West's Founding, II

West has a bedrock notion that he wants to convey. That notion is that equality and liberty, as the Founders understood them, were the same thing: specifically, both terms mean that no one is born a natural slave. We are all born free, and therefore we all are in that strict sense equals.

That puts him at odds with most of the scholarship, which have treated equality and liberty as being different notions -- even opposing or incoherent ideas. If we are really free, then inequality will surely result as natural talents, differential fortunes, and other things create unequal results. (As West points out, the scholars are led astray here by de Tocqueville, whose use of the term 'equality' is the French and not the American notion, and really is a commentary on 'equality of condition.') 

It also creates a conceptual problem because the Founders definitely do believe that some people are natural aristocrats. By this they meant roughly what Aristotle meant, i.e., that some men are more capable of excellence, i.e., "virtuous" than others. Jefferson says this explicitly in his letters, but he is not alone. James Wilson wrote, "When we say that all men are created equal, we mean not to apply this equality to their virtues," which may vary widely. (73; all page numbers in this series will be to West unless otherwise noted.) The Founders, like the Greeks, take it as a matter of first importance to identify those who are exceptionally virtuous for government service and refer to this mission over and over in their state constitutions and similar statements (ibid).

Nevertheless, this capacity for excellence does not create a natural class of masters: the idea is that free and equal men shall choose their leaders from among themselves. The power of legitimate governing arises from this election, without which no superiority in intelligence or virtue (which are not equivalent terms) justifies the exercise of power of one over another.

West's project ends up treating a number of terms as being actual equivalents: "In these documents," he writes, "'created,' 'born,' an 'by nature' are equivalent terms. 'By nature' means as they really are, independent of customs and traditions. What human beings really are -- with respect to freedom -- is individuals who are neither the masters nor the slaves of other people." (25) This gives rise to the concept that human beings have a natural right to be treated in accordance with that equality, which in nature (i.e. pre-politically) is absolute. Social compacts may create a class of governing men with legitimate power, but in nature there is not one.

Likewise, even social compacts end up being limited because there are some parts of this equality that cannot morally be given away. These are the 'inalienable' rights, which include "life, liberty, and property" or "life, liberty, and the pursuit of happiness," but also several variants West finds regularly included in the many lists composed by the Founders in various documents. "Other rights sometimes mentioned include reputation, keeping and bearing arms, freedom of speech and press, and assembly." (27-8) All of those except 'reputation' have survived to us at least as ideals; that one, I notice, is a right to defend one's honor. Our society has tried to dispose of honor as a value, though it is in fact impossible to do that; instead we end up fighting over whether George Washington or George Floyd should be honored with statues and street names. The Founders' earlier model, which entailed a right to defend honor with violence, was defensive: it was not a right to initiate violence, but to demand that no one be allowed to sully your honor without being subject to answering to you for it.

The consequence of this idea of natural right is that everyone is "rightfully free of the violence of others," an idea we usually today hear mostly from libertarians. (28) This also imposes natural duties of others not to impose upon us their violence, within only the limits of ensuring the public peace (e.g., religious liberty is not coherent with endorsing the sacrifice of even one's own children). (33)

This collection of natural rights and corresponding natural duties is, together, what West believes the Founders meant by "natural law." This set of laws must be respected by any decent government, and a government that comes to violate these things is  -- as the Declaration will tell us -- rightfully set aside. It is out of order not only with human nature but nature in general, and thus the will of the author of Nature, however you conceive of that. Jefferson wrote that it applies to all societies and to foreign policy, i.e., the interaction of societies. "[T]he moral law to which man has been subjected by his creator... The moral duties which exist between individual and individual in a state of nature, accompany them into a state of society." (39)

West points out that this idea does not imply a lack of conflicts, even violent ones. "In the founders' theory, it is possible for one person to have a natural right to violate the natural rights of another," he says, pointing to an example from Jefferson about two ships that meet at sea, one starving and the other well-supplied. The right to life being the first natural right, Jefferson said, the starving ship would have the right to extract food by force should the other ship refuse to sell them food. The right to property, although also a natural right, is derivative of the right to life: you are entitled to collect and use property as a way of sustaining your own life. (40-1) It is surprising to find a right to piracy, you might think, but in fact pirates and the American colonies had an interesting historical relationship and a lot of American ideas were tried out by buccaneers first. 

Nevertheless West is clear that this "does not create a rightful claim against others to provide [those with unequal resources] with resources -- except in extreme circumstances[.]" (49) "Modern liberal rights are not natural because no one possesses food, transportation, respect, and access to medical care by nature." (ibid.) I note that he is using the term "respect" here as a non-natural right, whereas "reputation" was a natural right -- one rather difficult to disentangle from 'respect' in ordinary language. He has in mind Rawls' usage, which is that those who are not respected by society have a claim on having respect somehow 'transferred' to them, which is unworkable.

This argument exposes West to a large number of criticisms from scholars; he exposes himself to more, as I will explore in later sections. The most obvious current criticism is that the Founding was either hypocritical or racist, sexist, etc., in denying equality and liberty. He has quite a bit to say about that, so I will treat that next.