West's Founding IX: Moral Laws

We are reaching the heart of what interested me about this book: the refutation of many scholars, whose work has influenced my own understanding, who held that the Founders had not meant for the government to morally shape individuals as a matter of respect for individual liberty. West is going after some big players here, including Gordon Wood, Alan Gibson, Harvey Mansfield, and Peter Onuf; he is also partly rejecting Thomas Pangle, Jean Yarbrough, and even Leo Strauss (to whom he is obviously philosophically aligned to some degree, but whose arguments he finds flaws with on several occasions). 

West is doing it right, too: not offering a different interpretation, but offering new textual evidence that seems clear-cut on the point. It is possible that he is leaving things out; for example, at one point he offers an argument that the Founders often aimed at a generalized Christianity, but he doesn't mention Jefferson's well-known kind words about Islam. Now, those words were more foreign policy and diplomacy than anything else, and there is more to the story. Still, the fact that it goes unmentioned makes me wonder what else he has omitted that might not fit his vision.

The silence proves nothing, however; his actual inclusions are very impressive. 

One of them has limits he is up-front about. He quotes John Locke on the 'four kinds of moral law,' and notes that there is no evidence he knows of that the Founders used this concept (though some of them read the book in which it is mentioned). (188-9) Rather, West says, he is bringing it up to give us a framework for considering how the Founders' actions can be interpreted. Locke is himself following Aquinas' tradition for the most part, which West doesn't mention at all. 

Locke's four laws are: 

1) Divine Revelation ("Eternal Law" for Aquinas)

2) Natural Law ("Natural Law" for Aquinas)

3) Civil Law ("Human Law" for Aquinas)

4) "The law of fashion and private censure" (This is not a kind of law for Aquinas, but rather the domain of honor and shame)

For the first, he has citations even from Jefferson that a foundation on the divine is the only firm foundation for the defense of liberty. (190-1). Divine law is known to us only by revelation, and reason cannot access it directly. 

Natural law is derived by reason from what is observed about Creation; to know God's works is to learn something about God and God's intentions. What reason can derive about the moral structure of the world is of the second water, but it is still higher than man-made civil law. Human-made laws that violate natural law are and ought to be void; as we have seen throughout, the Founders thought a system of civil law that violated natural rights ought to be overthrown. 

Civil law is the least interesting category. It should serve the natural law by spelling out consequences for violating the natural rights of others, and by offering non-violent ways of settling disputes ('torts,' for example). Here too is public education, which is supposed to shape and train the virtues in the hope of raising up citizens fit for a free society, its offices, and its duties. 

The fourth category is one that I wouldn't normally think of as being a sort of law, but West makes a good case that the Founders might have done. As he points out, the Founders used this a lot to try to shape moral society through praise, condemnation, celebratory speeches, funerary speeches, honors, shames, and so and and so forth. 

West is also good on the limits of Enlightenment thought in the view of the Founders. A lot of scholars view the Founding as an Enlightenment project. West shows that the Founders, though aware of the Enlightenment and interested in it, were also skeptical of how far pure reason could take you. He has good citations to Jefferson, Adams, Madison, and Washington's Farewell Address. (198-200)

So, if the ultimate metaphysical ground for natural law is the divine law, ought government to promote religion? West argues that the Founders were strongly in favor of this almost across the board; he gives an argument that Washington thought the government should promote religion even if it were thought to be a false religion rather than to leave the common people without a divine warrant to encourage their practicing of good habits. (Confer with Aristotle's arguments, well known to readers of this page, that virtue is a kind of habituation of one's character through practice until excellence becomes habitual.)

West concludes that the Founders were open to government promoting religion, and less open to government supporting a particular religion. They defended free exercise, but did not defend the idea that all religions were equally deserving of support from the government. As Tom noted in the comments below, states did in fact have state religions at and after the Founding. West argues that, at the Federal level, there were three basic approaches to what ought to be done:

1) A specific Protestant denomination;

2) "[W]hat Adams called 'the general principles of Christianity'"

3) "[T]he God of Liberty who endows all men with inalienable rights, who is identified neither as biblical nor anti-biblical." (212)

Perhaps other approaches are possible, but that is what he thinks the Founders did.

The chapter closes with some other clear-cut encouragements by the Founders in the direction of actively using government to develop citizen virtue. The strongest one is militia service, which is meant to inculcate courage but also the sense that the defense of the free state is a personal duty of every citizen. Jefferson thought we should all carry guns, and use them regularly:

"A strong body makes the mind strong. As to the species of exercise, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind... Let your gun therefore be the constant companion of your walks." (216) Jefferson means here taking walks in the country, and shooting small game and birds-a-wing over land. There are too many people for that today, and too many cities, but it was common practice even among proto-environmentalists like Aldo Leopold in his A Sand County Almanac.

That also brings to my mind my favorite quote from Francis Parkman, one of America's great early naturists and educators. "For the student there is, in its season, no better place than the saddle, and no better companion than the rifle or the oar."

I am convinced, with only the reservation mentioned above, that the Founders were hugely interested in shaping American moral character in salutatory directions. They could adopt this without much fear because they had an idea of the good to which 'salutatory' pointed that was rooted in natural law. The great hazard of a similar movement today -- that 'health' would become aligned with the interests of the state and its powerful corporate bedmates -- was not present because of a robust, rooted philosophical tradition.