Good reads on natural law, Lockean liberalism, & equality

Walter Lippmann stampA few people recently asked me for some good reads to start them into natural law, Lockean liberalism, and the equality clause. I oblige them here.

The Teaching Company’s Great Courses includes a thoughtful overview on the history and development of natural law theory. Joseph Koterski’s “Natural Law and Human Nature” course comes with a good “course guidebook” that has lots of suggestions for more reading.

One of those suggestions is Paul E. Sigmund’s book Natural Law in Political Thought. Here is the most approachable scholarly book I’ve read on the subject. Like Koterski’s course, Sigmund’s book traces natural law’s development over the centuries.

Sigmund’s book, in turn, mentions Walter Lippmann’s book The Public Philosophy. I’m reading it now. Unlike Koterski and Sigmund, Lippmann was not a scholar but (as Wikipedia puts it) a public intellectual and an amateur philosopher. He wrote The Public Philosophy in 1955, near the end of his reign as probably the twentieth century’s most influential American columnist. Lippmann’s book isn’t a history book; instead, it advocates that America readopt natural law as its public philosophy.

Ruth W. Grant
Ruth W. Grant

Another well-argued piece is political science professor Harry V. Jaffa’s 1987 law review article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” Jaffa takes issue with his fellow conservatives who reject natural law in favor of strict constructionism. (If you click the above link to that article, be prepared to be patient. It takes a while to load.) Jaffa’s shorter article along those same lines is “The False Prophets of American Conservatism.” If you end up liking Jaffa and want to challenge yourself, treat yourself to what I consider to be the past few decades’ greatest work of American political science, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War, published in 2000. In it, Jaffa develops the founders’ and Lincoln’s political philosophy and establishes the significance of the equality clause and the natural-law hierarchy it reinforces among God, mankind, and nature. Very slow, difficult, but rewarding reading.  (You can read my customer review of the book here.)

Three good primary sources would be Locke’s Second Treatise on Government, Hamilton, Madison, and Jay’s Federalist Papers, and Lincoln’s writings. Political Writings of John Locke has a long (115 pages) and excellent introduction by David Wootton. The introduction puts Locke’s works in the context of his life and times and explains his works’ appeal to the American revolutionary generation. The Signet Classic version of the Federalist Papers has a much shorter but equally thoughtful introduction, this one by Charles R. Kesler. Written in 1999, the introduction presciently demonstrates how pertinent the Federalist Papers are to us today: “The American Union is threatening to split up into separate confederacies of states, Publius argues, and each state is itself teetering on the brink of tyranny due to the danger of majority faction.” As for Lincoln’s writings, I use Lincoln on Democracy, edited by Mario M. Cuomo and Harold Holzer, and the Holzer-edited version of the Lincoln-Douglas debates. My favorite intellectual biography of Lincoln is the very approachable Abraham Lincoln: Redeemer President by Allen C. Guelzo.

Alexander Rosenthal
Alexander Rosenthal

Two other books I’ve read should not be missed: Alexander S. Rosenthal’s Crown Under Law: Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism and Ruth W. Grant’s John Locke’s Liberalism. The links associated with those titles lead to my extensive reviews of the titles.

Three good steps for finding free or cheap books: (1) showroom Amazon (many would say it’s only fair) using its customer reviews and its “Look Inside” feature where available, or Google Books, to see what you want, (2) look for free e-book downloads on’s texts sectionOpen Library, or Amazon’s Kindle store and the like (usually books out of copyright) (you can borrow many e-books at these sites, too), and, barring that, (3) shop for used hard-copy books, starting at bookfinder.comAnd three guidelines for buying used books: (1) hardbacks are often way cheaper than paperbacks, (2) older editions are often way cheaper than newer editions, and (3) (contrary to all reason) well-marked books are often way cheaper than “clean” books.

I can’t compile such a digest of political science books as this without acknowledging the work that got me interested in natural law, Lockean liberalism, and the equality clause more than a quarter-century ago: Jaffa’s Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates. I trembled, reading it the first time.

Texas’s successive secessions

[Photo of John C. Calhoun]

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.