and broad principles.

Obama takes a long time to respond concerning important matters.  When he finally responds, he responds conceptually, sometimes to good effect and sometimes not.  He is slow to distance himself from Reverend Wright.  When he finally reacts to the public’s distaste for the clips of Wright’s sermons, though, it is in the form of a critically acclaimed speech that addresses race in America in fresh, constructive ways.  Then he is slow to respond to accusations that he is unpatriotic.  He finally reacts with a speech just before Independence Day this year that advocates a broader, less divisive concept of patriotism.  It is not a stirring speech, though, and it is not as well received as his earlier address on race.

Lincoln’s final speech is to a fired-up crowd that comes to the White House to celebrate the successful end of the Civil War.  Lincoln uses the occasion to offer an olive branch to the South and to outline a generous philosophy for admitting the succeeding states back into the Union.  Disappointed, the crowd starts to thin out before the speech ends.

Whether or not Lincoln’s and Obama’s more-important speeches are successful, they are usually theoretical in nature, connecting current events with broader themes.  Both Lincoln’s and Obama’s speeches generally make for terrible sound bites, since neither Lincoln nor Obama relies on cute turns of phrase.  Their rhetoric has a lawyerlike force that requires a longer attention span.  Fortunately, both men know how to keep their audience’s attention.  Both men are good writers, and one could use the best of both men’s writings as texts for teaching both rhetoric and prose.

But most of the force in both Lincoln’s and Obama’s speeches comes not from their literary and rhetorical skills but from the way they connect current events to constitutional values our government fails to live up to.  Indeed, both men know constitutional law well: Lincoln obsessively studied it late nights during the 1850’s in reaction to the Kansas-Nebraska Act, and Obama taught it for over a decade.

But this same felt connection to forgotten national values – values rooted in involved political and legal theory – that makes both men electrifying speakers also makes them slow executives.

Lincoln claims as president-elect that he “never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”  For sure, Lincoln is a political animal; Lincoln’s law partner and biographer William Herndon famously describes his political ambition as “a little engine that knew no rest.”  But Lincoln’s claim about his political thinking is a fair one.  As president, his decisions are generally made to advance a Whiggish view of the Declaration of Independence, a view that is best expressed in his Gettysburg Address. (See Allen C. Guelzo’s Abraham Lincoln: Redeemer President for an explanation of the Whig philosophy behind Lincoln’s political thought.)

At the war’s outset, the North has one goal: preserve the Union.  After the Emancipation Proclamation, the North adds the destruction of slavery to the original war aim of preserving the Union.  The Civil War amendments, bracing in their simplicity, accept African Americans as citizens.  And, long after Lincoln is dead, the Gettysburg Address helps the nation coalesce its constitutional thinking around “all men are created equal” as a guiding principle.  Lincoln takes advantage of a war he never intentionally prolongs to fundamentally change our relationship to the Constitution and the Declaration of Independence (not to mention the Northwest Ordinance and several other founding documents – heck, he helps change how we look at the Founding Fathers).  For Lincoln, a change in what we all believe is change you can believe in.

Lincoln is derided as slow and vacillating, and this perception is accurate.  During the first months of his presidency, for instance, he seems to take forever to decide how to respond to the South’s attack on Fort Sumter.  Like any president would, Lincoln considers his options from a political and military standpoint.  Like few presidents, though, Lincoln considers his options from a constitutional standpoint, too.  I do not mean only that he considers whether various actions he could take would be consistent with the Constitution.  Lincoln considers also whether his options would preserve the constitution and augment its role in our civic life. Changing a country’s constitutional viewpoint is slow work advanced only by an astute and principled politician with a cool temperament.

But his constitutional scruples make Lincoln come across as weak and slow.  Lincoln is slow by nature, too; someone who generally likes to weigh matters long past the time the country or the Congress wants him to act.  He is slow to fire generals and cabinet members, and he is slow to take offense, even when his failing, top general who despises him walks past his own study where he knew Lincoln is waiting to speak to him, and goes to bed.  He almost loses the war, and he almost loses the 1864 election to that same general who has a completely different view of the Constitution and of the North’s proper war aims than he has.

Obama responds to his opponents’ unfair attacks with preternatural patience – a patience that frequently drives me crazy.  Like Lincoln, Obama doesn’t respond in kind to many attacks, and he seems to believe that the public can be drawn to act by “the better angels of our nature,” to use Lincoln’s phrase.  Obama appears not to see the danger in his opponents’ unfair charges even though he frequently says that he does.  This vulnerability attracts a following of people who wish to protect him.  Together, they give millions of dollars each time one of his opponents attacks him in a particularly unfair and potentially effective manner.  Lincoln also frequently finds himself explaining his failure to strike back at opponents, and his inside people are insanely loyal and protective of him, too, according to one of Lincoln’s biographers, Stephen Oates. People who know Lincoln or Obama well often describe a certain vulnerability they sense.

So maybe Obama’s slowness comes from his need to sound out how each of his options may square with broader principles, as I suggest here.  Or maybe he’s slow because he’s a listener and a negotiator, a problem-solver and a consensus-builder (perhaps, like Lincoln, starting with his powerful cabinet – see Doris Kearns Goodwin’s Team of Rivals: The Political Genius of Abraham Lincoln). Maybe Obama is slow because he’s stubborn: he’s not easily intimidated or goaded or tricked into reacting.  He could be slow also because he’s simply more comfortable weighing major decisions over a period of time.  He’s slow, though, for some or perhaps all of the above reasons.  Today even more than in the 1860’s, Americans seem to prefer a take-charge, decisive CEO-type in the White House, and that’s neither what they got with Lincoln nor what they’ll get with Obama.