Toulmin and the reasoning of children

3PictureStephenToulminStephen Toulmin, the twentieth-century British philosopher whose book The Uses of Argument helped to make logic available for everyday use, seems bemused in his preface to that book’s updated edition about the first edition’s significant contribution to informal logic. He had not, he says, “set out to expound a theory of rhetoric or argumentation: my concern was with twentieth-century epistemology, not informal logic” (vii). I’ll ignore his protestations as I present two practical contributions his book has made – and will make – in my classroom, but I’ll take him at his word in examining how his epistemological approach may have inadvertently contributed to my own educational theory and practice.

I’ve taught “the Toulmin model” in AP Language and Composition courses as a modern means of argument, more flexible than Aristotle’s compromise between Plato and the Sophists. Aristotle’s syllogisms and deductive reasoning get one only so far, and it would be tragic if logic of some kind might not be used for matters of that call for less than mathematical certainty, particularly matters of morality and public policy. Toulmin’s flexible construction of claims, data, and warrants meets this need. If Toulmin has successfully identified these “modes in which we assess arguments, the standards by reference to which we assess them and the manner in which we qualify our conclusions about them, [that] are the same regardless of field (field-invariant)” (15), or at least if he has created a model that makes something like logic more accessible to arguments normally impervious to Aristotle’s more syllogistic logic, then my students at least have a way of talking about, critiquing, and challenging many kinds of arguments the same way.

Toulmin oversimplifies Aristotle, however, and ends up duplicating Aristotle’s method for informal argument to some extent. Toulmin implicitly blames Aristotle for boiling down argument to “‘minor premiss; major premiss; so conclusion’” (89). However, Toulmin’s model, particularly his notion of the warrant as “incidental and explanatory, its task being simply to register explicitly the legitimacy of the step involved and to refer it back to the larger class of steps whose legitimacy is being presupposed” (92), is a lot like Aristotle’s notion of an enthymeme. Toulmin gives an example of an argument over someone’s hair color and identifies its trivial warrant: “the knowledge that Harry’s hair is red entitles us to set aside any suggestion that it is black, on account of the warrant, ‘If anything is red, it will not also be black’” (91). Yet Aristotle’s enthymeme, called by rhetorician Thomas De Quincey a “syllogism of which one proposition is suppressed” (Seaton 113), has some overlap with Toulmin’s warrant, which is distinguished from his data in part because of the former’s implicitness: “This is one of the reasons for distinguishing between data and warrants: data are appealed to explicitly, warrants implicitly” (92). Specifically, if an enthymeme’s minor premise is implied, then it serves also as Toulmin’s warrant. I’ve stopped teaching enthymemes in AP Language classes: the potential for overlap and confusion seems to outweigh the benefit from learning the subtle differences between enthymemes and Toulmin arguments.

Uses, now that I’ve read it, may help me teach argumentation in other ways. Toulmin’s occasional templates may also help my students express the relationships among claim, data, and warrants. He offers two such templates here: “‘Data such as D entitle one to draw conclusions, or make claims, such as C’, or alternatively ‘Given data D, one may take it that C’” (91). Toulmin, in fact, seems to have provided the philosophical backbone as well as the pedagogical structure for a popular book on argumentation I assign my students, They Say, I Say: The Moves That Matter in Academic Writing by Gerald Graff and Cathy Birkenstein. They Say has a section on “Prove it” (Toulmin’s “data”)(42) and on “So what?” (Toulmin’s “warrant”)(92). It also discourages the use of formal logic (xxv) and expands on Toulmin’s use of templates (e.g., 64 – 65). They Say and its ilk, then, may be seen as means of implementing Toulmin’s theory into the classroom and expanding his practice there.

But the biggest contribution Toulmin makes to my classroom could be in the area of educational theory. Ironically, he addresses educational theory in Uses only in passing and then only to disclaim his theory’s applicability to educational theory:

If one asks how in the course of children’s lives they come to pick up the concepts and facts they do, or by what educational devices particular rational techniques and procedures are inculcated, one will of course have to proceed a posteriori, using methods drawn from psychology and sociology . . . (200)

Yet if one believes with Maria Montessori that a child’s reason begins functioning at birth (Standing 206), then the more logical side of Toulmin’s epistemology may be helpful in discovering in what sense that reasoning occurs. Seventeenth-century British philosopher John Locke also believes that children begin to reason at birth; his famous epistemological work An Essay Concerning Human Understanding famously dismisses the notion of “innate ideas” in favor of what has since been called a child’s tabula rasa, or “blank slate” (White 16 – 19). Locke’s position has been misunderstood: his “blank slate” protects the political sanctity of children since the existence of innate ideas would give “no small power,” as Locke puts it, to “one man over another, to have the authority to be the dictator of principles, and teacher of unquestionable truths; and to make a man swallow that for an innate principle which may serve to his purpose who teacheth them” (18 – 19).  Toulmin tacitly acknowledges the link between his epistemology and this aspect of educational theory when he finds himself unable to wholly dismiss the seventeenth-century controversy over innate ideas because “in the last resort one cannot set the psychological and logical aspects of epistemology utterly and completely apart” (196 – 197).

Toulmin, then, refuses to take a stand on either side of the “innate ideas” controversy, but his epistemology favors Locke’s and Montessori’s positions. Toulmin is often seen as an unwitting antidote to the extreme position of the early twentieth-century logical positivists, whose radical division of logic from rhetoric caused them to regard “statements of value as merely reports on the state of one’s glands,” as Northwestern University School of Communication Professor David Zarefsky puts it. Zarefsky sees Toulmin’s model as one of a few “reformulations of the concepts of reason and rationality” that came later in the twentieth century (16). Toulmin’s broadening of the notion of reason to include moral and practical concerns mirrors similar efforts by Locke and by Montessori, the latter of whom in discussing the Western world’s “moral paralysis” states that “reason today is hidden under a dark cloud and has almost gone down to defeat. Moral chaos in fact is nothing but one side of the coin of our psychic decline; the other side is the loss of our powers of reason. The pre-eminent characteristic of our present state is an insidious madness, and our most immediate need a return to reason” (Montessori 13 – 14). Toulmin, whom Zarefsky sees as attempting “to explain ethical reasoning” (16), seems to have unwittingly affirmed Locke (an educational theorist as well as a philosopher) in restoring reason as a tool of epistemology and educational theory.

Aided by the Toulmin model and the license to moral inquiry that the model represents, my students are empowered to argue claims of fact, value, policy, and definition without having to pretend that those claims’ moral implications are beyond the scope of reason.

Works Cited

Graff, Gerald, and Cathy Birkenstein. “They Say / I Say”: The Moves That Matter in Academic Writing. 3rd ed. New York: Norton, 2014. Print.

Montessori, Maria. Education and Peace. Trans. Helen R. Lane. Amsterdam: Montessori-Pierson Pub., 2007. Print.

Seaton, R. C. “The Aristotelian Enthymeme.” The Classical Review 28.4 (1914): 113-19. JSTOR. Web. 25 May 2015.

Standing, E. M. Maria Montessori, Her Life and Work. New York: Plume, 1998. Print.

Toulmin, Stephen. The Uses of Argument. Updated ed. Cambridge, U.K.: Cambridge UP, 2003. Print.

White, Morton. The Philosophy of the American Revolution. New York: Oxford UP, 1978. Print.

Zarefsky, David. “History of Argumentation Studies.” Argumentation: The Study of Effective Reasoning. 2nd ed. Chantilly, VA: Teaching, 2005. Print.

Of commonplace books, journals, readers, & epigraphs

John Locke kept something called a commonplace book. It wasn’t a journal, and it wasn’t quite a scrapbook. It was a collection of excerpts he found significant from other people’s books. He’d copy out the passages by hand and then refer to them in his ever-expanding index so he could find them again.

3PictureFlowerGraffitiIf I were Locke, I’d leave lots of room in the margins for my notes and coloring. My journals for years have been part scrapbooks and part commonplace books, though I haven’t followed Locke’s lead in indexing them. I do number my journals’ pages and cross-reference with those numbers in the pages’ margins, which is about as much organization as I may ever need. Annie Dillard, by comparison, indexes her journals. But I don’t pretend to be Annie Dillard or John Locke, who both organized their private writings in part to help them write books they intended to publish. Wouldn’t it have been cool, though, to have been Thomas of Ireland, a fourteenth-century writer known only for his anthologizing?

Locke, for his part, didn’t pretend to have invented the commonplace book; things in this general genre have been written since antiquity. In Thomas’s time, monks copied excerpts of books into “florilegium.” Harvard’s library website reports that “The florilegium, or ‘gathering of flowers,’ of the Middle Ages and early modern era, collected excerpts primarily on religious and theological themes.” Locke, in fact, published a commonplace book organizing Bible verses into eighty-nine topics and many more subtopics.

Locke’s Commonplace Book to the Holy Bible reminds me of today’s books often called readers, which amount to a Whitman’s Sampler of an author’s work. A reader is often a good way for me to introduce myself to a writer or to a broader sampling of her work. My favorite readers include The Faulkner Reader, The Virginia Woolf Reader, A Thomas Merton Reader, and Seeds of Hope: A Henri Nouwen Reader. Of the four, only the Nouwen reader seems to be in the spirit of a florilegium: it’s organized by topic and includes short enough excerpts from the author’s works to resemble something someone might have first complied for his own edification.1 A more Middle Ages-style reader of Merton’s work might be Robert Inchausti’s compilation Echoing Silence: Thomas Merton on the Vocation of Writing, which contains very short, sometimes aphoristic passages and focuses only on what Merton wrote about writing.

Locke was moved to write about writing commonplace books. Locke had his own method for keeping his commonplace books, and his friends urged him to publish a letter he had written another friend on how to keep a commonplace book. A lot of the resulting book has to do with how to keep that running index.

Locke intended his commonplace books mainly as research tools, but I copy out others’ work to benefit my devotional practice and learning. There’s something digestive about copying out something that appeals to me. Writing something out slows me down enough to begin to think about the passage in new ways. I now buy the big art journals so I’ll have lots of room for marginalia that I sometimes break into while copying.

I do dream about writing a book, but the happiest part of my dream is selecting the book’s epigraphs. If I wrote a book, I’d audition hundreds of short passages and herald each of my chapters with around a dozen different epigraphs. I often find myself collecting quotes anyway, not to comment on them but simply to juxtapose them, to put them on the same page and watch them support, expatiate, refute, or qualify one another. A really good pairing seems to create an energy, and sometimes a friendship, much like imaginative and successful pairings among guests at a dinner party. And by the time my quotes have found their place cards, I find I have nothing to say and less reason to say it. My own book would end before it began, then, after a few extended sections of epigraphs. But I would have compiled a commonplace book.

Above: “Red graffiti drawing of flower on stone column” by Horia Varlan. Used by permission. Below: from my journal. Text in green ink is from Robert Lowell’s poem “Eye and Tooth.”


  1. I’m currently reading a similar reader – organized topically with shorter excerpts – entitled Basic Ideas of Montessori’s Education Theory.  It complies a good deal of what Montessori wrote in books, journals, and letters relative to her education theory.

The duty to preserve life and liberty & to pursue happiness

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


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.

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.

T. S. Eliot

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.

° ° °

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

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


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.

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

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

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.

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


  1. Kermode, Frank. Introduction. Selected Prose of T.S. Eliot. By T. S. Eliot. New York: Harcourt, 1975. Print. At 17.
  2. Id. at 17-18.
  3. Id. at 17
  4. Id. at 19
  5. He fears “an irresponsible democracy” as much as “a pagan theory of the State.” Holding Italy up as a positive example in 1939, he writes that the operation of such a pagan theory “does not necessarily mean a wholly pagan society.” He rejects democracy as potential home for a vibrant literature “unless democracy is to mean something very different from anything actual” (The Idea of a Christian Society).  Picking up the spirit of his book title – mine might be The Idea of a Liberal Democracy – I might respond that American democracy means something very different from anything actual.


    Eliot fears modern democracy because the community is solely a servant of the individual; he fears totalitarian states because the individual is solely a servant of the state (see his essay “Religion and Literature”). I fear both, too. The liberal notion of equality and its consequent majority rule held in check by reason and nature has been given a bad name by our tendency toward a Jacobin notion of unlimited majority rule that leads in time to one or the other extremes Eliot fears. Lockean liberalism requires God because it requires men and women with equal rights – none of them a god over his fellows. Locke’s equality leaves each man his property and, as a necessary consequence, makes room for his talents, artistic and otherwise. To showcase those talents it contemplates a vibrant public life; indeed, Madison’s overarching purpose for a separation of powers and a bicameral legislature was to model public discourse to the young nation.

    Like a number of Catholic writers, Eliot seems receptive to the notion of natural law. He writes about mankind’s relation to nature and God as if he were pining for a return of Locke’s philosophy. In Christian Society, he points out an imbalance in the hierarchy among God, humanity, and nature:

    . . . a wrong attitude towards nature implies, somewhere, a wrong attitude towards God, and that the consequence is an inevitable doom. 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. . . . We have been accustomed to regard “progress” as always integral; and have yet to learn that it is only by an effort and a discipline, greater than society has yet seen the need of imposing upon itself, that material knowledge and power is gained without loss of spiritual knowledge and power. (We must) struggle to recover the sense of relation to nature and to God, (and) the recognition that even the most primitive feelings should be part of our heritage . . .

    Locke’s natural law, of course, is mostly part of a tradition stretching back to Aquinas’s natural law, and from there back to ancient Israel and Athens. It has far more tradition associated with it than does the more modern doctrine of the divine right of kings. I like to think Eliot would have liked Locke had he read him.

  6. Eliot, T. S. “The Idea of a Christian Society.” 1939. Selected Prose of T.S. Eliot. New York: Harcourt, 1975. 285-91. Print.
  7. Id.
  8. Merton, Thomas. The Seven Storey Mountain. New York: Harcourt, Brace, 1948. Print.
  9. Oates, Stephen B. With Malice toward None: A Life of Abraham Lincoln. New York: HarperPerennial, 1994. Print. At 107.
  10. Id. at 108.
  11. Fox, Everett. The Five Books of Moses: Genesis, Exodus, Leviticus, Numbers, Deuteronomy ; a New Translation with Introductions, Commentary, and Notes. New York: Schocken, 1995. Print. Genesis 1:2-3
  12. Id. Exodus 2:24 – 25.

Lockean liberalism

[book cover]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 charge 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.

An appeal to heaven


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.]

[Washington Cruisers flag]



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.