Natural law has a strange place in the American system. The Declaration of Independence is framed in terms of natural law, but the American Constitution really is not: it's formally capable of endorsing any sort of governance for any sort of reason, provided the Article V processes are followed. America has become less and less attached to traditional natural law conceptions over its long life, outright hostile to them in some cases, and in any case its constitutional vision of liberty very much does not entail pursuing the virtue of citizens. Our constitutional liberties are about being left alone, not encouraged in virtue by the state.
This appointment is surprising, then: the US Department of State has elected to appoint a trained philosopher to pursue natural law ends in our foreign policy. The New Republic is critical, seeing in it nothing more than an attempt to oppose gay rights; but really, they should be much more worried than they are. Natural law theory sets up a structure of the good in human life that is far more completely opposed to the progressive vision than they imagine.
But conservatives ought to be careful, too. Changing the mission of the state from 'leaving you alone to find your own good' to 'encouraging you in virtue' is the sort of sea change that could -- if the vision of the good is captured by progressives, and swayed away from the natural law roots -- empower the state in many ways we should oppose.
I'll leave it to you to work through the arguments. The discussion is open, as always.
18 comments:
The Declaration of Independence and our Constitution cannot be read or understood in isolation of each other. For all that they were written at different times and under somewhat (but not entirely) different circumstances, the one is our nation's principles statement, and the other is the blueprint for giving effectivity to those principles. Beyond that, a number of our Founders have said that our Constitution was written for a virtuous people and required virtue for our nation to survive.
But conservatives ought to be careful, too. Changing the mission of the state from 'leaving you alone to find your own good' to 'encouraging you in virtue' is the sort of sea change that could...empower the state in many ways we should oppose.
It certainly is something to be carefully watched, and controlled, by We the People, but it's not, on its face, a bad move. As with our Constitution, the move demands virtue on our part.
Eric Hines
I started telling people the State Department was full of traitors even back in 2007. People did not react all that well to having their sacred cows cooked and killed in front of them. It didn't matter what political tribe they were in, although being close to the District of Columbia (who is that, it isn't Jesus or YHVH or even an orthodox Roman goddess) and Maryland didn't help.
Humans have this tendency to lack faith and belief in the truth. They sincerely fight against it, whenever Truth pops up its head, like a game of eternal hammer the hedgehog.
As with our Constitution, the move demands virtue on our part.
I'm a big fan of virtue, as my endorsement of virtue ethics might suggest. It's just a titanic shift, a bigger one than I think they know.
For example, I think a shift to natural rights could easily endorse universal free college -- indeed, mandatory education to the height of individual capacity. The arguments are all there in Aristotle. 'Why do we have a long intestine?,' Aristotle asks. It is so that we can digest food over time, freeing us from the need to eat constantly. This enables us time to think, and thinking is thus a kind of higher good that our very biology -- our nature -- seeks to enable. Natural reason can see it. So too why we walk upright: so we can contemplate the stars, and their motions, and thus develop astronomy, physics, philosophy.
The development of our capacity for reason is thus a natural good; and it is certainly a virtue, in the ancient sense of 'a strength' or 'an excellence.' Now it is the government's job to promote our virtues. So it should structure itself to maximize opportunity, for example by making school free to your highest level of competence.
But it also might make school mandatory, for as Aristotle says of the lawfulness aspect of the virtue of justice: 'its function is to require us to behave as if we were virtuous.' The courageous man would serve in the defense of his nation; the law should require all men to act thus at need. The virtuous man would maximize his education; the law should require all men to act thus.
It's all there, in the very root of this philosophy. It's not freedom, not America as we've ever known it. You might like it better, you or someone else; but it's not the America we've ever had.
I think a shift to natural rights could easily endorse universal free college -- indeed, mandatory education to the height of individual capacity.
Not at all. Free college is not a necessary outcome of shifting to natural rights or of requiring virtue. For one thing, it can't be free. There are costs to be covered, and those costs must be paid for. So it is with any other thing that might seem a useful outcome of such a shift. The best we can do--and all we should do--is (re)create and enforce the parameters for a capitalist, free market economy, which lowers costs to their own natural levels--the cost of production. At that level, there will still be some who cannot afford the thing for reasons inherent to them (rather than born of matters of their choice--laziness, for instance); these are the only legitimate recipients of government's "free."
For another, it shouldn't be free. Free things are unvalued by their possessor, for all the value they might otherwise have, and so are wasted. Women's studies, for instance, or the study of the intersectional sexism of glaciation.
Now it is the government's job to promote our virtues.
No, it isn't. It's government's job to protect us from external threats, protecting our individual born-with freedom and independence, and in our American system (and many Western systems) to foster an economic environment that allows us as individuals to maximize our Adams-ian safety and happiness. And no other thing.
Government has no more business mandating our virtue--or promoting it--than it does our morality. Government does encourage these by sanctioning failures: crimes and associated punishments. But then government goes far afield and creates nearly everything a criminal offense, or at least a civil offense and punishable. Would government pushing us to be virtuous make us virtuously limit that same government? No.
Our responsibilities, our requirement to be virtuous, are individual, not collective. We certainly employ government to help us satisfy our individual responsibilities, but we cannot surrender those to government to do in our name. Were to do so, we would be neither virtuous--having unvirtuously shirked that--nor safe and happy, or even free and independent.
Eric Hines
Government has no more business mandating our virtue--or promoting it--than it does our morality.
Yeah, that's really the point I'm making. America has traditionally believed that. Aristotelian politics doesn't believe that -- the whole natural law / natural rights tradition builds in a concept of government in which it is the business of government to try to promote virtue. As Aristotle himself says, the point of a just law is to require people to act in the way that they would do if they were already virtuous. If they are, well, it's no imposition on the virtuous man to ask him to do what he was going to do anyway. If not, well, the state is improved by having people who act virtuously even if they aren't perfectly virtuous in fact.
This conception has a noble and ancient history, but it's not the American way.
This conception has a noble and ancient history, but it's not the American way.
It's not even an effective way. It is, after all, not government that's promoting virtue, it's the men populating government who are promoting virtue. Which is to say, it's the men populating government who are promoting what they think is virtue. Which is to say it's the men populating government who are promoting that version of virtue that's convenient to those men. Which is to say, it's the men populating government who are promoting their perpetuation in power, nothing to do with virtue at all.
It's on us to be virtuous on our own initiative. Which brings us full spiral back to education. We need to go back to teaching virtue and morality in our education system. Education can't be free, but we have to pay the price, or we'll pay a more severe price.
Eric Hines
Well, this is the sort of thing that happens when you take a system that's designed to leave men to their own doings, with the expectation that there will be an underpinning of morality in the social sphere, that it's not needed for government to supply it- and try to foist a different system onto it which attempts to impose a morality that is completely different from the one historically in place. Force is met with force. 'If there is to be imposition, then I'll be damned if it's going to be yours'. It's not at all unreasonable, and we may want to put the genie back in the bottle, but I'm genuinely worried that we may not be able to.
I have stumbled across the Trad Catholic world view in Twitter, and it struck me strange at first that some of them want to bring back divine right monarchy. To me, that's nuts- but as a response to the pushing of a 'progressive' agenda that's completely foreign to all we've historically held dear, I suppose there's a kind of sense in insisting that if there'll be imposition, then at least let it be from something you're in favor of. I'm still not supportive, but I'm understanding it better.
It also suggests that if we can't maintain the cultural underpinnings that made the American system work, then perhaps it will fail. The culture war is real.
This is a great discussion and one in which I have little to add to the excellent points already made. I will say that our Founders did not see the natural law as inconsistent with our republican form of government and democratic sensibilities. In fact they believed that manmade law needed to reflect the wisdom of natural law, in fact it was the only way to protect the inalienable rights granted by our creator. To quote Thomas Jefferson, "Man has been subjected by his Creator to the moral law, of which his feelings, or conscience as it is sometimes called, are the evidence with which his Creator has furnished him .... The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society. their Maker not having released them from those duties on their forming themselves into a nation." The Constitution confirmed the natural law in this respect and secured the rights that bound both individuals and their representatives in government to a moral code, a code that did not sanction taking people’s property, life, or liberty without their consent or due process. The natural law is about as American as it gets.
...some of them want to bring back divine right monarchy. To me, that's nuts- but as a response to the pushing of a 'progressive' agenda....
This isn't a response to the Progressives' agenda so much as a demonstration (intended or not) of support. Modern liberals, of which these Progressives are simply the most overt example, are of a piece with the 18th century monarchists against which we revolted. Both want to impose a system of morality and control on the unwashed who, by our station in life have no ability to control our own lives. Or as Herb Croly put it, us merely ordinary are simply inadequate inadequate to our duties.
That today's Progressives' version of morality and agenda might differ from those of a modern divine-right monarch is neither here nor there. In both cases, it's men who will do the impositions, and so those impositions will be frangible at whim--qual piùma al vento. And so those impositions will quickly converge to the same despotic state, regardless of the details of the imposition.
Eric Hines
"Government has no more business mandating our virtue--or promoting it--than it does our morality. Yeah, that's really the point I'm making. America has traditionally believed that."
I could not disagree more. As John Adams said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Our Founding Fathers conceived of the Natural Law as comprised of moral laws that transcend time, culture, and government. Natural law conceived this way incorporated our inalienable rights that existed separate and apart from government. Our Constitution mandates an affirmative duty on the part of our public officials to protect these rights. What is that if not mandating virtuous attendance to duty by our officials?
It is most certainly government’s duty to promote the civic virtues without which no self-government would be possible. In fact, this is the very meaning of police power in U.S. Constitutional law.
What is that if not mandating virtuous attendance to duty by our officials?
Mandating virtue on the part of our government officials is a long way from (officials of) government mandating virtue on government's employers.
government’s duty to promote the civic virtues [on the part of the rest of us] is a similarly long way away from mandating those virtues.
And: Adams was emphasizing the need for us to be virtuous, not any need for government to make us be virtuous--especially since that wouldn't be anything but another man's definition of virtue, as pointed out earlier in this thread.
Eric Hines
I'll grant you that government has no business mandating virtue of the citizens. However, Grim's point was also that it had no business PROMOTING or encouraging virtue on behalf of the citizens and, furthermore, Americans have always believed that. That simply isn't correct as the John Adams quote and the existence of the constitutionally recognized doctrine of police powers demonstrates.
What I said was that the Declaration of Independence cast itself in natural law terms, but that the Constitution does not. As for whether the government ought to encourage the virtue of citizens, it depends on what you mean by 'encourage.' Obviously no one has ever objected to a President giving a speech encouraging people to freely chosen virtuous action; that's just Teddy Roosevelt's Bully Pulpit. On the other hand from the First Amendment the Federal government accepted that citizens had the right to freedom of conscience, which includes the decision of whether to be virtuous (and also some freedom to decide what virtue entails).
In practical terms of encouragement, the Federal government has long endorsed providing for the education and shaping of young men in the Aristotelian virtues -- in return for military service. It has gone with Aristotle on compelling virtue in wartime, as for example by compelling service to defend the country. But it has generally not, except perhaps during Prohibition, undertaken to command virtues like temperance at the Federal level.
States have, at times. But one can always leave a state.
I suppose one might reasonably extend the Prohibition example to the Drug War, although that is generally presented as a public health matter rather than a matter of virtue. (Prohibition was sold as both, but the Christian Temperance unions were very much selling the 'compel virtue' idea.) If you're inclined to view the Drug War as Prohibition II, then it's a model that has been employed at times although never with great success.
Those are fair points. I should probably have been clearer about the virtue of which I was speaking which was specifically civic virtue such as toleration, restrain and participation in the process and not sectarian virtues. I see no issue with government encouraging such civic virtues.
However, I think it’s important to understand the while the Declaration of Independence is far more explicit in it’s reference to the natural law the Constitution is also a document that rests upon natural law principles. The most important of which is that our rights exist prior to and separate from any act of government. That was one of the reasons there was so much debate over including a bill of rights in the Constitution. The Federalists didn’t believe they were necessary because government couldn’t touch our rights to speech, own firearms, assemble, etc (thank God for the Anti-Federalists) because government had no power or right to deprive citizens of the natural rights. In fact, Federalist and Anti-Federalist alike understood that citizens had more natural rights than those that could be listed in a document, hence the Ninth Amendment’s protect of those other natural rights which are not explicitly enumerated in, but still protected by, the Constitution.
While the First Amendment does forbid government endorsing any particular religion or denomination, I see no threat from the government hiring a philosopher to provide counsel on natural law principles. Providing advice to policy makers does not equal mandating or even encouraging any specific code of morality on citizens. I’m afraid I see no problem providing moral advice to foreign policy makers.
...civic virtue such as toleration, restraint and participation in the process...
That's an interesting set of virtues, which doesn't line up exactly with the Aristotelian ones. Toleration isn't one of his virtues, nor does it arise until very late in the tradition; the Founders were almost the first generation to have widespread belief in religious toleration as a virtue. (The older tradition held that 'error has no rights,' as you doubtless know.) Toleration of ethnic/racial diversity is even younger than that; I'd say it has become widespread as a notion of virtue since the mid-20th century, here in America.
Participation in the process is only virtuous if you are yourself virtuous, for Aristotle; it is crucial that virtuous people give their attentions to the state and its governance, but he would say that people who aren't virtuous should be discouraged from doing so as much as possible (even barred from it, if they can be identified as such). This has a natural law footing: virtuous people will by their nature tend to do the right thing for the right reasons, and thus governance is naturally best entrusted to them. Vicious people will tend to do the wrong thing (or, even if they hit upon the right thing, do it for corrupt reasons). Thus, according to their nature, it's best to exclude them from power.
I think the Founders thought something more like that than Americans have come to do, which explains why they wouldn't entrust the power of voting for a President to ordinary citizens but only to the Electoral College; and why they did not frame voting rights in the Constitution, but allowed states and localities to impose all sorts of requirements (most famously property) as a proxy for virtue. In that way you could say that the Constitution was natural law oriented, but it is a way America has tended to evolve away from, especially from the 15th Amendment onward.
“I think the Founders thought something more like that than Americans have come to do, which explains why they wouldn't entrust the power of voting for a President to ordinary citizens but only to the Electoral College; and why they did not frame voting rights in the Constitution, but allowed states and localities to impose all sorts of requirements (most famously property) as a proxy for virtue.”
I believe the Framers left voting rights out of the Constitution not due to any notions about the average citizen’s virtue but simply because they believed the national government had no business dictating such rights or qualifications to the states. It was in keeping with the federal structure they created.
Property qualifications for voting at the state level had nothing to do with perceptions about a citizen’s virtue. Rather, property meant that an individual had skin in the game. As such, those with property could more immediately understand the impact legislation could have on private property.
I think you’re missing the most important way in which the Constitution is natural law oriented. It’s structure clearly indicates there are limits on the power a legitimate government should possess. These limits existed prior to any laws or positive actions by government. Likewise, our rights exist prior to, and not the gift of, government. They were established by the “laws of nature and nature’s God.” Consequently, the civic virtue required by the Constitution of citizen and official alike also includes the discipline, loyalty, and commitment to protect those limits and rights.
Again, 'Nature and Nature's God' is Declaration language. The Constitution's frame is "We the People," who are doing this for such-and-such purposes spelled out in the Preamble, none of which are "to realize the order implied by nature," to say nothing of Nature's God. Then the Constitution expressly forbids religious tests, so that anyone who believes in a very different sort of god must be admitted to the government. Then is appended the First Amendment, which states that no one can be required to believe in Nature's God anyway, nor to think His dictates important either to their lives or to the system of government.
So the Declaration, yes. It's a natural law document. But the Constitution, no. It explicitly walks away from that frame, and sets up a system of positive law that is walled-off from interpretations of natural law. And while it is true that the Constitution envisions a (very) limited Federal government, Article V imposes no restrictions requiring it to remain small. Formally, the Federal government can become as powerful and all-encompassing as 3/4ths of the states are prepared for it to do. Even the Bill of Rights can be repealed under Art V, if there are the votes to do it.
Post a Comment