Bentham and Mill: The Utilitarian Movement

Two of the most important political thinkers impacting the 19th century were Jeremy Bentham and John Stuart Mill, who represent the first outstanding figures of the utilitarian movement. Their influence, like the influence of Darwin was already being felt in the political world by the time of the American Civil War, but in America the full impact of their thought was not felt into later, though the political tendencies they represent are archetypically American.

Jeremey Bentham

Jeremy Bentham (1748-1832) was born more than a century before the American civil war and died the year after De Tocqueville visited America. He is credited with being the founder of Utilitarianism, a movement whose most famous exponent is John Stuart Mill. Bentham’s father was a lawyer, and Bentham was a child prodigy—brilliant from his youth. Like others we have studied, Bentham studied but quickly became disillusioned by the law, preferring legal theory and philosophy to the daily drudgery of legal practice. He never married, lived alone, and after his father’s death was able to devote his life to scholarship. [1]

Enlightenment Skepticism. Bentham was deeply influenced by Hume’s skepticism about religion and knowledge and by Bentham’s political theory. He was an empiricist, connecting all knowledge to sense impressions, a nominalist, denying the reality of universal concepts, a hedonist, building his ethical theory on pleasure, and inclined to distrust tradition, as is characteristic of Enlightenment figures. His movement towards utilitarianism began while listening to the lectures of the British jurist, William Blackstone, who was a defender of the common law and natural law traditions. He came to believe that there is no natural law apart from human decisions, making him a forerunner of what is called “Legal Positivism,” that is that all law is man-made.

Bentham was deeply influenced by the French Enlightenment and embodies many of its fundamental ideas. He was deeply skeptical of tradition, optimistic about the powers of human reason, confident of the human capacity to structure a better society, and saw no need for religious faith in building a human life. He believed in the Enlightenment ideal of progress, which is achieved by a consistent process of rationally seeking pleasure and avoiding pain.

Egoistic Hedonism. Underlying Bentham’s work is an “egoistic hedonism.” The primary motive of human action is the maximization of pleasure and the minimization of pain. He rejects any kind of fundamental social relationship between people, and embraces what might be called, “modern radical individualism.” Communities are merely combinations of individuals seeking their own self-interest. The identity of a community is simply the sum of the interests of the individuals that compose it. For Bentham, human beings are “social monads” bound together by passing hedonistic encounters of self-interest motivated by natural desire and restrained by rational calculation of interest and human law.

One can stop here and reflect that Bentham rejects the entire classical picture of human beings as embedded in a family and society and emerging from the influences of that family and society. He fails to see how much his views are formed under the influence of the Enlightenment philosophers and community to which he himself belongs. He ignores the facts of the way in which human beings are in fact formed, preferring a radical individualism in which human beings are monads, cut off from one another, joining in social relationships for the purpose of achieving their own pleasure. In such a view of human nature, human beings become radically individual and human striving is to be solely constrained by the power of the state. It is the limitations and ultimate danger of this particular view of human nature and society that is the constant subject of this series of blogs.

Utilitarian Principle. Given the radical individualism Bentham accepts, he believes that societies can only be wisely structured around the “utilitarian principle” that the approves an action, social structure, or political decision based upon whether it increases or decreases the pleasure of the parties impacted, in other words whether it effects the greatest happiness or good for the greatest number of those impacted by the decision.

Utilitarian Calculus. Bentham created a “utilitarian calculus,” a potentially quantitative way in which a utilitarian might calculate the correct decision on the basis of what we might call “a reductive utilitarian calculus” consisting of the intensity, duration, certainty, and propinquity of the anticipated pleasure or avoided pain. On matters of social consequence, the task was to calculate the anticipated results for the greatest number of people. As a radical individualist, Bentham does not believe that there is any “Group Interest” or “Common Good” separate from the goods of individuals, which for social decision making are simply added together and averaged for the purpose of public policy.

It is this aspect of what might be called “Simplistic Utilitarianism” that is most subject to criticism. On practical grounds, such a calculus is impossible not just for individuals, who often do not know or understand what is in their best interests, and for societies, who are even less subject to such a reductive calculation. More fundamentally, the calculating the good of individuals and then the good of mass numbers of people in a modern society is practically impossible. It is also theoretically impossible. Human beings are simply not subject to such a reductive analysis as Bentham proposes. Human beings are inclined towards rapidly changing ideas of what might bring them pleasure and human freedom makes such a calculation impossible.

Bentham did not originate the fundamental ideas of utilitarianism, which he took from Hume, Hutcheson, and others, but he was its most brilliant and systematic popularizer and employed the method as a part of his pollical and social critiques of the status quo in England and Europe. The culture, history, traditions, and existing social structures of a society all must be judged and modified strictly according to the utilitarian principle. Denying traditional morality and natural law, Bentham was left without a theoretical basis to deny the application of power to any social issue, a position that would be further embedded in American jurisprudence by Oliver Wendall Holmes and the “legal realist” movement we will look at in subsequent blogs.

John Stewart Mill

John Stuart Mill’s life (1806-1875) spans the period before and immediately after the American Civil War. Mill’s father became a follower of Jeremy Bentham shortly after Mills’ birth. Mill was early indoctrinated into the thought of Bentham and the Utilitarian principle. At seventeen, he attended Bentham’s lectures and founded the “Utilitarian Society.” Mill was rigorously educated under the care of his father, and studied law under the Benthamite legal thinker, John Austin. In adulthood, after a brief period of rethinking his commitments, he became the primary and still most famous and influential follower of Bentham and defender of the Utilitarian principle. He was never a professional philosopher, but employed his entire life by the East India Company.

In his early twenties, Mill suffered a “mental crisis” in which he was forced to confront the danger of the “dissolving effect” of analysis on reason and human happiness. Mill’s father, whom he loved and respected, neglected the moral and emotional side of his son’s education, making reason his religion. Mill was to say that Bentham and his father made Utilitarianism into a “a creed, a doctrine, a philosophy, a religion.” [2] He was left without emotions and moral sentiments important for a balanced human life. He recognized that there were problems with his education and with the views of Bentham and his father. When he emerged from the crisis, Mill defended a more moderate form of utilitarianism than Bentham. There have been questions about the exact nature of Mill’s relationship with the Anglican church and with Christian faith. There are those who believe he was an agnostic. Others believe that he had a friendly relationship (which he did) with the Anglican church, having a close friend who was an Anglican priest, giving generously, attending frequently, and near the end of his life taking on some small responsibility. [3]

Rejection of Bentham’s Moral Calculus

Mill rejected Bentham’s moral calculus formula, which Mill felt was impossible for reasons already mentioned. Fundamentally, Mill rejected Bentham’s quantitative approach for a qualitative approach that judges pleasures according to their “higher” or “lower” quality. One cannot simply judge pleasure as a generic concept according to a fixed formula. A moment’s reflection shows that Mill is correct. Is there any kind of commensurability between the pleasure of eating a good meal, watching a baseball game, playing a game of cards or chess, winning a court case, reading a great novel, discovering a cure for cancer, solving a social problem, and contemplating the Eternal Goodness, Beauty, and Justice of God? How could one compare them in such a way as to judge between them? Obviously, the task is impossible.

Rejection of Totalitarian Majoritarianism

Mill also recognized that Bentham’s formulation of the Utility Principle was subject to misuse by majorities to create a form of majoritarian tyranny.  Mill formulated his version of utilitarianism with a strong ideal of the importance of human freedom and liberty, which liberty states are not to infringe upon to the maximum extent possible. His work, On Liberty will be the subject of another blog. In my view, Mill is correct in this fears that the utilitarian principle can and sometimes is used in ways that actually undermine the kind of liberty that both Bentham and Mill are trying to defend. Mill’s formulation is more humane and sensitive to the human person than is Bentham’s formula but both suffer from the defect inherent in the principle itself. The principle is best conceived as a principle of decision among policy alternatives, not an ultimate principle of political decision per se. In other words, lacking a notion of the common good that is beyond a calculation of individual self-interest, there is not overarching notion of the Common Good to guide policy makers.

A Christian Utilitarianism?

In Utilitarianism, Mill defends his doctrine against religious objections in a most original and profound way:

If it be a true belief that God desires, above all things, the happiness of his creatures, and that was his purpose in their creation, utility is not only not a godless doctrine, but more profoundly religious than any other. If it be meant that utilitarianism does not recognize the revealed will of God as the supreme law of morals, I answer that a utilitarian who believes that whatever God has thought fit to reveal on any subject of morals must fulfill the requirements of utility in a supreme degree. But others besides utilitarians have been of the opinion that the Christian revelation was intended, and is fitted to inform the hearts and minds of mankind with a spirit which should enable them to find for themselves what is right, and incline them to do it when found, rather than to tell them except in a very general way, that we need a doctrine of ethics, carefully followed out to interpret to us the will of God. [4]

There is a great deal in this section of Mill’s Utilitarianism, with which a Christian can agree. Mill is correct that the human race was created for happiness, and a Christian can accept this postulate with the provisothat relationships with God, other human beings, and creation are all grounds for human pleasure and the achievement of the kind of happiness human beings were created to enjoy.

Christians would also agree that God did not create human beings as “automons” who mindlessly follow a set of prescribed rules. This, in fact, is the exact critique Jesus made of the religious leaders of their own day, who substituted obedience to a set of rules for service to God and others in love. Both Kantian conception of duty and the Utilitarian concept of maximizing the greatest good for the greatest number of people can be incorporated into a functional Christian approach to politics and morality, which requires Christians to act in wisdom and love towards God, themselves, their community, and the world.

Conclusion

We will return to Mill when we look at his defense of individual liberty in On Liberty. For now, it is enough to remember the basics of his approach to morals and public policy, and to internalize the truth that is embodied in the utilitarian principle: those who must make political decisions are often forced to make decisions in unclear and morally difficult circumstances. In such circumstances, the choice between options may boil down to which choice has the maximum potential to increase human happiness and minimize harm.

The utilitarian impulse also reminds policy makers and those who implement policy that there are limits to what can be accomplished, however worthy the goal. The inevitable limitations on the power of government and policy makers forces utilitarian calculations concerning how much power and political capital should be spent on any given initiative given the likely potential of the initiative to increase human happiness or avoid human suffering.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Much of this blog as it relates to Bentham is based upon “Jeremy Bentham” in the Stanford Encyclopedia of Philosophyhttps://plato.stanford.edu/entries/bentham/ (downloaded November 30, 2021).

[2] John Stuart Mill, On Liberty edited by Currin V; Shields (Indianapolis Indiana: Bobbs-Merrill, Library of the Liberal Arts, 1968). I have relied on the introduction for the quotations from Mill.

[3] See, Timothy Larsen, John Stuart Mill: A Secular Life (Oxford England: Oxford University Press, 2018.)

[4] John Stewart Mill, Utilitarianism (New York, NY: Bobbs Merrill, 1967). 28.

Constitution 12: The Civil War Amendments

Last week, we looked at the Emancipation Proclamation of 1863 and the Presidency of Abraham Lincoln to the war’s mid-point in 1863. After the battle of Vicksburg, the Union navy controlled the entire length of the Mississippi reiver, cutting the Confederacy in half. Lee’s army retreated from Gettysburg, morally wounded. The end-phase of the war had begun.

The Union Victory and Lincoln’s Death

Although Lee would prove a capable leader time and time again during the ensuing 18 months, fighting a long retreat, the Army of Northern Virginia never again reached the same level of greatness it achieved during the first half of the war. In addition, in Ulysses S. Grant, Lincoln found a general who was willing to both use the industrial might of the North and expend the lives necessary to win a decisive victory. He pounded the Army of Northern Virginia until it was battered into defeat. By April of 1865, Lee’s army was exhausted, surrounded, and unable to continue. On April 9, 1865 at Appomattox Court House, Lee surrendered his army. Although the war would continue for a while longer, by the November 1865, the last holdouts had surrendered.

Lee’s surrender resulted in a national celebration. On April 11, two days after Lee’s surrender, Lincoln spoke to the crowds around the White House, in what would be his last public address. In that speech, he addressed the issues that would have to be addressed in the reconstruction of the nation after the end of hostilities. Three days later, John Wilkes Booth slipped into the President’s box at Ford’s Theatre and shot the president, fatally wounding the 16th President. He died early the next morning.

Without Lincoln’s moral authority and determination to moderate the influence of the Radical Republicans and cajole the Southern leadership into a “malice free” reconstruction, the leadership of the reconstruction took on an retaliatory character, which alienated the South. In addition, Lincoln’s deep dislike of slavery, and the affection the now freed slaves felt towards him because of his leadership in winning their freedom, would not be present to give impulse to the changes necessary to enact into law the victories won on the battlefield as well as to restore the defeated southern states to statehood. His death was a disaster for North and South alike.

13th Amendment

Despite the Union victory, amendments were necessary to embody in the Constitution the freedom declared during the Civil War by the Emancipation Proclamation. The Thirteenth Amendment was passed by the Senate on April 8, 1864, before the end of the war and Lincoln’s death, and was ratified by the states by December 6, 1865. This amendment provided that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” [1] Its impact was to undo the Dred Scott decision granting property rights in slaves and nationalize the freedom granted to slaves by the Emancipation Proclamation, which was enacted under the president’s war powers, with certain exceptions.

14th Amendment

On April 9, 1868, three years after the War’s end and Lincoln’s death, the Fourteenth Amendment was ratified by the requisite number of states. Section 1 of this Amendment provides as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [2]

This section of the 14th Amendment has been the most important of the Civil War Amendments, because of its determination that the privileges of United States citizenship, due process of law, and equal protection of the law are not only applicable to the national but also to state governments. Over the years since it was ratified, this amendment has been the subject of much litigation and the vehicle for incorporating many federal rights into the states.

The 14th Amendment contains other provisions that are of importance. Section 2 repealed the “three fifth clause” of the original constitution that failed to fully count the citizenship of black voters was specifically undone. Together with the 13th Amendment, this article clarifies that all males over twenty-one years of age are entitled to vote. This provision also allowed the vote to be denied to those who served in the Confederate government after taking an oath of office to the United States.

Section 3 allows Congress to prevent those who took an oath of allegiance to the U.S. Constitution before the Civil War, from holding office if they “engaged in insurrection or rebellion” against the Constitution. The intent was to prevent the President Johnson from allowing former leaders of the Confederacy to regain power within the U.S. government after securing a presidential pardon.

Section 4 prohibited the former southern states from payment of any of the debts they had incurred during the Civil War or from compensating former slave owners for the loss of their property. This prevented Southern states from repaying debts to fund the war, making any future insurrection less possible and preventing those who financed the war from recouping their losses.

Section 5 allows Congress to enforce the provisions of the amendment by appropriate legislation, powers that became of importance in the 20th Century with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Importance of the 14th Amendment

As indicated, the most important of the Civil War Amendments is the  14th Amendment. In recent years, the Supreme Court has applied the protections of the 14th Amendment on the state and local level. [3] For example in Brown v Board of Education 347 U.S. 483 (1954), the Supreme Court overturned the “separate but equal” doctrine established in Plessy v. Ferguson 163 U.S. 537 (1896), ruling that segregated public schools violate the equal protection clause of the 14th Amendment. In Loving v. Virginia (388 U.S. 1 (1967), the Supreme Court struck down a Virginia Statute outlawing interracial marriage on the basis that a statutory scheme preventing marriages between persons solely on the basis of race violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In these and other similar cases the court has ruled on cases related to the consequences of the Civil War. [4]

Procedural and Substantive Due Process

It has long been a question of jurisprudence whether due process only protects one’s rights to a fair judicial procedure or whether it has substantive force, protecting personal liberty. The distinction between procedural and substantive due process is an important one. The debate over this issue extends all the way back into English Constitutional history, and the founding fathers and others were not of one mind about whether the Constitution’s due process clauses protected substantive rights. [5] Nevertheless, the Fourteenth amendment has been interpreted throughout its history in substantive ways, not always with positive results.

Before enactment of the 14th Amendment, the decision in Dred Scott v. Sanford 60 U.S. 393 the due process clause of the 5th Amendment was interpreted to protect the rights of slave-owners in the property, a decision that is universally condemned by historians of the court In Lochner v. New York, 198 U.S. 45 (1905) the court invalidated a state law creating maximum work hours per week as denying the right of contract, thus reintroducing the doctrine into American jurisprudence. Lochner is not a well-regarded decision of the court and was overturned in West Coast Hotel v. Parish 300 U.S. 397 (1937).

Since West Coast Hotel v. Parish, the Supreme Court has essentially employed a two-tiered analysis of substantive due process claims.

  • Legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law may be overturned only if it serves no rational government purpose.
  • Legislation concerning “fundamental liberties” is subject to strict judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose. [6]

This second category of “fundamental liberties” is divided into two sub-categories, those rights which are fundamental because they are within the Bill of Rights and those which are not within the Bill of Rights, but which are deemed fundamental by the Supreme Court. It is this category that has provoked the most controversy. Beginning with Griswold v. Connecticut 381 U.S. 479 (1965) the Supreme Court began a series of cases, most importantly Roe v. Wade410 U.S. 113 (1973), where the court found a fundamental liberty under circumstances where large numbers of people disagreed and continue to disagree. [7]

15th Amendment

1n 1886 Congress proposed the 15th Amendment, which was ratified by the states on July 9, 1868. The 15thAmendment to the Constitution was added to the Constitution to clarify the voting rights of former slaves. It provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” In its second section, Congress is given the power to enforce the article by appropriate legislation. [8] The 15th Amendment is the final of the three amendments added to the Constitution after the Civil War.

Subsequent to the Civil War, this Amendment was added to ensure the voting rights of former slaves. Initially, the Amendment was successful, but as radical reconstruction gradually failed and the southern states began to pass their own laws concerning voting rights, a variety of measures were enacted that dramatically restricted the voting rights of black citizens, including voting rights laws that created legal hurdles, such as literacy tests, poll taxes, odd districting, and other methods. This is a sad chapter of American and especially Southern American history. De Tocqueville foresaw that the end of slavery would bring about an increase in prejudice and hostility towards the former slaves, and he was correct in his fears.

In Giles v. Harris 189 U.S. 475 (1903) the court refused to hold these laws unconstitutional, delaying full incorporation of the black community into American political society for more than another half-century. [9] However, beginning with Smith v. Allwright, 321 U.S. 649 (1944), the court began the process of invalidating state laws that interfered with voting rights of minorities. [10] The process was only completed with the passage of the Voting Rights Act of 1965, which Congress was empowered to adopt under the 14th and 15th Amendments.

Conclusion

The Civil War ended the national debate concerning slavery. What politicians had been unable to solve peacefully in the halls of Congress, the Courts, and the Whitehouse, the guns of war resolved on the battlefield. Subsequent to the war, the amendments that have been the subject of this blog were enacted to end both slavery and the legal impediments to former slaves being fully-incorporated into American society. The promise of the enactment took a century to fully accomplish. [11]

The second result of the war was the clear establishment of the national government as supreme, and the end of any theory under which the national government was simply a confederation of state governments.  The Civil War Amendments also accomplished this result over time, especially the 14th Amendment.

The second result has not been without its complications for American society. Increasingly the courts have been looked to resolve issues that might have better been resolved by Congress or the state legislatures. Remembering de Tocqueville’s understanding that all the subordinate levels of government were and are vast training grounds for development of the skills and practices of democratic self-government, the loss of both willingness and responsibility of local governments for many issues of life is one to be addressed in the future—and no easy solution comes to mind.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Constitution of the United States of America, Amendment XIII (1865).

[2] Constitution of the United States of America, Amendment XIV (1868).

[3] This process began with Gitlow v. New York (28 U.S. 652 (1925), the Court held that the due process clause of the 14th Amendment protects First Amendment rights of freedom of speech from infringement by the state governments.

[4] Beginning with Griswold v. Connecticut 381 U.S. 479 (1965) the Supreme Court has cited the 14th Amendment in cases involving contraception (Griswold), abortion (Roe v. Wade 410 U.S. 113 (1973)), and the power of states to regulate same sex marriages. (Obergefell v. Hodges 576 U.S. 644 (2015)). This line of cases presents interesting legal issues which may form the basis of a future blog, but lie outside this reflection on the Civil War Amendments.

[5] See, Nathan S. Chapman & Michael W. McConnell, “Due Process as Separation of Powers” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2005406 (2012), (downloaded November 30, 2021).

[6] Substantive Due Process, at https://law.jrank.org/pages/10589/Substantive-Due-Process-Modern-Analysis.html (downloaded November 29, 2021).

[7] This is not the time to discuss this line of cases, which must await our arrival at the 1960’s with its pervasive changes in American society. We will discuss the subject of substantive due process again when we look at the thought of Oliver Wendall Holmes.

[8] United States Constitution, Amendment Fifteen (1868).

[9] One of the tragedies of Giles v. Harris is that it was authored by Justice Holmes, one of the few of his cases to receive almost universal condemnation.

[10] Once again, I cannot go into the series of cases in which the court both denied attempts by blacks and then retreated to support such attempts in this blog. It is, however, a complex and interesting analysis, which I may undertake when we get further along.

[11] For example, the poll tax, which was one of the vehicles used to deprive black persons of voting rights was only outlawed by passage of the 24thAmendment in 1964. In many ways, this is the last of the “Civil War Amendments.”

Thanksgiving 1863: Abraham Lincoln our “Theologian of American Anguish”

This week is Thanksgiving Week, and in celebration of that event, we are looking at one of the most important of Thanksgiving Proclamations. On October 3, 1863, President Abraham Lincoln issued a Thanksgiving Proclamation. It begins:

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God. [1]

It might seem odd that Lincoln thanked God in the midst of the tragedy of civil war. The year 1863, however, marked the turning point of the American Civil War. The year began with the President finally, and after much thought, issuing the Emancipation Proclamation, which freed the slaves. Grounded by Lincoln in his powers as Commander in Chief, it was limited to slaves in the rebellious areas of the nation and read in part:

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons. [2]

The proclamation was intended to free the slaves, give moral authority to the armies of the North, and to encourage an early end to hostilities. However, the freedom proclaimed would be won on the field of battle.

The previous July, at Gettysburg, Pennsylvania and Vicksburg, Mississippi, the Union troops finally achieved long-awaited victories, which marked the beginning of the end of the Confederacy. In the victorious general at Vicksburg, Ulysses S. Grant, Lincoln finally found the leader his armies needed to roll over the talents of Robert E. Lee and the Army of Northern Virginia. The war would drag on another year and a half, and bloody battles would be fought, but the South would never recover from their losses in mid-1863.

Run-Up to the Civil War:

The years following the presidency of Andrew Jackson saw the gradual emergence of the question of slavery as an insolvable national problem. In the North, the economy was not dependent upon slave labor, but in the South it was. In addition, as de Tocqueville pointed out, the solution available in the North to the race issue was not available in the South. This led to a long period of intense conflict and political attempts to mediate the problem.

In 1820, Congress enacted what came to be known as the “Missouri Compromise.” In that year, Missouri was admitted to the Union (the first state West of the Mississippi River) as a slave state while Maine was admitted to the Union as a free state, maintaining a delicate balance of political power between the North and South. The Missouri Compromise also banned slavery in lands which had been a part of the Louisiana Purchase north of 36º 30’ which was roughly the southern boundary of Missouri.

Thomas Jefferson, who was still alive at the time, felt the compromise would not work and could lead to Civil War. His fears turned out to be well-grounded. The Missouri Compromise maintained a temporary peace, but failed to resolve the moral problem of slavery. In addition, it created a deep division between the North and the South—and a line which with the earlier the Mason Dixon Line that might demark the boundaries of a divided United States of America. [3]

Congress continued to attempt to find ways to maintain the Union by compromise. California was admitted to the Union with a requirement that one of her Senators be pro-slavery. In 1854, the Missouri Compromise was abandoned in the “Kansas and Nebraska Act” was passed, allowing slavery in a region north of the 36º 30’ line. Passage resulted in violence between pro- and anti-slavery factions.

In 1857, under the leadership of Roger B. Taney, the Supreme Court decided Dred Scott v. Sanford ruling that the Missouri Compromise was unconstitutional holding that Congress had no power to prohibit slavery in the territories, as the Fifth Amendment guaranteed slave owners could not be deprived of their property without due process of law. [4] This meant that there could be no legislative or judicial path out of the difficulties of the union caused by slavery. For the probem of slavery to be resolved, an amendment to the Constitution would be required—an unlikely event.  In my view, with the Dred Scott decision, the only path left to resolve the issue of slavery was war, which erupted four years later with the election of Abraham Lincoln as President.

In the wake of the Kansas Nebraska Act, a little-known lawyer from Illinois, Abraham Lincoln, ran against Stephen Douglas, the Senator who spearhead passage of the Kansas Nebraska Act. This election produced the famous, “Lincoln Douglas Debates.” Douglas won the election; however. historians judge he lost the debates—and in the process brought Abraham Lincoln, an obscure politician and lawyer to public prominence. In the election of 1863, Lincoln was the candidate of the Republican Party for President and won. He was inaugurated on March 4, 1861, and war commenced on April 12, 1861 when confederate troops fired on Fort Sumter in South Carolina. [5]

The years preceding the Civil War demonstrated a failure of the American political system  to end slavery peacefully. All the institutions of government, congressional, judicial, and executive failed in their duty to find a way to end slavery. Every attempt at compromise failed, because no compromise was possible with respect to so great an evil. In his First Inaugural Address, Lincoln urged a compromise and patience in resolving the issue of slavery, but that was not to be. [6] The future of the nation was to be determined on the battlefield.

President Lincoln and the First Months of the War

When Lincoln was elected President, southern states were already in the process of separating from the Union. His life was in danger. In his First Inaugural Address, the careful lawyer was on display and certain features of his leadership were evident. The speech foreshadowed the leadership he would give and the greatness he would achieve.

His appeal to the South was simple: Nothing had changed. The South was under no immediate need to separate from the Union, and no southern state had any obligation to leave the Union. Lincoln, on the other hand, had sworn an oath to “faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”  He  was warning the South that he would be compelled to take up arms to defend the union, a principle that defined his presidency. Nevertheless, the Confederacy was formed, and Ft. Sumpter attached in April of 1861. From that time forward it was clear that the fate of the Union would be decided on the field of battle.

In the first year and a half of the war, Lincoln was hampered by a series of commanding officers of the Army of the Potomac, who were either not competent, excessively cautious, outfoxed by the Commanding Officer of the Army of Northern Virginia, or hostile to his leadership.  General Robert E. Lee had been offered command of the Union armies at the outbreak of the war, but had felt loyalty to his home state of Virginia must come first. He proved to be an able general, especially in turning defensive situations into offensive possibilities. His victories in the early years of the war despite being out-manned and out-gunned were and are legendary.

It is often forgotten that Lincoln was made fun of by the press of his day and not admired by many in Washington. His first years in office were challenging, and his greatness was unrecognized. In spite of all this, he stayed the course. At the same time, the industrial might of the North was growing, its army increasing in size and capacity, and wearing down the army of the Confederacy, which was an agrarian area of the nation, lacking in the industrial potential to wage the kind of war that was emerging during the period of the Civil War.

Despite setbacks, by the summer of 1863 the South needed a victory which would force a peace process satisfactory to the Southern states. Otherwise, Lee knew the armies of the Confederacy ultimately would be overwhelmed. Lee devised a plan to invade Pennsylvania without the aid of his greatest lieutenant, General Thomas Stonewall Jackson, who had died as a result of friendly-fire injuries the previous may in the Battle of Chancellorsville. General Meade proved an able and competent opponent, and Lee lost the Battle of Gettysburg, the turning point of the war.

Thanksgiving 1863 and Lincoln as a Theologian of Politics

So it is that President Lincoln felt that the nation should thank God for the blessings of the year past. Therefore, in October, he issued this call for a National Day of Thanksgiving:

The year that is drawing towards its close, has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added, which are of so extraordinary a nature, that they cannot fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God. In the midst of a civil war of unequalled magnitude and severity, which has sometimes seemed to foreign States to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theatre of military conflict; while that theatre has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defence, have not arrested the plough, the shuttle or the ship; the axe has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased, notwithstanding the waste that has been made in the camp, the siege and the battle-field; and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom. No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy. It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings, they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty Hand to heal the wounds of the nation and to restore it as soon as may be consistent with the Divine purposes to the full enjoyment of peace, harmony, tranquillity and Union. [7]

There are features of this proclamation that appear in other works by Lincoln, and which reveal him as a profoundly religious person, with a religious attitude towards the situation of the nation. Lincoln recognizes the blessings of life even in the midst of conflict. He sees the fragility of the human condition and need for the grace of the  Almighty Most High God. He sees the Civil War as, in some way, a punishment for national sin, and especially the sin of slavery, an attitude he also reveals in his Second Inaugural Address. [8] He saw the magnitude and severity of the war as commensurate with the evil being addressed.

Lincoln, however, does not see himself or the Union as avenging angels, but as instruments of God in order that the slavery might end, the wounds of the war healed, and peace and harmony restored. Whatever the current state of the Union and his own and our national suffering, a Beneficent God was at work for good in the struggles of the Civil War. For himself and the nation, the proper response was a humble thankfulness for such blessings as had been received, repentance for the flaws that were the cause of the suffering, and a prayer for mercy and the return of peace.

Conclusion

This Thanksgiving 2021, as we hear so many strident voices from the left and the right, and the harsh voices of deluded souls captured by a “Politics of War” attempt to inflame our natural prejudices and failings, perhaps we might listen to the final counsel of our unique “Theologian of American Anguish,” [9] Abraham Lincoln:

With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan–to do all which may achieve and cherish a just and lasting peace among ourselves, and with all nations. [10]

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See, “Abraham Lincoln’s Proclamation of Thanksgiving” at the American Battlefields Trust, https://www.battlefields.org/learn/primary-sources/abraham-lincolns-proclamation-thanksgiving?ms=googlepaid&gclid=EAIaIQobChMIspT0peuf9AIVZnxvBB1AdAhPEAAYASAAEgJX9_D_BwE (downloaded November 17, 2021).

[2] See, Abraham Lincoln’s Emancipation Proclamation January 1, 1863 at the American Battlefields Trust,https://www.battlefields.org/learn/primary-sources/abraham-lincolns-emancipation-proclamation?ms=googlepaid&gclid=EAIaIQobChMI_8W4ru6f9AIVESM4Ch1rKQvEEAAYASAAEgJ4X_D_BwE (downloaded November 17, 2021). The proclamation excluded the then union occupied areas of except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans.

[3] Although a footnote to the history, the term “Mason Dixon Line” was used as a part of the language of the Missouri Compromise, referring to an earlier dispute between the between the British colonies (now states) of Maryland and Pennsylvania/Delaware. In popular terminology it refers to the cultural line between the Northern and Southern parts of the United States.

[4] Dred Scott v. Sanford, 60 U.S. 393 (1857).

[5] In his First Inaugural Address, Lincoln attempted to pacify the southern states, which were in the process of leaving the union, urging a constitutional and legal resolution to the problem. This, like all previous attempts at compromise, failed. Abraham Lincoln, “First Inaugural Address” (March 4, 1861).

[6] Abraham Lincoln, “First Inaugural Address,” previously cited.

[7] Abraham Lincoln, “Thanksgiving Proclamation” (October 3, 1863).

[8] Abraham Lincoln, “Second Inaugural Address” (March 4, 1865).

[9] The title of this week’s blog comes from a wonderful little book by Elton Trueblood, Abraham Lincoln: Theologian of American Anguish (New York, NY: Harper One, 1973).

[10] Abraham Lincoln, Second Inaugural Address (March 4, 18650>

De Tocqueville No. 4:

De Tocqueville 4: Threats to Democracy, Race, and the Civil War

I have mentioned that Democracy in America is such a rich book that an analysis of it might go on forever. This week’s blog is the last in this series and deals with two inter-related issues: (i) generic threats to American democracy and (ii) the specific threat posed by slavery.

As previously mentioned, de Tocqueville was a friendly but not uncritical observer of American culture. He visited the United States in 1831 at a time when American democracy was less than a half century old. Nevertheless, he and his companion, Gustave Beaumont, saw flaws in American character and potential structural threats in the Constitution and the form of government it created. They also perceived both the social evil of slavery and potential for civil war.

When de Tocqueville arrived, Andrew Jackson, an unabashed populist, was President. His presidency ushered in a new era in American politics. His party supported state’s rights and the extension of slavery into new Western territories. Jackson was personally a slave owner. He was opposed to many of the innovations that had been projects of the Whig party and his predecessors. For example, he was opposed to the creation of a National Bank favored by business and industry and would ultimately veto the extension of its charter.

In 1831, religion was flourishing in America. Charles Finney, the great evangelist and founder of Oberlin College was at the peak of his powers, and there was a rise in church membership and activity. The cotton gin had been invented, railroads were being formed, and industry was growing. American interest in business, commerce, and manufacturing were resulting in rapid growth. Already by de Tocqueville’s time, no nation except Great Britain had so large a merchant fleet, and America was becoming an international economic power.

There were, however, storm clouds on the horizon of the American experiment. Nate Turner’s rebellion had occurred in which there were multiple deaths, and the issue of race and slavery was on the public mind. In Virginia, a bill to abolish slavery had been introduced into the legislature. Other states had abolished or would abolish slavery. The next year, an obscure lawyer and would be politician from Sangamon County, Illinois, named Abraham Lincoln, filed to run for the Illinois General Assembly, a campaign he would lose. His greatness would be winning when it counted.

Generic  Threats to Democracy

American Politicians and Politics

De Tocqueville perceived certain aspects of American democracy that created risks to its future. As indicated above, de Tocqueville visited the United States immediately following the creation of the Democratic Party and the decay and end of the Federalist Party and the Whig party. In analyzing American democracy, de Tocqueville early on observes:

On my arrival in the United States I was surprised to find so much distinguished talent among the citizens and so little among the heads of government. It is a constant fact that at present the ablest men in the United States are rarely placed at the head of affairs; and it must be acknowledged that such has been the result in proportion as democracy had exceeded its former limits. The race of American statesmen has evidently dwindled in the course of the last fifty years. [1]

The constant agitation of political parties and the rough and tumble nature of American politics meant that the best citizens often did not enter politics, leaving the public square open to demagogues. In addition, many politicians entered politics not for reasons of conviction or the public interest but to further their own private ambitions and fortunes. De Tocqueville was in particular critical of Andrew Jackson and a soon to be Texas martyr, David Crocket, a Tennessee congressman. [2] Beyond Jackson and Crocket as persons, the visitors perceived that the current leadership of the nation was not nearly so wise as the generation of the founders.

The Tyranny of the Majority

De Tocqueville observed that American democracy might descend into a kind of tyranny if unscrupulous leaders used public passions to allow a majority to abuse its great powers under the American Constitution. He could see that legislatures are inevitably swayed by the views of interests and seek to form majorities out of these interests. De Tocqueville felt that the main evil in the political institutions of the United States was not the weakness of the legislature, which had often been the case in Europe, but its potential “irresistible strength” if moved to tyranny. [3] The very power of the Congress might result in a “despotism of the legislature.” [4]

Once political parties began to treat politics as a winner take all contest, the politicians themselves would lose power over the course of events and be driven along my social forces leading to tyranny. [5] Thus, the danger of despotism is especially to be feared in democratic ages. [6] This is a danger we continue to experience.

Misuse of Political Power

From the perspective of recent events, it is interesting to note that de Tocqueville recognized that the Constitution itself had potential flaws that might be used by misguided persons in such a way as to damage American democracy. He believed one of those provisions was the power to impeach. Thus, de Tocqueville observes:

Nothing can be more alarming than the vagueness with which political offenses, properly so called, are described in the laws of America. Article II, Section 4 of the Constitution of the United States runs thus: The President, Vice President, and al civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Many of the constitutions of the states are even less explicit. [7]

De Tocqueville felt that the phrase, “or other high crimes and misdemeanors” could be allow the power to impeach to be used as a purely political weapon rather than as a way of punishing criminal behavior. With some degree of perspicuity, de Tocqueville observes “When the American republics begin to degenerate, it will be easy to verify the truth of the observation by remarking whether the number of political impeachments is increased.” [8]

Abuse of the Power to Spend

The power to tax and spend is another power that de Tocqueville recognized could pose a threat to American democracy:

The disastrous influence that popular authority may sometimes exercise upon the finances of a state was clearly seen in some of the democratic republics of antiquity, in which the pubic treasure was exhausted in order to relieve indigent citizens or to supply games and theatrical amusements for the populace. [9]

The power to spend was a cause of the fall of the democracies of Athens and of Rome, and de Tocqueville recognized that America was not without vulnerability to this threat. Interestingly the danger was not foreseen by the generally far-sighted Alexander Hamilton in the Federalist Papers, but by the time of de Tocqueville wrote, it was obvious—and even more obvious today. [10]

Centralization of Power

All governments, imperial, democratic, or oligarchical are characterized by a tendency of the most powerful elements to extend their power to an unhealthy degree. [11] De Tocqueville did not think that America was exempt from this tendency. The problem with centralization of power is that while it makes “great projects” and war possible, it ultimately enervates a society and after a time weakens a government and society. [12]

This leads to one of de Tocqueville’s most famous observations concerning the way in which American and other democracies are most likely to descend into despotism. A powerful and centralized government is inclined to develop minute rules designed to secure equality, but the cumulative impact of which is to destroy freedom and promote tyranny. Such a set of rules,

…covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes and stupefies a people, till the nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd. [13]

I leave it to the reader to draw his or her own conclusions about the current state of affairs with regard to the modern bureaucratic state. There is no question that the rise of large corporations and the complexity of modern economies together with the necessities of the modern welfare state require a larger bureaucracy than could have been foreseen in 1931. The question is one of balance and size as well as the focus and duties of bureaucratic officials.

Slavery as a Specific Threat to American Democracy

De Tocqueville and his traveling companion, Gustave Beaumont, both felt that the institution of slavery was a stain upon American democracy and a danger to the nation. In Democracy in America, de Tocqueville deals only with the main issues, because Beaumont was writing a separate book concerning the horrors of American slavery. [14] In de Tocqueville’s view, the oppression of the black race in America had deprived them of all the privileges of humanity, what our Constitution would call, “Life, Liberty, and the Pursuit of Happiness.” It was the “most formidable” of the social ills not just in America and a threat to the continuation of the nation as a unit. [15] Its impact was detrimental to the slave and to the slave owner, as well as to society as a whole. De Tocqueville also recognized that the discrimination was not limited to the South and to slave owners, but existed in the northern states in a different and more subtle way.

By de Tocqueville’s time, northern slaves had largely been freed, but great numbers had been sold into the south before the liberation. This tactic, characteristic of the northern states was not available to the southern states, which meant that the problem of abolition of slavery was becoming more and more complex and impossible in the south. [16]Furthermore, he anticipated that when and if the slaves were freed, the antagonism between the races would increase. [17]Under these conditions, civil war was a constant threat.

Conclusion

I have indicated that de Tocqueville was not an uncritical analyst of American Democracy despite his great admiration of its achievements. He could see that a decline in morals, a despotic legislature, a burdensome bureaucracy, a degenerate judiciary when combined with the inevitable human desire for power and possessions could destroy what the Americans had built. More specifically, he could see that slavery was both a great moral evil and a social institution difficult to eliminate. He also has a sense of history and knows that, “The history of the world affords no instance of a great nation retaining the form of republican government for a long series of years;….” [18]  In our time was can easily detect the presence of these and other troubling signs. The question is whether our political leaders, unlike the leaders in the lead up to the Civil War can find a just and satisfactory solution to the political, social and economic issues that plague our society. Thus far, they have failed.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), Volume 1, Chapter 11, page 83, hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).  Future citations will be to volume, chapter and page.

[2] Constitutional Rights Foundation, “The Citizen in de Tocqueville’s America” https://www.crf-usa.org/election-central/de-tocqueville-america.html (downloaded November 5, 2021).

[3] Id, at Volume 1, Chapter 13, page 101.

[4] Id, at Volume 1, Chapter 13, page 102.

[5] Id, at 105.

[6] Id, Volume 2, Chapter 4, at 210.

[7] Id, Volume 1, Chapter 6, page 49.

[8] Id, Volume 1, Chapter 6, page 50. The italics is de Tocqueville’s.

[9] Id, Volume 1 Chapter 11, page 87.

[10] See for example, The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 34 (Hamilton). Hamilton spends a good deal of time in his contributions to the need for an indefinite power of taxation in the federal government. I do not think it entered his mind that the federal government would print fiat money or engage in huge, continuing deficit spending.

[11] Id, Volume 2, Chapter 4, at 351.

[12] Id, at 353.

[13] Id, Volume 2, Chapter 5, at 359.

[14] Beaumont, who was also a lawyer, published in 1833 the social commentary and abolitionist novel Marie, or Slavery in the United States, addressing American social customs and attitudes.

[15] Id, at Volume 1, Chapter 16, Page 140.

[16] Id, at Volume 1, Chapter 16, page 145.

[17] Id, at 146.

[18] Id, Volume 1, Chapter 7, page 69.

The Role of Religion in American Democracy: De Tocqueville No. 3

An analysis of the role of religion in American democracy is a prominent feature of both Volume 1 and Volume 2 of Democracy in America. [1] One essential difference between the French and American revolutions is the role religion played in American society as a whole and in American politics compared to the very different role religion played in France. This blog looks at de Tocqueville’s views on the role of religion in American public life in hopes of giving readers a better understanding of the topic as well as its importance for American citizens today living in a very different secular and multi-faith context.

A bit of background is helpful, both for understanding the French and American Revolutions and for understanding the role religion most hopefully plays in America today.

De Tocqueville’s Religion

Much has been made of de Tocqueville’s religious faith or lack thereof, and scholars debate the issue. [2] In Democracy in America, he states that he is a Roman Catholic. We know he was raised as a Catholic and continued for the balance of his life to be positively inclined towards the importance of Christian faith. He was not, however, an uncritical Roman Catholic. He read widely and internalized more than his childhood faith. Many of his intellectual teachers and colleagues would have been antagonistic to religious faith. Others would have been deists, that is they believed in a God, but not the God of the Bible who does miracles, controls history by his providence and will, and hears and answers prayers.

De Tocqueville was obviously impacted by the culture and views of his day. There are scholars who think he was, in fact, a skeptic. I do not agree with this view. The overwhelming number of his comments indicate a respect for religion and a feeling of its importance, going beyond its role as a source of morality. He often speaks of religion at a distance, and I believe this is an intentional attempt to underscore his objectivity about religion and its role in public life. This observation is given force by the way in which he constantly addresses his continental readers, who might have been impacted by the Enlightenment and its hostility towards religion.

Religion in Pre-Revolutionary France

In the ancient regime of pre-revolutionary France, the Roman Catholic Church was an integral part of society. The “Three Estates” of France were the “First Estate made up of the king, royal family, and aristocracy, the “Second Estate” made up of the church and its hierarchy, and finally the “Third Estate” which included the remainder of the French people. [3] The Third Estate was, until the French Revolution, much the least important.

The church that made up the Second Estate was the Roman Catholic Church and its hierarchy. While by the time of the French Revolution there was a form of religious freedom in France, the history was one of persecution of Protestants. Calvin, if one remembers, fled France because of the danger he was in as a result of publishing an early version of what became his Institutes of the Christian Religion. In addition, the Church was seen as aligned with the king and aristocracy and its leaders included individuals hated by the common people.

As the Enlightenment unfolded, the French Enlightenment was, therefore, most opposed to the Roman Catholic Church, though many of its leaders were hostile to Christian faith generally. Rousseau was the least unfavorable towards religion, being at various stages of his life a Roman Catholic, a Reformed Calvinist, and finally a kind of independent mystical Christian. The political leaders of the French Revolution were generally openly hostile to religion, and both Catholicism and Protestantism suffered persecution. This aspect of the French Revolution was a part of Burke’s criticism and was widely seen as playing a role in the way in which it disintegrated into violence and bloodshed.

This is the background de Tocqueville carried with him as he toured the United States, talked to various people, and observed the character of American public life.

Direct influence of Religion on Democracy in America

De Tocqueville observed that, unlike the situation in France before the revolution, religious faith was a direct and important factor contributing to the political stability of the United States and the success of its democracy. [4] Unlike France, in which the primary form of religious faith was Roman Catholicism, with its hierarchy patterned after the examples of the Roman Empire, the colonists of America “brought with them into the new world a form of Christianity which I cannot better describe then by styling it a democratic and republican religion.” [5] In other words, the various protestant sects in America brought with them a kind of democratic Christianity in which much power was given to members and local congregations and many decisions made democratically.

In addition, Roman Catholicism had proven in the New World that it was not necessarily undemocratic in its essence, for it was favorable to the formation and maintenance of American democratic institutions. [6] De Tocqueville gives three basic reasons for this observation:

  1. The Roman Catholic religion recognizes no particular hierarchy in the local congregation, other than the special role the priest plays. Other than the priest, there is equality before God.
  2. In its doctrine, Roman Catholicism places all men in a position of equality before God, whatever their social or economic situation or individual capacities.
  3. Finally, unlike the situation in Europe, the clergy in America never supposed that they were to have any direct political power. The Roman Catholic population was generally poorer than average and not located in states with great political influence, such as Virginia which was Anglican.

Indirect Influence of Religion on American Democracy

In addition to the direct influence of religious faith on the stability of American democracy, de Tocqueville believed that there was an even greater indirect influence of religious faith on political stability. From the beginning of the colonization of America, a number of Christian sects were present which, while differing in details, upheld a basic doctrine of faith and of life, which resulted in a common public morality that undergirded American democratic institutions. Nevertheless, it was a characteristic of early American democracy that while the church and its leaders might speak of political matters from the pulpit, it was unusual for them to participate directly in political affairs. [7] Thus, de Tocqueville observes that:

Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions, for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is the same point of view that the inhabitants of the United States themselves look upon religious belief. …I am certain that they hold it to be indispensable to the maintenance of republican institutions. [8]

De Tocqueville’s analysis bears study and analysis.

First, in some way the religious faith of Americans was foundational to their democracy. Second, that foundational importance was not direct as it had been in pre-Revolutionary France, but indirect as it formed the character and morals of the population in ways that gave stability to its democratic institutions. Unlike France, where the revolution resulted in religious decline, in America the result was robust religion unlike anything that Europe experienced. De Tocqueville believed that the reason for the difference was the way in which religion and politics were separated in America.

The fact that there was no national religion meant that people were free to choose which of the many religious sects in America to which they would belong. This freedom alone meant that love and personal choice were foundational for the religious choices Americans made. [9] This separation meant that people of religious faith were found in all religious factions and their presence acted as a leaven on the tendency of democracy to promote faction. This presence meant that, while religion has less power in American democracy, it had and can have what might be called “trans-factional influence.”

This aspect of American religion continued in effect until relatively recent times. In the beginning, the Social Gospel movement encouraged religious groups to enter into politics. [10] When opposition to abortion became a public issue that evangelical religious leaders became embroiled in partisan politics. During the 1970’s, as America became more secular and religiously diverse, there was a movement for greater involvement of religious leaders in politics both on the religious right and left. Interestingly, these movements coincide with the decline of Christian faith in America. These movements exposed religion in America to what de Tocqueville believed were its two main threats: Schism and Indifference. [11]

Where religion becomes too intertangled in politics, as de Tocqueville believed it had in France, it is inevitably exposed to the impact of partisan participation: the alienation of those who do not agree with those in power. Where religion is established, it can become a “lukewarm” possession of those who are positions of power. This provokes a reaction from those who are in fact devout—a reaction that involves a defense of faith that is both religious and partisan. This encourages further discord of just the kind we have seen in American politics. This, in turn, further discredits religion and results in indifference. [12]

The process de Tocqueville describes is almost exactly what resulted from the religious wars of the Reformation and thereafter. Religious faith became embroiled in partisan politics, which resulted in a both schism and indifference among a vast number of people, including the intellectuals of Europe. In my own view, this process of schism and indifference continues today, with the alienation of intellectuals from religious faith, stemming from the Enlightenment continuing to influence new generations. Interestingly, the “Culture Wars” of the 1970’s seemingly did not promote any revival of faith or morals, but ultimately undermined the “trans-factional influence” of religious bodies of all kinds in American society.

De Tocqueville noticed the tendency of Americans to participate in sects involved in what he believed to be a kind of “Fanatical Spiritualism.” [13] The Reformation, by exalting personal religious choice and the right and ability of everyone to determine their own doctrine and practice in religious matters, opened up the door for a kind of religious fanaticism we noted when reviewing the political thinking of Martin Luther. [14] As a European, this aspect of America must have reminded de Tocqueville of the issues Europe had faced and the resulting violence.

One aspect of contemporary America that is different from 19th Century America is the proliferation of religious views, from well-established historic faiths, such as Buddhism, Hinduism, Islam, Judaism, Taoism, and many others, to secular humanism to almost limitless versions of Christianity. [15] In this context there are bound to be both relatively orthodox groups of various religions and unorthodox members of groups. There are also bound to be groups that others regard as “Fanatical.” This vastly complicates the role of religion in public life as compared to 19th Century America.

Religious Groups and Associations for the Public Interest

In his second volume, de Tocqueville continues his analysis of religion in public life focusing on religious institutions as they impact society and social cohesiveness. As noted last week, de Tocqueville noticed the number and variety of private associations, so called “mediating institutions,” that were formed in America and which acted as both training grounds for democratic character and as restraints on selfishness. To the extent a citizen belongs to a religious association and participates in its activities, to that extent the person is exposed both to the realities of the give and take of public life and the religious and moral training of the society. One characteristic that de Tocqueville noted of American is that while the European clergy of the Middle Ages spoke of nothing but a future state as a justification for moral behavior in the present life, the American clergy constantly referred to the beneficial results of religious faith in the current life. [16]

Democratic Life and Institutions as Secondary

Finally this week, I want to look at what I will call the “transcendental role” of religion in democratic society. De Tocqueville was aware that the twin objectives of freedom and equality could debase the human race. The focus on this life and the improvement of the material life of people could result in materialism, which de Tocqueville referred to as a “dangerous disease” to be dreaded in all societies and most dreaded in democratic societies. [17] He therefore warned leaders against disturbing religious faith in any society.

One might ask, “Why this is so in a fundamental way?” One answer I think is that in any democratic and egalitarian society, government is not a primary good but a secondary one. Freedom implies that government is restricted in some ways in order that people may pursue goods that transcend government’s ability to provide. One of these goods is the good of a transcendent purpose in life.

Individualism in any form is antithetic to any form of enforced rule, which any state of whatever kind embodies. There is an inevitable tendency towards faction and anti-social actions. In a democratic society, religion has a transcendent role in directing attention towards fundamental goods to which human beings need to direct themselves: justice, the common good, fairness, equity, social peace, and the like. Religion focuses attention on answers to fundamental questions of good and evil, the meaning and purpose of life, and  the hope for a future beyond this world. How people answer these questions is important, but for now it is important to see that these are the fundamental questions of life, superseding the question of whether my social group or family obtains certain benefits from government and society. This contributes to social cohesion.

Thus, de Tocqueville urges:

It should therefore be the unceasing object of the legislatures of democracies and of all the virtuous and enlightened men who live there to raise up the souls of their fellow citizens and keep them lifted up towards heaven. It is necessary that all those who feel an interest in democratic societies should unite, and that all should make joint and continued efforts to diffuse love of the infinite, lofty aspirations, and a love of pleasures not of earth. [18]

It is my view that this particular quotation answers the question as to whether de Tocqueville was religious or in favor of merely using religion for moral ends. He is obviously a proponent of religious faith, and in his case Christian faith. However, it is important to remember the phrase “love of the infinite, lofty aspirations, and a love of pleasures not of earth”. This language does not promote any particular religious view and leaves a wide door open for modern pluralism to exist and support democratic institutions. By seeking their own particular transcendent vision, and by impressing their followers with their specific morality, they provide a basis for life upon which democracy can rest.

It is an unfinished promise of American religion whether it can function in the way Christianity functioned in the 21st Century and beyond. To do so, it is necessary that religious groups model restraint, mutual respect, dialogue, and the search for the common good in areas of dispute.

Conclusion

In many ways, de Tocqueville anticipates criticisms of what is often called “the Enlightenment Project” and foresees its failures. He sees that a purely materialistic view of human life is bound to fail, and that those governments which embody a purely materialistic vision, be they Russian Communism or American Secular Corporatism, are bound to fail. The failure is inevitable and is characteristic of left-wing and right-wing solutions to the problem of organizing human society.

Human beings are simply too complex and too gifted with infinite material and transcendent desires for any secular government to have a chance to provide for the satisfaction of this longing. This is why young people are often alienated in our society and why Russian Communism finally failed in a spectacular way. A fuller analysis of this will be given when these blogs reach Marx and Marxist ideologies. For the time being it is sufficient to note that the wisest analyst of 19th Century America saw that democracy needed a transcendent basis, which in his time Christian faith provided.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[2] See, Doris S. Goldstein, “The Religious Beliefs of Alexis de Tocqueville” French Historical Studies Vol. 1, No. 4 (Fall, 1960)

[3] In the blog on Edmund Burke, I outlined the fact that per-Revolutionary France was made up of three estates, each of which were represented within the Estates‐​General, which met infrequently. These three orders were the nobility, the clergy, and all other French citizens, known as the “Third Estate.” Ultimately, the Third Estate became the ultimate legislative body, and responsible for the excesses of the revolution

[4] Democracy in America, Book 1, Chapter 15, at 118.

[5] Id.

[6] Id.

[7] Id, Volume 1, Chapter 15, at 120.

[8] Id.

[9] Id, at 121.

[10] See, Walter Rauschenbusch, Christianizing the Social Order (Waco, Texas: Baylor University Press, 2010). This is the seminal text of the so-called “social gospel movement,” and it will be reviewed in these blogs when we reach the 20th Century.

[11] Id, at 122.

[12] Id, at 123.

[13] Id, Volume 2, Chapter 12, at 240-241.

[14] See, “A Reformer Speaks: Martin Luther on Politics” at  http://www.gchristopherscruggs.com/2020/10/a-reformer-speaks-martin-luther-on-politics/ (October 28, 2020).

[15] For one analysis of the diversity of American Christianity, see The 2020 Census of American Religion (PRRI, July 21, 2021)https://www.prri.org/research/2020-census-of-american-religion/ (downloaded November 3, 2021).

[16] Id, Volume 2, Chapter 9, at 233. I think that this is an early recognition of the deeply pragmatic inclinations of Americans and of American churches, a characteristic which has its good and bad results.

[17] Id, Volume 2, Chapter 13, at 244.

[18] Id, Volume 2, Chapter 13, at 244.

Equality and Democracy: De Tocqueville 2

Alexis de Tocqueville was more than a writer. He was an active participant in the political affairs of France. Over the course of his life, he engaged in French politics and served in the French government. He believed that Europe had entered a new, democratic phase of its history, an historic movement that was irreversible. His interest in America was, therefore, motivated by an interest in what could be learned from the character of American democracy that might aid the development of democratic institutions in France and in the rest of Europe.

As previously indicated, by the time that de Tocqueville wrote his book, the American Revolution was seen as successful, while the French Revolution was seen as a disastrous failure. The Reign of Terror and the rise and fall of Napoleon had plunged France into economic, political and military disaster, and the years following the restoration were troubled. The battle cry of the French Revolution was, “Liberty, Equality and Fraternity.” In the end, what France experienced was dictatorship, continued inequality, and social disintegration. It was natural that de Tocqueville would be interested in the way in which liberty and a sense of equality developed in America. [1]

Freedom and Liberty

The major emphasis of Volume 2 of Democracy in America is an analysis of the requirements of political freedom as they coordinate with human equality. [2] His analysis is important for us, because the relationship between equality and political freedom is no less important today than in the 19th Century. He begins Volume 2 of Democracy in America with this observation:

Everybody has remarked that in our time, and especially in France, this passion for equality is every day gaining ground in the human heart. It has been said a hundred times that our contemporaries are far more ardently and tenaciously attached to equality than to freedom, but as I do not find that causes of the fact have been sufficiently analyzed, a I shall endeavor to point them out. [3]

It is fair to say that the entirety of Volume 2 of Democracy in America is a long commentary on this statement.

The struggle of the French Revolution had been to accomplish two goals: political freedom and enfranchisement and equality for the people of France. In order to understand de Tocqueville’s interest in the problem of equality, it is important to look briefly at the circumstances that gave rise to the French Revolution. Pre-Revolutionary France was characterized by extreme social inequality. The monarchy was absolute and supported by an aristocracy that controlled most of the land and wealth of the nation. This aristocracy controlled the affairs of the nation, but did not pay a proportionate share of the cost of supporting the national ambitions of France. The French Revolution thus set out to create political and social equality, which by the time of de Tocqueville’s death had led to an interest in socialist alternatives, which he opposed.

De Tocqueville begins his analysis of the situation in France and America by noting that it is perfectly possible to have equality without freedom in the political sense of that word. [4] In addition, since the benefits of equality are more readily and easily seen than the benefits of freedom and political liberty, there is always a danger that the drive for equality will end up destroying freedom. Thus, de Tocqueville notes:

I think our democratic communities have a natural taste for freedom; left to themselves they will seek it, cherish it, and view any privation with regret. But for equality their passion is ardent, insatiable, incessant, invincible; they call for equality in freedom, and if they cannot obtain that, they still call for equality in slavery. [5]

In writing these words, de Tocqueville saw himself as issuing a warning of the danger that an emphasis on equality posed to a functional democracy.

Conflict between Freedom and Equality as Social Goals

There is an inherent potential conflict between freedom and equality as social goals. Freedom by its nature allows individuals to pursue their own personal goals, economic, political and otherwise. The results of freedom are not immediately apparent in any area of life. For example, if I am free to begin a business, the results of that business may be a long time in developing. If I am free to begin a new political party, that new political party may be a long time in growing. If I am free to proclaim a religious or moral belief that religion or belief may take a long time to gain a following. If my views are correct, it may take a long time for them to be implemented.

The benefits of equality, on the other hand, are more immediately felt. To the extent the government redistributes wealth and I am a beneficiary, I immediately feel the improvement in my economic situation. If I am a member of a disadvantaged group and the government takes steps to create equality, I immediately feel the improvement in my situation. This leads, de Tocqueville believes, to a preference for equality over freedom that can result in a loss of freedom. Thus, the passions of the people can inadvertently destroy the freedom they have sought through creating democratic institutions.

Conflict between Individualism and Community

De Tocqueville goes on to show that there is also a conflict between Individualism, which is the inevitable result of freedom and a sense of community, which is the ground of any form of true and voluntary equality:

Our fathers were only acquainted with …selfishness. Selfishness is a passionate and exaggerated love of self, which leads a man to connect everything with himself and to prefer himself to everything in the world. Individualism is a mature and calm feeling, which disposes each member of a community to sever himself from the mass of his fellows and to draw apart with this family and friends, so that after he has thus formed a little circle of his own, he willingly leaves society at large to itself.  [6]

In other words, for most people there is a tendency to use freedom, even an unselfish freedom, to create a “personal social space” in which most people prefer to spend their lives. In this personal space, it is easy to forget the political connections that make freedom to have this social space possible. Under these conditions, despotism of one kind or another, was a danger. [7]

How America Overcame the Dangers of Equality and Selfishness

There were several important aspects of American society, which de Tocqueville believed worked to limit the dangers of the kind of descent into despotism that France had experienced. Among the most important were:

  1. Federalism. By the maintenance of many interlocking and interdependent governmental levels from townships and local communities to the states and national government, democratic social life and responsibility were present at all levels of social organization. [8]
  2. Public Associations. Beyond the existence of federal political institutions, more than any other nation, 19thCentury Americans bound themselves together with a variety of private associations, institutions that were and are private, public, economic, social and religious that encourage social bonds, pursuance of common objectives, respect for others, and which maintain and develop public interest. These are what are elsewhere called, “mediating institutions.” [9]
  3. Media. The newspapers of de Tocqueville’s day, like the media of today, allowed persons of common views to “meet daily” and develop common bonds. In addition, the media allowed persons holding views to have these views disseminated and to impact public discourse. [10]
  4. Political Associations. Among the private associations that American form are political associations, not just political parties but associations designed to influence government in a particular course of action or to solve various political issues. These associations give private citizens, who would be individually powerless the ability to influence the course of democratic government.
  5. Religious Associations. As indicated last week, and which will be the subject of the next blog, the absence of an established religion and the resulting cooperation and competition among these institutions is also a democratic mediating institution that gives stability to American democracy and which tends to limit human selfishness and isolation. [11]
  6. Democratic Economic Activity. This element is hard to put into this summary format, but de Tocqueville recognizes that the centralization of wealth in Europe, and the relative poverty of the mass of citizens, worked to divide people and create an aristocracy that enjoyed the privileges of wealth without the necessity to work. In America, however, everyone rich and poor sought the physical well-being that wealth can provide, and interestingly this did not injure the political stability of American democracy. Thus, the search for wealth is not necessarily contrary to creation of a sound democratic social order. [12]

Conclusion

I am going to bring this week’s blog to a close here—though there is great deal more that might be said. Next week, I am going to deal with de Tocqueville’s views on the role of religion in American democracy, indeed on any form of stable polity. This series of blogs began with, and intends to end with, a discussion of religion in public life in our largely secular, multi-cultural society. De Tocqueville’s views will be surprising to some, but they are still relevant today.

This week we focused on an enduring problem for democratic societies: how to balance individual freedom with a measure of social equality. De Tocqueville believed that one danger to American democracy was the way in which a desire for equality can actually damage the human need for freedom and end in a kind of democratic despotism. He also felt that the America of his day had found a way around this danger because of the structure of certain of its social institutions. Many of the institutions he mentions either do not exist today or exist in a much different way than he experienced in early 19th Century America. It is our challenge of find ways to create mediating institutions in our day that can protect our democracy from decay.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] De Tocqueville believed that the French Revolution was ruined by an over-reliance on the abstract revolutionary philosophy of the French Enlightenment and the attempt to arbitrarily alter ling established institutions without practical experience on the part of the revolutionaries. De Tocqueville’s last work was “The Old Regime and the Revolution” in which he analyzed the failures of the French Revolution.

[2] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[3] Id, at Volume 2, Chapter 1, page 201.

[4] Id.

[5] Id, at 204.

[6] Id, at 205.

[7] Id, Book 2, Chapter 4, at 210ff.

[8] Id, at 211-213.

[9] Id, at Book 2, Chapter 5, pp 214-219.

[10] Id, at Book 2, Chapter 6, pp 220-223.

[11] Id, at book 2, Chapter 9, pp 231-233; Chapter 12-13, p .240-246.

[12] Id, Book 2, Chapters 11, pp 237-239.

Democracy in America No. 1

After the Federalist Papers, there is not a more important early document relevant to the American Constitution or American political philosophy than Alexis De Tocqueville’s Democracy in America. [1] The book is all the more remarkable because it was written by a young French lawyer at the very beginning of his career, who demonstrates a remarkable ability to observe, analyze, and explain that would be unusual in a person of twice the age and experience. It is sometimes referred to as the premier work of political philosophy of the 19th Century, especially where democracy is the subject. I will be spending several weeks on this book.

In 1831, a twenty-six-year-old French aristocrat trained as a lawyer, Gustave de Beaumont, De Tocqueville, was asked by the French government to examine the American prison system. With a friend, he traveled throughout the new United States meeting prominent Americans, observing its culture, and researching both his analysis of American prisons and this larger goal of analyzing American democracy to explain its success to his European readers. [2]

His trip took him through New York to Michigan and Wisconsin, into Canada, to Massachusetts and Boston, to Pennsylvania and Philadelphia and Baltimore, then to back to Pennsylvania and Pittsburg and Ohio to Cincinnati, then through Tennessee to Nashville and Memphis, down the Mississippi River to Louisiana and New Orleans then north through the South Eastern United States of Mississippi, Georgia, South Carolina, North Carolina and Virginia to Washington Dc and from their back to New York and home. He returned to France where he wrote Democracy in America, which became a success in Europe and especially in Britain.

The Purpose of Democracy in America

De Tocqueville began his Preface to the 12th edition with words that summarize his intentions, the condition of Europe in his day, and perhaps America in our day (speaking of himself):

His work was written fifteen years ago, with a mind constantly occupied by a single thought—that the advent of democracy as a governing power in the world’s affairs, universal and irresistible, was at hand. Let it be read over again and there will be found on every page a solemn warning that society changes its forms, humanity its conditions, and that new destinies are impending. [3]

De Tocqueville was a believer in democracy and in the historic emergence of democracy during the 18th and 19thcenturies. He felt that Europe was entering a democratic era. His plan was to analyze why the American democratic experiment succeeded while the French Revolution had failed and ended in terror and dictatorship. De Tocqueville wanted to look at the most successful and complete democratic experiment to see why it succeeded in hopes of influencing what he felt would be the future development of democracy in Europe. The book was a success all over Europe, but especially in England and France.

The Importance of the Book

Like De Tocqueville, the blogs of the past almost two years now have a single purpose: To think through a way of preserving the American democratic experiment in another generationOur democracy today faces its most serious threat since the Revolutionary and Civil Wars. The changes in our society and in our government since the Second World War, and the accommodations that were made to face the Great Depression and the threats of Nazism, Communism, and radical terrorism, have both created and disclosed deep problems in our society. These problems need to be wisely and lovingly addressed.

We live in a dramatically different society than that of our founders and the America of the early 19th century. At the time of the founding and through the Civil War, America was an agrarian society. Today we live in a post-industrial culture, having already lived through the dramatic changes of the Industrial Revolution. We cannot just “go back to our Golden Age.”

In order to meet the political and economic challenges caused by the changes of the last three centuries, our government has grown large, with a large bureaucracy that De Tocqueville foresaw and warned against. The Presidency has moved from being the second most important branch with limited powers to being the head of a huge administrative state. The House of Representatives has also developed a huge staff, and the role of money in politics has resulted in a state of constant office-seeking and the need to placate large givers. The Senate has moved from being the representative of sovereign states appointed by them to being a popularly elected body, largely independent of state government. Our national courts have powers that the founders never dreamed that they would have.

American industrialization, and the emergence since the Second World War of a largely service economy driven by technological innovation, is far different from the agrarian society that gave birth to our freedoms. America has moved from being a colonial outpost far from the center of world civilization to being the most powerful nation on the face of the earth. Our economy is nearly a quarter of the world economy and our currency, the dollar, is the world’s reserve currency. The power of American culture is felt throughout the globe.

The emergence of large technologically sophisticated companies that control most of the media both national and local has changed the complexion of American political life dramatically. The materialism and sensualism of our national culture is far different from the culture of the founding generation and the pre-Civil War United States. A new destiny is impending as it always is in human history, but it is no longer certain that the emergence of a new destiny will not be a new Dark Age rather than the democratic age that De Tocqueville envisioned and for which he hoped. The future of America and of Western democracy lies in our hands and will be determined by the decisions we make as a nation and the actions we take.

Fundamental Causes of success of American Democracy

De Tocqueville identified three fundamental causes that he believed importance to the maintenance of American democracy:

  1. The geographic situation of the United States,
  2. The laws by which the United States is governed, and
  3. The manners and customs of the people. [4]

Each of these factors is either no longer clearly applicable, changing decaying, or under attack.

The Peculiar Situation

For a long time, in fact until after the Second World War, the United States was blessed to be far from both Europe and Asia, free of the worry of attack and free from what Washington called the “entangling alliances” of European life. The United States might choose to become involved in a foreign conflict, but was under no geographic necessity to do so. As De Tocqueville put it:

The Americans have no neighbors and consequently they have no great wars, or financial crises, or conquest to dread, they require neither great taxes, nor large armies, nor great generals, and they have nothing to fear from a scourge with is more formidable to republics than all these evils combined, namely military glory. [5]

As a result of the Second World War, the development of nuclear weapons, advances in other military technologies and the development of a truly world economy, none of these benefits to American democracy are still in place. Missiles and planes from adversaries can reach our shores. Our economy is intertwined with the economies of most of the world, including those of our adversaries. We have the largest military establishment in the world, and since the Second World War have been embroiled in numerous military conflicts all over the world from Viet Nam, to Kosovo, to the Middle East. We have high taxes, and are vulnerable to economic dislocations from a number of sources.

The Laws by Which we are Governed

Democracy in America contains a close analysis of the Constitutional structure of our government. He was clear that De Tocqueville was not of the view that the exact structure of American democracy would be wisely implemented in Europe, but he did believe that the kind of laws by which America was governed were important to its democratic success. The America of the 19th Century was decentralized. De Tocqueville considered three legal aspects of American democracy as important to the stability of its democracy:

  1. The federal form of government which provided the security of a small government with the power of a great republic
  2. The local political institutions in towns and cities which limited the potential for abuse of power and trained citizens in the skills of free government.
  3. The way in which the American judicial system, local, state and federal, was empowered to check the impulses of the majority and prevented excesses.

De Tocqueville notes the importance of local townships and “town meetings” in forming a basic democratic impulse and capacity among the American people. [6] In America, before and after the American Revolution, the states were the ultimate sovereign entities, with only a weak attachment first to England then to the New United States. The states themselves were not intrusive governments and many, if not most decisions were made at the local level, a level at which every citizen could participate. Under these conditions the people developed local habits of democratic decision-making, including compromise and decision on basic issues.

After the Revolution, at the time of De Tocqueville’s visit, the states were still very strong and a sense of the limitations on the federal government was strong. In fact, De Tocqueville was not worried about the national government becoming the sole source of power, so much as he was interested in and concerned about the way in which the powers of the states might weaken the union.

In the past century the federal government gained dominance, and the development of huge cities made the use of local institutions to train citizens in democracy more difficult. This is another area in which today’s America looks very different than De Tocqueville’s. Today, few Americans live in small towns. The center of American life are large metropolises that have populations greater than anything imagined by the founders. Both the state and national governments are larger and more intrusive into local matters than was the case in the America of the early 19th Century. These developments present a challenge in allowing people to develop at a local level the kind of skills and social solidarity which De Tocqueville believed was at the root of the success of the American experiment. If his analysis is correct, it will be necessary to create a 21st Century replacement for the town meetings of 18th and 19th Century New England.

One of the principles of a workable democracy that we can draw from a reading of De Tocqueville is an understanding of the organic, relational roots of a functional democracy. In order to accomplish this, our national and state governments will have to encourage the development of the habits of democracy in neighborhoods and other smaller geographic and societal units.

Social Customs Underpinning of Effective Democracy [7]

Anglo-American Culture. De Tocqueville begins his analysis of American democracy by noting social factors that underpinned its effectiveness. The vast majority of immigrants, and the leaders of the nation shared what might be called an “Anglo-American culture.” The leadership of the nation was formed by the centuries of development of English common and constitutional law. There was a shared sense of personal and national destiny in the new world. This sense of shared society and destiny was made more effective by the experience of the colonies in self-government before the American Revolution.

Common Language. The fact that English was spoken from the East to the West and from the North to the South of America was important to De Tocqueville. In Europe the same space was characterized by numerous language groups, French, German, Dutch, English, Italian, Spanish and the Eastern European languages. This common language meant that there was also a common culture inheritance upon which a democracy might be built and have stability.

Common Religious Faith. De Tocqueville appreciated the way in which Christianity provided a unifying moral and spiritual life for the nation. [8] He was interested in the way in which Protestants, Catholics, and others worked together to support the democratic impulses of the people. He was particularly drawn to the way in which the Catholic faith, in which he was a participant, acted as an agent of democracy in America unlike its role in France. He believed that the way in which American society encouraged religious groups to live together under the assurance that no one group would become established, freed faith groups to form the morals and character of people without the danger of being coopted by power. This aspect of his thought is so important that it will require a separate treatment to do justice to the depth and significance of his thinking in this area.

Freedom of the Press. One area in which America was different than in France was the role of the press. In addition, the way in which the press was supported in America (advertising) was very different than the way the press was financed in Europe. In America, the First Amendment enshrines a kind of journalistic free for all with participants free to express opinions, and any opinion, provided the advertising revenue needed to support publication is present. De Tocqueville admitted that he was not an uncritical supporter of the situation and saw its dangers: [9] The press in America was no less inclined towards sensationalism and misstatement than that of France. It was no more accurate in recording the facts. The American press was perfectly capable of enhancing the passions of the masses: however, as De Tocqueville observes it can only enhance, not create passions. [10]

Freedom of the press is, as De Tocqueville notes, a correlative of majority rule: the formation of a majority requires a free press so that many views might be heard, however misguided or misstated they might be. In America, without the history of European control of the press was accustomed to this freedom—and aware of the way in which the need for advertising revenue and readership pushed the press in the direction of sensationalism.

Conclusion

As I look at this blog, I am aware that I have failed to adequately summarize the fullness of De Tocqueville’s argument. Perhaps more than any author I have covered, he needs to be personally read to get the full impact of his reasoning. This is why there are to be two or three more of these blogs on Democracy in America.

At the end of his Preface, De Tocqueville De Tocqueville gives his readers advice that is profoundly applicable to us today:

Let us look to America, not in order to make a servile copy of the institutions that she has established, but to gain a clearer view of the polity that will be the best for us, let us look there less to find examples than instruction; let us borrow from her the principles, rather than the details, of her laws. The laws of the French republic may be and indeed ought to be in many cases different from those which govern the United States, but the principles of order, of the balance of powers, of true liberty, of deep and sincere respect for rights are indispensable to all republics, they ought to be common to all; and it may be said beforehand that wherever they are not found the Republic will soon have ceased to exist. [11]

If I were to speak to the leaders of our own nation today, I would repeat to all them, left and right, of whatever party the same advice: If we want to wisely confront the problems of our nation today, let us look to our past, not in order to make a mere copy of the institutions that our founders established, but to gain a clearer view of the polity that will be the best for us.  Let us look our history to find instruction of basic examples of a wise democratic polity. Let us borrow from her the principles, rather than the details of her laws. The laws of a modern American republic may be and indeed ought to be in many cases different from those which governed us in the late 18th and early 19th Centuries, but the principles of order, of a balance of powers, of true liberty protected by the laws and the courts, of a sincere respect for the rights of our fellow citizens—these are indispensable to all republics, they ought to be common to all; and it may be said beforehand that if they are not found our republic, it will soon cease to exist.

There is a lot more that might be said, which is why it will take several weeks to exhaust the importance of this book for an understanding of our democracy and of the stresses it faces even today. Stay tuned for more.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[2] De Tocqueville did make a report on the American prisons of the early 19th Century.

[3] Democracy in America, Author’s Preface.

[4] Democracy in America, Book 1, Chapter 15, at 113.

[5] Id, at 113-4.

[6] Democracy in America, Book 1, Chapter 4, at 32.

[7] De Tocqueville uses the word customs in a way different from our ordinary use of the term. He uses the term to refer to the mores of a people, of the “habits of the heart” that characterize a particular society. Id, at 117.

[8] De Tocqueville spends a significant amount of his book writing about religion. Rather than try to cover the impact of religion in this blog, I am going to do another blog specifically on this aspect of his work.

[9] Democracy in America, Book 1, Chapter 10, at 78-79.

[10] Id.

[11] Democracy in America, Preface at 5.

Constitution 11: Pre-Civil War Amendments to the Constitution

Prior to the Civil War two amendments were proposed to the Constitution, one to clarify the power of federal courts where litigation against a state is concerned and the other to clarify how presidents would be elected following the contested election of 1800. The paucity of Amendments is a testimony to the sagacity of the founders who wrote the Constitution and the of those who crafted the Bill of Rights. For the first seventy and more years of the nation’s history, the original document was found to be workable, though tensions grew during that period over slavery—tensions that would lead to the Civil War, which we will cover in a few weeks.

Federal Courts and Suits Against States

The Eleventh Amendment to the Constitution provides that:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state. [1]

Article II, Section 2 of the Constitution as originally enacted allowed federal courts to hear disputes “between” a state and citizens of another state, or citizens or subjects of a foreign state. [2] At the time, it was anticipated that this provision could create problems, and indeed it did. Almost immediately after the Constitution was ratified, plaintiffs began relying on this Clause in Article III to sue several states in the Supreme Court.

One of these suits was Chisholm v. Georgia 2 U.S. 419 (1793). [3] In this case, Chisholm, a citizen of South Carolina, sued the State of Georgia over payments due for goods Robert Farquhar had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear in Federal Court, claiming that as a sovereign state, it could not be sued without its consent to the suit. (It might be remembered that one of the reasons for adopting the constitution was to allow for payment of debts incurred in prosecuting the Revolutionary War. This suit was one of many possible suits that might be brought by creditors of the several states as a result of the Revolutionary War and other matters. ) The Supreme Court ruled that Chisholm’s suit against Georgia could proceed in federal court.

There was a dissent in the case, reasoning that under Common Law, that each state is sovereign except as specifically stated in the Constitution or provided for by Congress under one of its enumerated powers. Therefore, in the areas in which the several states are sovereign, they possess the immunity of a sovereign and may not be sued without consent. I quote the dissent because the argument flows from a close reading both of the Constitution and of the history of English Common law that might impact the case. Justice Iredell in his dissent concluded as follows:

I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorize the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. [4]

The dissent became law with the passage of the Eleventh Amendment to the Constitution, which was introduced in Congress almost immediately after the case was decided.

The 11th Amendment has been often construed by the federal courts since its enactment. The amendment is central to the division of power between State and Federal Governments and preventing Federal courts from becoming involved in lawsuits between states and private individuals and foreign governments, thus abrogating the rights reserved to the states under the Constitution. There are large areas in which the Federal Government does not need to be involved, and if it were involved Federal Courts would be swamped with litigants attempting to find a more favorable forum than the state courts of the states with which they have a dispute. Nevertheless. the amendment does not by its express language bar all lawsuits against states or their officials arising in federal courts, though the Supreme Court has upheld a broad immunity on the basis of the amendment.

From a communitarian point of view, the 11th Amendment is a sign of the continuing American interest in a system of dual sovereignty in which various layers of government each undertake their own responsibilities with independence. This independence applies to the states within their reserved rights and to the federal government within the scope of their designated powers.

12th Amendment: Electing a President

The 12th Amendment to the Constitution provides as follows:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States. [5]

Originally, the Constitution provided that the Electoral College would meet and each elector would cast two votes. The person with the largest number votes in excess of a majority became President and the person with the second largest number became Vice President. If no majority elected the President, the House of Representatives would elect the President, who with each state casting one vote. As mentioned before, the Constitutional Convention had assumed, as occurred that George Washington would be elected President, which he unanimously was. John Adams was elected his Vice President. When Washington was elected there were no political parties. In fact, the framers initially desired the President to be the best person for the job, not the leader of a political party, and for a part of this term in office, Adams tried to present himself as above politics. It was a noble, but short lived experiment.

The election of 1800 exposed flaws in the system. [6]  In this election, the vying candidates for the Presidency were John Adams, the sitting President, and Thomas Jefferson, the sitting Vice President. The final years of the Adams Presidency revealed the consequences of the fact that the then-current system of electing a President and Vice President allowed for the situation to develop in which the President and Vice President were not of the same party, and potentially the ascension of the Vice President to the Presidency could undo a considered judgement of the voters as to their choice.

By 1800, the nation had developed the institution of political parties, with Adams representing the Federalist and Jefferson representing the Democrat Republican parties. Roughly speaking, the Federalists had an expansive view of the federal government’s power and Democrat Republican a more restrictive position, at least in theory. (Jefferson proved willing to expand federal powers when the opportunity to purchase the Louisiana Territories presented itself.) By the time of the election, Adams and Jefferson were barely on speaking terms, much less colleagues in governance. Each of Adams and Jefferson had “running mates” in the 19800 election, Charles Pinkney of South Carolina as to Adams and Aaron Burr as to Jefferson.

In the end, the election was sent to the House of Representatives where Jefferson was chosen as President and Burr as Vice President. However, the way in which the election was decided exposed flaws in the system. For one thing, the “One State/One Vote” system in the House of Representatives allowed for smaller states with a small population to have the same vote as larger states. Inside the state delegations, votes had to be taken as to how their vote was to be cast, and in the event of a tie vote, the vote was not to be counted. In the end, one representative’s decision could determine the entire national election.

It was against this background that the 12th Amendment was proposed. Under the Amendment as adopted, electors cast two votes (one of them for a non-native of the elector’s home state). However, under the amendment, one of the votes had to be for a candidate for President while the other for a candidate for Vice President. This amendment, therefore, ensures that the situation of the election of 1800 cannot occur again.

1824 and 1877 Elections

Problems surrounding the election of the President again surfaced in the election of 1824. In this election, Andrew Jackson received the most votes but not a majority. The election was then decided by the Congress, who chose John Quincy Adams as President. It was alleged that a deal was made between Henry Clay and Adams to secure the election for Adams. The bad feelings created, and the wide-spread feelings of fraud and denial of the popular will, resulted in Jackson’s election in the 1828 election.

In 1876, there was another contested election between Rutherford B. Hayes and Samuel Tilden. Tilden won the popular vote and the electoral count. However, supporters of Hayes contested the results in three states in which there were certificates submitted for both candidates. While the Constitution, as indicated above, requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In this case, Congress established a Federal Electoral Commission to investigate the disputed ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award the contested ballots to Hayes—securing the presidency for him by a single electoral vote. [7]

2020 Election

In the case of the 2020 election the need for a proper understanding of the process for electing a president were again revealed. In the case of this election, by the time the votes were counted on January 6, 2021, there were allegations of fraud in the election. One aspect of the contention was the provision of the Twelfth Amendment that provides as follows:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President[8]

At the time of the counting of the 2020 electoral votes, there were several states in which litigation was pending concerning the validity of the vote. President Trump felt that the votes of disputed states should be determined by the Vice President. The legal advisors of the Vice President disagreed, feeling that the Vice President, as the President of the Senate, had only ministerial responsibility to declare the vote of each state. In this case, it is likely that the legal advisors of the Vice President were correct, The wording of the Constitution does not appear to give any power to the Vice President to make legal determinations. Moreover, at the time the Constitution was enacted, the States would have resisted any such claim as an imposition on their powers to determine their own electors.

In my view, the 2020 Election revealed the need for a set process to resolve contested election suits. Given the complexity of the cases, there is simply not enough time between an election day and the day Congress counts the votes for a normal judicial process to take place. Some group needs to be authorized to hear relevant evidence and make determinations of fact related to elections in a timely way where there are credible allegations of fraud sufficient to have tipped the election one way or another.

Conclusion

This week, I decided to deal with the two amendments to the Constitution enacted after the Bill of Rights and before the important amendments that resulted from the Civil War. It is a welcome relief from the speculations of Kant and Hegel, as important as they are. There was and is something comforting about a return to the law and Constitution from the speculations of philosophers!

Copyright, 2021, G. Christopher Scruggs, All Rights Reserved

[1] Constitution of the United States of America, Amendment 11.

[2] Constitution of the United States of America, Article III, Section 2.

[3] Several other suits against other states were pending at the time Chisholm was decided in 1793, including Vassall v. Massachusetts, in which a British subject (William Vassall) sued Massachusetts for violating the Treaty of Peace by confiscating his property.

[4] Chisholm v. Georgia 2 U.S. 419 (1793), Justice Iredell dissenting.

[5] Constitution of the United States of America, Amendment 12.

[6] I am indebted to the work of the Interactive Constitution at https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171 (Accessed October 7, 2021) for much of the analysis of this blog.

[7] “The Electoral College and Indecisive Elections” History, Art and Archives, nited States House of Representatives, at  https://history.house.gov/Institution/Origins-Development/Electoral-College/ (downloaded October 11, 2021).

[8] Constitution of the United States of America, Amendment 12. This provision superseded the original provisions of Artice II, Section 1 of the Constitution.

Hegel, Dialectic and Process/Evolutionary Thinking

 

Georg Wilhelm Friedrich Hegel was born on August 27 1770 of a middle-class German family and died November 14, 1831. During his lifetime, he became the most important German philosopher, and his work was influential on many thinkers, both continental and American. He is particularly remembered because of his influence on Karl Marx, who dispensed with Hegel’s idealism for a thorough-going materialist vision of history and the state. Hegel’s thought was also important for a generation of theologians who studied and profited from this thinking. He has fallen out of favor in more recent decades but during his own lifetime he was the preeminent German philosopher at a time when Germany ruled the philosophic world.

Hegel did not demonstrate in his youth the genius of his adulthood. He was a methodical as opposed to brilliant student, developing a life time habit of copying out quotes from great works and then filing them where they could be recovered. He had a deep interest in mysticism and in classical Greco-Roman culture, both of which influenced his philosophy. Hegel initially studied theology, a discipline for which he was not well-quipped because he was not a good public speaker and unlikely to be able to hold the attention and affection of a local congregation. His certificate of graduation from Tubingen described him as competent in philology and theology but lacking in the area of philosophy.

He began work as a private teacher and lecturer, gradually preparing his first work, like Kant, on logic (1812-1816). Throughout, he worked on his first great work, Phenomenology of the Spirit, and he prepared an Encyclopedia of the Philosophic Sciences (1817) which earned him a professorship and the University of Berlin, where he spent the remainder of this life. His two works, On Law and On History, both compilations of his lecture notes in Berlin, are primary sources for his political philosophy.

Hegel’s language and thought are notoriously difficult to understand. Schopenhauer described his work and the work of his disciples as “a stringing together of senseless and extravagant mazes words, such as had previously been known only in madhouses” and “barefaced mystification.” [1] Anyone who ever took a course in philosophy where reading Hegel was required can testify that there are times when these words ring true. Nevertheless, Hegel made important contributions in logic, metaphysics, and political philosophy and the philosophy of history.

Dialectical Thinking

Most students and many others have some familiarity with Hegel because of the prominence with which he placed dialectic in his Logic and the place it plays in his other works and in Marx. The basic notion is fairly simple: Human beings are inclined to compare and contrast things. The result is that human reason proceeds in a dialectical logic that unfolds something like this:

  1. A thesis (or truth claim) emerges;
  2. The thesis evokes anti-thesis; and
  3. A synthesis is developed.

Any synthesis then becomes a  new thesis, and the process begins again.

There is a similarity in this progression to the process of reasoning developed by C. S. Peirce and Josiah Royce.  Peirce had the insight that all communication involves a communicator, a sign by which the message is transmitted, and a recipient, who interprets its meaning. Royce adapted Peirce’s insight and developed the notion that all communication involves the person who is communicating, signs by which the communication is made, and an interpreter who interprets the meaning. What is important in this for the purposes of political philosophy is the obvious fact that this kind of reasoning is a process by which human beings analyze the world and discover meaning and truth. The process of the logical progression of ideas is a feature with profound implications for politics and the idea of human progress.

What is not always understood (and indeed may not have been fully understood by Hegel, Marx or their interpreters) is that reasoning and historical process does not and cannot have an end inside of human history. Remember that Hegel holds that every thesis results in an anti-thesis that is resolved into a synthesis, which then results in a new thesis. This process must and will continue until the end of time because it is an inherent feature of human existence. Human beings never rest satisfied with any condition of knowledge or society. There are, and will always be, signs, communicators, and interpreters, and because the signs are able to acquire new uses and meanings, those signs will never be final.

I mention this at the beginning because both Hegel and Marx posit a supreme achievement of politics—for Hegel the German state (with a qualification I will mention later) and for Marx the dictatorship of the Proletariat. In both cases, the attempt to bring history to a conclusion is wrong-headed for the reasons set out above, as are similar attempts in our own day. The process of human becoming, the analysis of defects in the current social system, the need to make adjustments to accommodate new situations are inevitable features of human life. There can be no “End of History” within history, for people, societies, and their history will always change.

This is an important point to get clear right at the beginning: We cannot escape or “end” history. Human beings cannot bring about a final end to politics, the struggle for power, or the accommodation of the present to the emerging future. All such attempts have ended and will always end in a dictatorship as those in power desperately seek to forestall the emergence of challenge to their rule. For freedom to exist and be maintained, there has to be an understanding of the inevitability of criticism of the status quo, whatever that status quo may be.

A good example of the impossibility of an end to history involves the recent fall of the Soviet Empire, which prompted an article entitled “The End of History.” History, however, did not end, for the Western democracies were faced first with radical Islam and then with the deterioration of their own societies and the reemergence of Marxism as a force. [2] In a recent article, the New York Times made the following observation about Hegel and his influence on the original article:

Hegel, Fukuyama said, had written of a moment when a perfectly rational form of society and the state would become victorious. Now, with Communism vanquished and the major powers converging on a single political and economic model, Hegel’s prediction had finally been fulfilled. There would be a “Common Marketization” of international relations and the world would achieve homeostasis. [3]

It has turned out that capitalism has continued to evolve in most Western nations into something lire like “Oligarchical Privatism” with a consequent loss of faith in its viability among the young, who have increasingly turned to socialism as an alternative. In some ways, the West has been imitating the State Controlled Capitalist model that has evolved in Russia and China since the fall of Communism. History did not end as Fukuyama predicted—nor will it end if the current batch of neo-Marxists win power.

Wholistic-Relational Aspect of Hegel’s Philosophy

Near the beginning of his work, On Right, Hegel observes that “…legislation both in its general and its particular provisions is treated not as something isolated and abstract, but rather as a subordinate moment in a whole, interconnected with all other features which make up the character of a nation or epoch. [4] Against the reductionism of scientific empiricism, Hegel is advancing the claim that a law (or any other feature of a political system) is not to be understood alone in its particularity but in its relationship to all the features of the society in which said law or feature emerges.

This is a distinct feature in Hegel’s reasoning that nothing can be understood except in all of its connections, historical, logical, philosophical, governmental, scientific, etc. In the end, Hegel’s logic leads to his view that nothing can be fully understood except in view of the Absolute, or reality as a whole. [5] It might be noted, that this underscores the view stated above that political evolution is without an end within the boundaries of human history because there will not be a point in which any nation, society, political system, etc. will be known in its absolute connection with everything else that influences the system. [6]

This aspect of Hegel’s thought in some ways anticipates the “Quantum Revolution” of the 20th Century, with its emphasis on wholeness and systems and implicit limitations on the reductionist science of the modern world, which by implication casts doubt upon the reductionist political science and materialistic politics of the 19th and 20th Century. This, as we shall eventually see, casts doubt on Marxism, Laisse Faire Capitalism, and the kind of “State Controlled Oligopolism” we see emerging at the current moment of history. The emergence of a relational. Holistic way of thinking involves a new way of thinking in which the old dualisms and distinctions of modern thinking are replaced by a new way of thinking, which in turn will inevitably result in an end to the older, modern materialistic and power-oriented way of conceiving political life.

History as a Rational Process

As might be expected from a proponent of dialectical reasoning and a professor of logic, Hegel believes that beneath the wars, conflicts, revolutions, and innumerable events that make up human history, there is a logic, a reason, a process unfolding as reason, which is the ultimate substance of the universe unfolds within reality. This unfolding of history is the unfolding of the activity of free spirit as it is revealed in the dialectical process of history. [7] This unfolding of reason in history is not a material process; it is however embodied in the material processes, the historical forces of history and cannot be separated from them. Thus, Hegel posits:

The loftier dialectic of the concept consists not in simply producing the deterministic as a contrary and a restriction but in producing and seizing upon the positive content and outcome of the determination, because it is this that makes it solely a development of an immanent progress. Moreover, this dialectic is not an active, subjective thinking applied to some matter externally but is rather the matter’s very soul putting forth its branches and fruit organically. This development of the Idea is the proper activity of its rationality and thinking….” [8]

This way of thinking is modified and adapted by Marx who fully embraces the materialistic side of Hegel’s thought.

Freedom as the Ultimate Ground of Political Thinking

The idea of freedom sits at the basis of Hegel’s political philosophy. Hegel is a natural law thinker, and the basis of this notion of natural law is the idea of personal freedom or the freedom of the human will. In this, Hegel follows both Kant and Rousseau as a philosopher of freedom. [9] Like these other two philosophers, the freedom is the freedom of the isolated individual over and against all social structures and other intellectual constraints. Like Kant and Rousseau the actual political implications have been the reverse of what Hegel intended.

In my opinion the reason for this is that freedom is not fundamental but flows from love which is fundamental to human societies. It is love that gives the other, the one who disagrees with our opinions or questions the status quo the freedom to be what they are. A monadic or individualized basis for freedom always fails, as indeed it is failing in our own day as a multitude of individual ego’s seek power and actualized freedom. Only a communitarian basis for freedom founded on a kind of self-giving love that allows the other freedom (which is a Christian concept) can form the basis for a lasting freedom and end the power-oriented striving of the modern world, allowing a positive post-modern era to emerge. [10]

Conclusion

Hegel is a complex but fruitful thinker. As mentioned earlier, he viewed the German State of his day as the highest development of the state to his time. However, interestingly, his view was that the future belonged to America, thus foreseeing the role that America would play in the late 19th and 20th Centuries. If he were alive today, he might see the forces of history bringing China to the forefront of history. This is the ground of my observation that Hegel himself may not have seen history as having the kind of end that his interpreters see in his work. In any case, it is hard not to see in Hegel’s logic the reality that history can never come to an end within the history of human existence, for human society will always change and evolve.

We will return to Hegel both in looking at Marx and at Alfred North Whitehead, whose work extends Hegel’s influence into the evolving post-modern era.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Quoted in Will Durant, The Story of Philosophy (New York, Simon and Schuster, 1951), 221.

[2] Francis Fukuyama originally wrote a book entitled “The End of History,” which he has recently rewritten as

3 Louis Menard, “Francis Fukuyama Postpones the End of History” New York Times, September 3, 2018 https://www.newyorker.com/magazine/2018/09/03/francis-fukuyama-postpones-the-end-of-history (downloaded October 4, 2021). This is a review of Fukuyama’s revision of his thesis in his book, The End of History and the Last Man” (London, England: Routledge, 2010). His original article was roundly criticized for some of the same reasons I have given.

[4] G.F.W, Hegel, “On Right” in “Hegel” Britannia Great Books, Vol. 46: Chicago, IL: Britannia Great Books, 1987), 10. Hereinafter, all citations are to this volume unless otherwise noted.

[5] See, Bertrand Russell, History of Philosophy (New York, NY: Simon and Shuster, 1945), 723.

[6] I do not have the time or space within this blog to examine all the implications of this observation. When we return to C. S. Peirce and Josiah Royce we will examine the importance of this within the context of their evolutionary pragmatisms. Royce talks about an “Absolute Pragmatism,” by which I think he means a pragmaticism driven by the hope of that hypothetical moment in which all members of a community of inquiry reach agreement about a point of truth. Royce was a student of Hegel.

[7] Russell, previously cited at 736.

[8] Hegel, “On Right” at 19.

[9] Hegel, “On Right” at 19. “It is only because right is the embodiment of the absolute concept or of self-consciousness freedom that it is something sacrosanct.

[10] See, John Zizioulas, Being as Communion (New York, NY: St. Vladimir’s Press, 1985), 47. To understand Zizioulas’ argument requires a careful reading of the entire first section of his book.

Kant 2: The “Zenith of the Enlightenment”

In the interest of space last week, I did not include biographical information about Immanuel Kant (1724–1804) as I normally do. This week, I want to remedy that defect. Kant was born in Konigsberg, which is a part of Prussia in 1724. He lived his entire life within a small geographical area around the city. His family had immigrated from Scotland about a century earlier and was poor. His mother was a devout Pietist, and while Kant was not devout nor a churchman, the impact of his mother’s faith and her strict morality formed the young Kant and impacted his life and philosophy in profound ways. Though a product of the Enlightenment, his deepest motivation seems to have been to provide a ground in human reason for the fundamental values of his childhood and adopted nation.

In 1755, in his mid-twenties, Kant began his professional life as a lecturer at the University of Konigsberg. His professional progress was not impressive. In 1770, after being denied positions at least twice, he was made a professor of Logic and Metaphysics. During his career, he also engaged in the kind of scientific pursuits common among intelligent laypersons of his day. His philosophy is impacted by his commitment to Newtonian physics and his own scientific inquiries.

Kant was physically small and unimpressive. On the other hand, he seems to have been gregarious and social as much as his situation in life allowed. His life, however, was quiet. He took walks in the country. He was careful about his health. He lived frugally and within his very limited means. He and worked on his Critique of Pure Reason, the work that made him famous, quietly and obscurely for many years, before finishing it and embarking on the philosophical career for which he is justly famous.

In the years before his death, Kant suffered from growing dementia that ultimately left him helpless and from which he died. This later political philosophy was impacted by this decline and he was unable to finish  all the work he contemplated because of the aging process.

The French Revolution

When the French Revolution (1789-1799) began, Kant was a tenured Professor at the University of Konigsberg nearing the end of his career. He had already published his “The Natural Principles of the Political Order considered in the Light of a Universal Cosmopolitan History” with which we ended last week’s blog. [1] He was deeply influenced by Rousseau, whose work he admired greatly, and embraced the revolution with an ardor rare for a man of his age. If Newton and Hume were the inspiration for his metaphysics, Rousseau was the inspiration for his political thought. To understand Kant, however, it must be remembered that Rousseau is misunderstood as a purely revolutionary figure. Instead, it is best to see him as one determined to restore the kind of thinking prevalent in the Classical Age, which he admired and to defend culture against the worst elements of modern thinking. I think it best to see Kant as this kind of figure as well, though in common with Rousseau, he initially supported the French Revolution and saw in it a hope to transform Europe along more democratic lines. Nevertheless, when Louis XVI was executed, he decried the event as worse than just a murder. Kant as supported the French Revolution in the name of freedom, but not supporting either its methods or all of its results. As to his native Germany, he continued to support the Kaiser and the fundamental form of Prussian government.

The French Revolution marked the end of one period of Kant’s life and the beginning of its last period. In this period, politics and law were to dominate his thought. As Hannah Arendt puts it:

From then on his interest no longer turned exclusively about the particular, about history, about human sociability. In its center was rather what we today would call constitutional law-the way a body politic should be organized and constituted, the concept of “republican,” i.e., con­stitutional government, the question of international relations, etc. [2]

Kant never finished a writing a definitive political philosophy, but the desire to write one and to contribute to the emerging new era in human history, what we call, “the Modern World” drove him in his final years before age and incapacity silenced his voice.

Freedom as the Basis of Society

Kant bases this thinking on politics on the idea of freedom, which is basic to his political philosophy. In this work, Introduction to the Science of Right, he says:

Freedom is independence of the compulsory will of another; and in so far as it can coexist with the freedom of all according to a universal law, it is the one sole original inborn right belonging to every man in virtue of his humanity. [3]

At the time Kant wrote, this “inborn right” had only been recently discovered. In the history of the world and the history of Europe this right had not been celebrated nor even acknowledged prior to the Enlightenment, perhaps because there is not so much an “inborn right” as the emergence in history of the potential for such a right. Second, Kant’s “freedom” is a disembodied freedom of a kind that does not and cannot exist within human history. Human beings are born into physical bodies with strengths and limits, into families which impart further strengths and limits, and into myriad social structures which from the beginning limit and guide choices that can be made. One consistent failure of Enlightenment thinking is a frequent kind of disembodied abstractness of its theories, divorced from the realities of human existence. The Enlightenment notion of freedom, like its notion of a primaeval Social Compact is an intellectual fiction. Where one finds limites inKant’s thinking, those defects largely arise out of a kind of logical disconnect between human reality and the theories that Kant and others in the Enlightenment championed.

Kant as a Natural Law Thinker

Kant divides the rights of human beings into two categories: Natural Rights and Civil Rights. The term “Civil Rights” is roughly identical to what we would call “Positive Rights,” that is rights granted by the society in which the person his located. [4] Unlike positive law, natural law is a law of reason. For Kant, the natural law is deeply connected to his moral theory and the Categorical Imperative. In his Groundwork for the Metaphysics of Morals, Kant specifies the imperative as follows:

Act only in accordance with that maxim through which you can at the same time will that it would become a universal law. [5]

Applied to politics, the Categorical Imperative implies that, human beings should act in such a way that as treat humanity, directly or indirectly, never simply as a means, but always at the same time as an end.” [6] In this definition, Kant is following Augustine, whose morality is founded on the ultimate worth of each human individual, who must be treated not as a means but as an end. Positive laws, then, to be properly enacted must conform to the principles of natural law, that is the principle of respect for each human being as an end in his or her self. Discriminatory laws would be a primary example of laws that cannot be properly enacted because it treats people has means not ends. Slavery would be the most dramatic example, because it treats some people (the free) as ends and others (the slave) as ends.

Kant’s Progressivism

As earlier mentioned, Kant, as the prototypical Enlightenment thinker, has a notion of infinite human progress, and of history as moving human society towards a predefined goal, what he identified as “the perfect cosmopolitan community.” The freedom of human beings as moral creatures and the inevitable forces of nature, including human nature, work together to drive the human race forward into a better future. In fact, Kant saw himself and his social philosophy as a part of that progress. This is a theme that Hegel and Marx will develop, and in the case of Marx on a purely material basis.

Kant’s view of progressive history finds its mechanism in his famous thesis of ‘unsocial sociability’:

The means which nature employs to bring about the development of innate capacities is that of antagonism within society, in so far as this antagonism becomes in the long run the cause of a law-governed social order. By antagonism, I mean in this context the unsocial sociability of men, that is, their tendency to come together in society, coupled, however, with a continual resistance which constantly threatens to break this society up. This propensity is obviously rooted in human nature. Man has an inclination to live in society, since he feels in this state more like a man, that is, he feels able to develop his natural capacities. But he also has a great tendency to live as an individual, to isolate himself, since he encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas. [7]

Human beings have both a social nature, which drives them to human society and a natural self-centered, selfish interest. It is the interaction of these two propensities, “the unsocial sociability of human beings” that drives humanity forward in the progress of human society.

The idea that human beings are in a state of perpetual progress has fallen from favor in recent years. Two world wars, the development of nuclear weapons, the destructive impact of industrialism on the environment, and other factors, have caused thinking people to move away from an idea of the historic inevitability of progress. From the point of view of American politics, both liberal and conservative American politicians invoke the idea of “being on the right side of history,” which is the side on which the speaker finds his or herself. This notion of progressivism in history is rightly critiqued for its implicit assumption that prior periods of history are valuable only for producing the present—and the present exists and is valuable only for its contribution to the future, which underlies the justification of the violence of Marxist totalitarianism.

Constitutionalism

One of the focuses of Kant’s later years might be termed an interest in the formation of constitutions consistent with the promise of human freedom and his notion of a “cosmopolitan community” in which the human race might achieve a just and lasting peace. His thought, naturally, was important in the formation of the League of Nations after the First World War and the United Nations after the Second World War.  In more recent years, his influence is apparent in the European Union.

Human beings naturally seek peace and security in a civil constitution founded upon law. [8] Such civil constitutions are to be judged by the degree of freedom that they allow and maintain and the degree to which they conform to natural law. Kant did not necessarily conceive of a modern democratic state as the only form a constitutional government might take, and so supported the German monarchy of his own day as one of the potential forms a constitutional government might take. He was, however, aware of the emerging American constitution and a supporter of its values.

Conclusion

We will now pass from Kant to Hegel and then back to America to look at Tocqueville’s writings about America. We will return to Kant a bit later, for he is not without impact on American pragmatism, especially in the form of Josiah Royce’s notion of the Beloved Community, which is a descendent of Kant’s Cosmopolitan ideal. We will also return to Kant when we return to political theology, for his reduction of religion to morality impacted generations of continental and American religious thinkers in important ways.

In the blogs to follow, I may be a bit more critical than I have tried to be to date, for we are now at the point where the thoughts of those we will be examining, like Kant, Hegel and Marx continue to have impact on society and on thinking and whose errors continue to impact decision making. As mentioned in this blog, much of the political language labeling opponents positions as “against the flow or goal of history,” which is both harmful and without content, stems from the notion that progress is inevitable and that history has an inevitably progressive direction.

History is made of the choices leaders and societies make, and the human race has experience long periods of destruction, stagnation and decline as bad decisions have been made by conquerors, emperors, dictators, visionaries and the like. The goal of studying history and the history of ideas is not to “enter a flow of predetermined progress” but instead to learn lessons that can avoid bad decisions and make good ones, something our politicians right and left need to learn.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See Immanuel Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History” https://en.wikisource.org/wiki/Idea_of_a_Universal_History_on_a_Cosmopolitical_Plan (Downloaded September 21, 2021).

[2] Hannah Arendt, Lectures on Kant’s Political Philosophy Ronald Beiner, ed (Chicago, IL University of Chicago Press, 1992), 16.

[3] Immanuel Kant, “Introduction to the Science of Right” in “Kant” Britannia Great Books, Vol. 42: Chicago, IL: Britannia Great Books, 1987), 397. Hereinafter, all citations are to this volume unless otherwise noted.

[4] Id, at 402.

[5] Kant, Groundwork, at 37.

[6] Kant, Groundwork, at 45-51.

[7] Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History,” Previously cited, Proposition the Fourth. I have italicized the phrase “unsocial sociability of men” for emphasis.

[8] Id, at Proposition the Seventh.

Kant’s Political Thought

As mentioned in the last blog, David Hume created a critical empirical philosophy that was ultimately skeptical in its conclusions. If you remember, David Hume took the position that all we really “know” are successive sense impressions. Taken literally, this undermined in Hume’s eyes the reality of the human person, the reality universal concepts, causality, and other ideas central to modern science.

Immanuel Kant (1724–1804) credits reading Hume with “awakening him from his dogmatic slumbers”, leading to the creation of the most important work of continental philosophy of the late 18th century. Kant’s thinking continued to influence philosophy through the 19th and 20th centuries and until today. After reading Hume, Kant set out to reestablish a ground for human knowledge, religion, science and morals in light of Hume’s critique.

Kant’s Structure for Philosophy

Kant adopts the Greek division of philosophy (the love of wisdom) into three categories:

  • Physics (natural philosophy),
  • Ethics (the study of what humans make of their freedom) and
  • Logic (the study of formal logical systems, such as mathematics and formal logic).

Logic has no empirical component and so can arrive at analytical a priori certainty, but both natural philosophy and ethics have empirical components and so operate differently. [1]

One writer describes Kant’s position as follows:

Like Locke and Hume, Kant thinks we must realize that the boundaries of human knowledge stop at experience, and thus that we must be extraordinarily circumspect concerning any claim made about what reality is like independent of all human experience. But, like Descartes and Leibniz, Kant thinks that central parts of human knowledge nevertheless exhibit characteristics of necessity and universality, and that, contrary to Hume’s skeptical arguments, we can have good reason to think that they do. [2]

Kant’s Categories of Knowledge

Kant’s first philosophical move was to agree with Hume that all of real, positive knowledge of reality flows from experience. Kant’s second move, however, was to establish his position that reason forms this knowledge according to certain a priori categories, such as time, space and causality. These categories are not aspects of reality but aspects of the way in which human beings organize human knowledge. For example, the language of pure mathematics is analytically prior to all experience. Time, space, and causality, they are synthetic (or empirical) a priori categories of human thinking.

Before going forward, I want to look more deeply into Kant’s notion that time, space and causation are facets of the human mind, a priori ways in which experience is structured. Interestingly, this analysis will help understand his political philosophy and its weaknesses. Quantum physics and relativity theory cast doubt upon Kant’s  ideas as regards time, space, and causality. Time and space are not eternal ideas in the mind of God or human mind, they are relative features of the universe dependent upon one another for their determination. In the case of causality, one of the features of quantum physics is the breakdown of the Newtonian, common sense, everyday notion of causality in the subatomic realm. Our ideas of time, space, and causality, as important as they are, are relative features of the physical universe that we have uncovered to make sense of a variety of human experiences. They do not appear to be inevitable features of the human organization of experience. [3]

Kant also operates within the boundaries set by Descartes division between subject and object, the universe and the human knower. Quantum physics does not favor this approach, since it is a feature of quantum physics that the observer cannot be totally removed from his or her observations, in fact the observer determines to some degree the outcome of their observations. Quantum physics and Relativity theory would seem to favor a view of the human mind (observer) as part of the observed (the universe).

These observations lead to quite different conclusions from the stark division of Kant between what is a priori in the human mind and synthetic aspects of human experience. The human mind is part of the reality it is observing, and structures its thought around aspects of reality that have emerged in human history as important to understand the reality of which the human actor is both an observer and a part of the unfolding reality itself. This participation of the observer in what is observed is a feature of all human experience, including moral and religious reasoning.

Kant’s Ethics

As to ethics, Kant also believed that we have moral knowledge independent of experience, that is a priori. This was not analytic a priori, such as mathematics, but synthetic a priori. His categorical imperative is one such a priori kind of knowledge. For Kant, the fundamental moral principle, the categorical imperative requires human beings to act as if the action that they are contemplating could be universalized. In his Groundwork for the Metaphysics of Morals, Kant specifies the imperative as follows:

Act only in accordance with that maxim through which you can at the same time will that it would become a universal law. [4]

It goes without saying that Kant might be in error concerning just how, a priori this statement might be. It is found in the form of the Golden Rule in Christian faith and in other religions as well. It seems to be a part of that moral wisdom that human beings have intuited based upon the lives of generations of human beings, not an a priori aspect of the human mind. It is more as likely that this principle is not a synthetic a priori, a creature of the human mind, but a principle, like E=MC2, that human beings have abstracted from human experience and regularities humans have noted in observing the inverse. In other words, morals are not solely internal to the human subject but features human beings have abstracted from a moral and ethical reality they experience and of which they are inevitably a part. In other words, the foundation of moral reasoning is not a priori rules, but rules of behavior which synthesize historic human experience as found in many traditions.

Foundations of Kant’s Political Philosophy

Freedom and Determinism. For Kant, political philosophy is a part of moral philosophy, which means that it operates with both an a priori and empirical (synthetic) component. This implies that Kant’s political philosophy is conditioned and directed by the early Enlightenment division between mind and matter and the radical schism between subject and object. As we shall see, this division impacts Kant’s political philosophy in fundamental ways.

For Kant, science is the realm of the determined while morals and politics are realms of human freedom. As material creatures, human beings seek their own best interests in a kind of constant economic and political warfare, but as moral beings, human beings seek to fulfill the demands of the moral law—to act according to universal moral principles intuited not from experience but from innate features of human thinking. These two forces (deterministic struggle and moral freedom) operate in tandem in human history, driving human history and the evolution of human societies. Interestingly, Kant does not see these two forces as necessarily opposed to one another. The forces are driving the human race towards peace, harmony and a better world. [5]

At this point, I return to the observation made earlier that Kant’s acceptance of a division between mind and matter leads him to divide the a priori and the synthetic and a similar division between determined economic forces and human freedom. It is more likely that there is an interplay between the moral, physical and other forces in human history than some kind of tandem coordinated operation. This is more in line with the thinking of C.S. Pierce than with the ideas of Kant.

In my view just as the quantum level of physical reality is characterized by freedom as well as the operation of scientific laws, so also in the realm of politics all decisions and all forms represent the free acts of human beings within the limitations of the laws of the physical universe, choices that may lead for good or evil. In other words, there is no universal movement towards a better future separate from human choices that create such a world.

The Unfolding of Universal History. In 1784, Kant published a work entitled, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History”. [6] This essay is important as it sets out a line of thinking that eventually emerges as a materialistic idea of the unfolding of history found in Marx. Kant theorizes that the forces of human history seen as the actions of the human will unfold in a deterministic pattern. Kant sets out his thesis as follows:

Considering that men, taken collectively as a body, do not proceed, like brute animals, under the law of an instinct, nor yet again, like rational cosmopolites, under the law of a preconcerted plan, one might imagine that no systematic history of their actions (such, for instance, as the history of bees or beavers) could be possible. At the sight of the actions of man displayed on the great stage of the world, it is impossible to escape a certain degree of disgust: with all the occasional indications of wisdom scattered here and there, we cannot but perceive the whole sum of these actions to be a web of folly, childish vanity, and often even of the idlest wickedness and spirit of destruction. Hence, at last, one is puzzled to know what judgment to form of our species, so conceited of its high advantages. In such a perplexity there is no resource for the philosopher but this,—that, finding it impossible to presume in the human race any rational purpose of its own, he must endeavour to detect some natural purpose in such a senseless current of human actions; by means of which a history of creatures that pursue no plan of their own may yet admit a systematic form as the history of creatures that are blindly pursuing a plan of nature. [7]

Kant unpacks his thesis noting that while human actions are free, these actions are guided by “nature” to a predetermined social end, the formation of a “universal civil society of all human beings founded on the idea of political justice.” In this line of thinking, Kant, whether consciously or unconsciously, laid the foundation for the kind of Marxist Millennialism that was found so destructive in the 20th Centuries, and which evolved not into a “universal civil society of all human beings founded on the idea of political justice,” but into a kind of intolerable dictatorships that in its current forms look much like Nazism—a union of wealth and government in all-encompassing, dictatorial oligarchy.

Conclusion

Originally, I had intended to spend only one week on Kant and move to Hegel before returning to the American Constitution, but Kant is too complex and rich for such a plan. Next week, I will return to Kant as an interpreter and admirer of Rousseau, and look at the way in which the Romantic ideas of Rousseau influenced his political philosophy. For this week, I want to leave readers with the understanding that, at just the time that America was formed, the Enlightenment was entering a new period—a period that would produce Darwin, Marx, and others, whose thought is not sympathetic to the American constitutional project or free human societies.  Perhaps more fundamentally, cracks were forming in the optimistic, progress expecting, human centered foundations of the Enlightenment project, cracks that continue to grow. By the early to mid-20th Century, the foundations of the Enlightenment had completely eroded and human history was entering the period in which we know live, often referred to as “post-modernity.”

[1] Kant begins his Groundwork for the Metaphysics of Morals by explicating this division and its fundamental importance. Immanuel Kant, Groundwork for the Metaphysics of Morals tr. Allen W. Wood (New Haven: Yale University Press, 2002), 3-4.

[2] “Kant on the Synthetic A Priori” (August 21, 2018). https://phil871.colinmclear.net/notes/kant-on-synthetic-a-priori/ (Downloaded September 17, 2021)/).

[3] See, Werner Heisenberg, Physics and Philosophy: The Revolution in Modern Science (New York, NY: Harper Perennial, 1958), 60-66. Importantly, Heisenberg concludes that, “no physicist would be willing to follo Kant here if the term “a priori” is used in the absolute sense given to it by Kant.” Id, at 62.

[4] Kant, Groundwork, at 37.

[5] I would just note that it would take a pretty big optimist to see in the current unfolding of the polities of the East and West anything like inevitable progress, which is one of the reasons many thinkers view the Enlightenment project as now clearly failed.

[6] Seem Immanuel Kant, “The Natural Principles of the Unfolding of the Political Order Considered in Connection with the Idea of a Universal Cosmopolitan History” https://en.wikisource.org/wiki/Idea_of_a_Universal_History_on_a_Cosmopolitical_Plan (Downloaded September 21, 2021).

[7] Id.

Postlude to Adoption of the Constitution and Berkeley and Hume

This week’s blog is a breather and chance to take stock of where we are in this review of political philosophy and theology and to look just a bit at the way forward. The adoption of the United States Constitution was the high-water mark of the Enlightenment’s contribution to politics. The establishment of the United States created for the first time a government born of the theories at which we have been looking from Hobbes through Locke (especially), Rousseau, Montesquieu, as well as other 18th century thinkers we have not been able to review. The American Revolution was successful and a high point in the development of the modern world and modern democracy. History, however, never stops—and difficulties were to come.

French Revolution

Immediately after the Constitution was enacted, the French Revolution (1789-1799) erupted, with its nihilistic violence and the rise of Napoleon Bonaparte, causing thinking people everywhere to question its revolutionary idealism. The French Revolution, like other revolutions since, did not produce in France the stable democratic government and prosperity for which Enlightenment thinkers hoped. Instead, it produced deadly and erratic violence followed by a dictatorship that was a return to an imperial form of government characteristic of Alexander the Great and the Roman empire. Inevitably, the nations of Europe were engulfed in a long war against an aggressive military conqueror. Despite the progressive ideals of the Enlightenment, history seemed to be moving backwards.

American Unresolved Questions

The American Constitution, as critics often point out, left unresolved the question of slavery. During the first two-thirds of the 19th Century, after a brief period of solidification of the national government and its structures, the question of slavery was the dominant political issue of the day—and an issue that American politicians found impossible to resolve peacefully. This led to the American Civil War and the adoption of the several amendments to the Constitution that both permanently outlawed slavery and eventually vastly expanded the powers of the national government. The Civil War and its amendments will be the subject of future blogs this fall.

The Civil War settled the questions of slavery and of whether the states were sovereign and free to leave or sovereign but subordinate to the Federal Government. Furthermore, the Civil War began the rapid emergence of the United States as an industrial, economic, and military power. This set the stage for American involvement in the two great world wars of the 20th Century and what has been called, “The American Century.”

Political Philosophy After Locke

Philosophically, in my view, two thinkers brought the first phase of the Enlightenment to a close: George Berkeley (1685-1753) and David Hume (1711-1776). In particular, Hume’s radical skepticism threatened the entire Enlightenment project. [1] Immanuel Kant (1724-1804), who credited Hume for “waking him from his dogmatic slumbers,” and Fredrich Hegel (1770-1831) represent attempts to salvage Enlightenment on idealistic grounds. With Hegel the stage was set for the work of Karl Marx and the rise of 20th Century Marxism. This period is what I will call the second stage of the Enlightenment Project.

Interestingly from the point of view of political philosophy, Hume and Kant represent a continuation of the hopeful political thought of Descartes, Newton, Locke and others. They tacitly accept the division of the universe into matter and energy (force) and the division sponsored by Descartes between mind and matter, as two sperate things. They are suspicious of revealed religion and especially the Roman Catholic Church. They supported republican democracy, and their work was designed to defend the social and political achievements of the Enlightenment.

Naïve Idealism

George Berkeley was a critic of the materialism of Hobbes, the rationalism of Descartes, and the empiricism of Locke. Faced with the stark mind body dualism of Descartes, Berkeley defended a kind of naive idealism in which the fundamental reality is not matter but mind. There is no mind body dualism because everything is mind. Berkeley saw the weakness of Lockean empiricism in the fact that all the ideas and knowledge human beings possess comes from the senses via the mind. There is no necessary connection in Locke’s empiricism between the material world and our ideas of it. We do not know things, only sense impressions.

In Berkeley’s system, there is no stable external reality, only ideas. The ground of the continuity of our ideas is God, who functions for Berkeley as the ground of reality and the guarantor of the validity of human perception and thought. Politically, Berkeley viewed God as the source of the moral and laws. As one author notes, “Berkeley conceived of his immaterialism as part of his lifelong struggle against what he variously called atheism, skepticism or free-thinking – the challenge to religious authority over the social world.” [2] Politically, he was a supporter of the status quo, of slavery, and of social stratification. His political thought has never been popular or important

Hume’s Skepticism

The radical idealism of Berkeley was gleefully and most people think successfully attacked by David Hume. Hume died the year tyear the American Revolution began, and in this sense he is a thinker that preceded the Constitution. His work, however, has been more influential in years since the American Revolution. Born in Scotland, Hume was the leading thinker of what is sometimes called the “Scottish Enlightenment. He was the son of a Presbyterian minister, who gave up his faith for a kind of radical skepticism. Although Hume was a congenial person, his conclusions made him anathema to the Scottish leaders of his day, and he was twice denied professorships. Early on he published his Treatise on Human Nature (1737-8) which did not receive the notice for which its author hoped. Only later was his work appreciated, which is why he appears at this stage of our study.

No less a skeptical thinker than Bertrand Russell found the conclusions of Hume convincing but horrifying, and could only hope for a valid refutation, none being forthcoming up to his lifetime. [3] Hume accepted Berkeley’s notion that all we know are sense impressions. In Hume’s system, however, there is no God to guarantee the stability of the world and human perception, nor is there any necessary connection between successive sense impressions. His radical disjunction between the human mind and the material universe led to conclusions that undermined the validity of all human knowledge, including Newtonian science.

In this regard, most philosophers focus on Hume’s denial of causality. Hume denies that we can know causes. We only observe a succession of impressions and infer cause from that succession, but that inference is not a direct observation of cause. In other words, Hume uses empiricist idea that all of our ideas are based on sense impressions to eliminate one of the foundations of modern thought, the notion of cause. Thus, he concludes:

In a word, then, every effect is a distinct event from its cause. It could not, therefore, be discovered in the cause, and the first invention or conception of it a priori, must be entirely arbitrary. [4]

Taken at face value, this conclusion makes scientific thought impossible. All science could conceivably do is establish wholly arbitrary connections among sense impressions. [5] Here we see the beginnings of Positivism, which will emerge in the 19th and early 20th Centuries.

From the standpoint of moral and political thought, Hume’s skepticism has two other results. First, is Hobbes conclusion that there is no human “self”. Remember that Descartes began his philosophical system with the observation that the thinks therefore he must exist. [6] Hume denies that this is a valid conclusion. According to Hume, all we can know is successive perceptions which succeed on another. In this, as in other areas, Hume is a forerunner of the radical denial of a stable “self” characteristic of some forms of modern and post-modern thought. [7] Although his common sense approach to morals and politics ignores the implications of his conclusions, in the end if there is no stable self, there can be no stable moral actor in personal or public morality.

Second, Hume is a radical nominalist. All generals are illusory. They are simply names we give successive sense impressions based upon future expectations, which are often unwarranted. All of our general ideas are simply terms annexed to successive sense impressions that enable us to recall those sense impressions. Thus, ideals such as the good, the true and the beautiful, the notion of virtue and other transcendental ideals are emptied of content except for their base in sense and expectation. C. S. Peirce, as readers may recall, viewed this as the end of all thinking and a gigantic error. Once again, Hume raised in Christian Europe and in a traditional Scottish household accepted the common early Enlightenment hostility towards tradition and attitude that Christianity could be stripped of all its supernatural aspects, such as miracles without undermining morality. He did not grasp that the emotional response that a middle-class 18thCentury Scottish intellectual would have towards murder and other crimes might not be sustainable on the basis of a common human feeling of revulsion against such crimes.

Finally, Hume was a religious sceptic. As a child, he seems to have been religious, but in his adult life he rejected the miraculous and any form of orthodox Christianity. His radical empiricism and nominalism resulted in a denial of the rational validity of religious belief. He does not seem to have been an atheist so much as an agnostic, that is a person who does not believe that the question of whether there is or is not a god can be answered. His most famous religious conclusion is that no amount of evidence could possibly be created for miracles since some other natural explanation, however incredible, would be more likely to be true on empirical grounds. This view was based upon his definition of a miracle as something that transgresses a law of nature, a definition that many philosophers of religion reject.

Hume’s Political Thinking

Hume rejected both the notion of social contract maintaining that no government has ever been formed based on the universal consent of those governed, and any supernatural, divine source of government. Historically, Hume sees the contract theory as impossible, since there is no historic evidence for such a contract and many governments have been formed without such a contract, for example by conquest. In any case, even if there had been such a contract, no such contract would bind a future generation. Hume also rejects Locke’s notion of tacit consent, waging at attack on the idea that is nearly impossible to refute.

Hume grounds his political thought on the notion that people are loyal to a political system out of self-interest in the maintenance of a stable society. However a government is formed, it establishes a stable rule by creating conditions acceptable to its subjects. Once a stable government has emerged, it is founded on convention, that is on the mere fact that it exists and is performing the duties of a government. As such, Hume believes that there is no duty to support a government that is not performing its duties on behalf of society.

Hume’s practical, moral reasoning was empirical based upon the utility of an action. [8] Similarly, his political thought is utilitarian. Human governments are matters of convention based upon the need for protection from violence and justice in human relationships. Political legitimacy is based upon a government furthering the interests of its people. Government is legitimate only insofar as it promotes the common good. Once again, Hume seems not to have grasped that the notion of common good in his day was profoundly impacted by the Greco-Roman and Judeo-Christian tradition, and would not be able to be defended on Enlightenment principles alone.

Hume’s thought is also evolutionary. His view of political life is based upon his understanding of the gradual emergence of existing governmental forms, which was his own experience in Great Britain and its long history of the gradual evolution of democratic institutions. Hume was a political moderate, believing that excessive political conflict is ruinous to government. He supported the mixed form of government characteristic of Great Britain in his day.

Conclusion

I have placed Hume here in our philosophical wanderings because his thought, though not important during his lifetime contains the seeds of the final end of the Enlightenment project that emerges by the end of the 19th Century. His radical skepticism will eventually win the day. Fortunately, by the early 20th Century, a new physics and philosophical approach to fundamental issues will emerge, and with it hope to reconstruct a sound basis for freedom on somewhat different grounds. I am out of time and space, but hope to return to Hume again before this series of blogs is complete.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] When I refer to the Enlightenment Project, I am referring to the Age of Reason and the early enlightenment philosophers and their followers, who believed that human reason would liberate the human race from religious prejudice, monarchy, limited liberty, and usher in an era of unlimited progress. This period ended with the work of Darwin, Marx, Nietzsche and Freud whose work undermined confidence in human reason and exposed the psychologically dark materialistic, power-worshiping side of modernity. We will cover the “Four Horsemen” of the end of modernity in the Fall of 2021 Spring of 2022, I think.

[2] Tom Jones, On the necessity of obedience https://aeon.co/essays/from-immaterialism-to-obedience-in-the-philosophy-of-berkeley (downloaded, September 10, 2021).

[3] Bertand Russell, A History of Western Philosophy (New York, NY: Simon and Shuster, 1945), 659

[4] David Hume, Essay Concerning Human Understanding, Part I, Section 25 in Hutchins, Robert Maynard. 1955. Great books of the Western World. Chicago: Encyclopedia Britannica, Volume 35: “Locke, Berkeley, Hume”

[5] This was Alfred North Whitehead’s conclusion concerning the impact of Hume’s reasoning. See, Science and the Modern World (New York, NY: Beacon Press), 1925. We will examine Whitehead’s response to Hume when we look at process thought and its political implications.

[6] “Cognito Ergo Sum” or “I think, therefore I am.”

[7] Once again, Whitehead’s philosophy contains an explicit, and I think convincing answer to Hume, which will be dealt with in due time. Our personal identity does evolve under the pressure of all the incidents of our lives, which the self absorbs and integrates all of the experiences of our life, occasionally with fundamental results, but the notion of personal identity is fundamental in the self-identity experienced by human beings. See, Whitehead, Adventures in Ideas (New York, NY: Beacon Books, 1933) 186-187. From a religious point of view, a transforming moment of faith changes the human person in fundamental ways, but also leaves present the person who has come to faith.

[8] In this sense Hume is a forerunner of Utilitarianism, which will be dealt with later in these blogs. In passing, I note that Hume can also be seen as the forerunner of logical positivism.

The First Amendment: Freedom of Religion

The first Amendment to the Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” [1] As mentioned last week, this provision provides Americans with five freedoms: religion, speech, the press, public assembly, and petitioning government for redress of grievances. In this blog, I am only going to address the first of these, but they are all of fundamental importance to American life.

Freedom of Religion

Why this particular list of rights was placed first in the list? Why was freedom of religion so important to the nation at the time of its founding—so important that Congress was more or less required to pass the First Amendment as part of the process of ratification of the Consitution? Was it just a matter of convenience or chance? I do not think so. The experience of the founders and their study of history persuaded them that these rights are fundamental to the maintenance of the form of representative democracy.

In Europe, prior to the American Revolution, all of these rights were restricted in many ways. As to religion, it was customary in Europe for governments to establish a national religion, to which all persons and all leaders had to subscribe. In Great Britain for example, the king and leaders of the government were required to be Anglicans, and before that Roman Catholics. Often those not of the established religion suffered political and economic disadvantages. Upon occasion those not of the established religion were persecuted. As a result, there was social conflict. The founders did not want the United States to experience the kind of conflict Europe had experienced over these matters. Therefore, they enshrined in the Bill of Rights a restriction on the establishment of any particular religion to be required of citizens..

In addition, at the time of the adoption of the Constitution, many of the states had established churches. In the South, the Anglican faith was often the established church, while in the North, it was frequently a particular Protestant faith group. Naturally, there was a fear among all these faith groups that some other group would end up as the established religion of the new nation. This would have provoked the exact situation that many colonists had come to America to avoid—religious persecution. In order to remedy the danger, the establishment clause was deemed necessary.

The text of the amendment was largely authored by James Madison, who modeled the amendment after the Virginia Declaration of Rights. By its terms, the freedom of religion provisions of the First Amendment apply only to the national government; however, in the 20th Century the First Amendment was applied to the states via the 14thAmendment. [2] There have always been tensions between the national government and a particular social consensus and the right of religion and such tensions continue to exist today. [3]

The Central Importance of Freedom of Religion

In guaranteeing freedom of religion, the founders were acknowledging that in our form of government people may have an ultimate loyalty different than loyalty to the state. That is to say that having religious faith, even a faith of which the dominant party does not approve, is a basic American right. It is not unfair to say that freedom of religion is the ground and basis of all other rights, for in granting this freedom a government is acknowledging a fundamental limitation on what government can and should legislate. Government may legislate in matters related to the public good of a society, but cannot interfere with the private ultimate concerns of individuals nor the exercise of their religious faith except under very limited conditions as it regulates matters which is entitled to regulate. [4]

It is difficult to over-estimate the importance of religious freedom to the maintenance of a free society. Totalitarian regimes of the 20th Century have persecuted some religious group. In the Soviet Union it was Orthodox Christians. In Nazi Germany, it was Jews and Christians who did not align themselves with the ideology of the regime. In parts of China today, it includes Muslims and other religious groups. In some Muslim nations it is all non-Muslims. For citizens of the United States, the First Amendment ensures their fundamental right to practice their religion and to speak publicly concerning their faith. [5]

Separation of Church and State

Perhaps the most contentious application of the First amendment in modern times has been the implication of the First Amendment that there must be some kind of “separation” of Church and State. Any analysis of this view must begin with the plain fact that the First Amendment simply says that Congress cannot establish a religion. It says nothing about separation. However, the grant of religious freedom itself implies some degree of separation, since the government cannot make laws that restrict religious freedom and the expression of religious faith.

As early as 1635 Roger Williams, the founder Rhode Island and separatist/puritan, publicly stated his belief an genuine Christian church required “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Williams was a contentious individual, and had been in conflict with the religious and other leaders of Massachusetts over his views on property and religious matters.

In 1802, Thomas Jefferson used the phrase “Wall of Separation” in a private letter to describe his feelings about the nature of the separation the Constitution embodies. Jefferson wrote to the leaders of the Danbury Baptist Church:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. [6]

Jefferson’s letter, however has been important to the United States Supreme Court. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause. Writing for the Court, Justice Black, after setting out in detail the history summarized here stated:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.” [7]

Before, and ever since Everson, the language of “Wall of Separation” has been a phrase of contention and difficulty for the Court and scholars. The phrase itself is not very helpful, for there never was nor can there be such a “wall.” It is better to stay with the idea of rights to believe and exercise that belief free from interference by the government.

One continuing idea of this series of blogs is the notion that human beings and human societies are inherently social and interconnected. It is neither desirable nor possible to divorce individuals nor to enforce some kind of artificial division between religious faith and public life. There are and must be areas in which religion is free to operate without governmental inferference. There are also areas where government is free to operate which may impact religious groups—and these areas are not necessarily separated. For example, freedom of religion does not permit religious sects to engage in human sacrifice, and the state has a valid concern in protecting “life, liberty and property” in regulating the taking of life.

Wall of Separation language is used to buttress decisions made on other grounds—and can lead courts to bad decisions. It is a better notion to talk about religion and government as operating in different spheres of human life, touching upon each other and impacting one another at various points. The goal of the Constitution and courts in interpreting the First Amendment is to express limitations upon each in the proper exercise of their functions. There is and can be no “wall of separation” because human life is unitary and our ultimate concerns impact our political life and our political life impacts our ultimate concerns.

Limitations on First Amendment Rights

The current Covid19 epidemic has provided a series of challenges that can be helpful in thinking through what the First Amendment does and does not allow and prohibit. There have been a number of cases challenging public health initiatives, mask regulations, restrictions on gatherings, and the like on religious grounds. The responses of the courts sometimes have sometimes had a political tone, nevertheless the following seems to be the case:

  1. The states and national government have a valid interest in protecting against Covid19, and religious groups have no absolute religious exemption from reasonable, valid health regulations.
  2. If a state is to have restrictions that apply to religious organizations, such restrictions cannot be different than those on comparable groups, and of course, cannot be motivated by animus against religion or a religious group.
  3. The courts are not equipped or empowered to, nor should they, second guess governmental determinations about the seriousness of the epidemic or adequate health regulations equally applied to all similarly situated entities, including churches. [8]

It would be nice to think that we are past the Covid19 cases, but the emergence of the Delta variant and the pressure to bring back masks and some forms of restrictions on public meetings may render this untrue. On the part of government, restrictions need to be carefully crafted, recognizing the importance of religious institutions to human life. On the part of churches, there needs to be an acceptance of the fact that the First Amendment does not give religious institutions any kind of absolute exemption from public health regulations.

It would seem to me that these principles are those that ought to guide the court in this area as in other areas. For example, there is no absolute exemption to religious groups for zoning regulations; however, a zoning regulation that seems to target churches, is dissimilar to regulations governing other entities that are similar, for example non-profit groups, and which would render the freedom of religion meaningless, should be suspect on exactly the criteria mentioned above.

Conclusion

We are not finished with the First Amendment, to which I will return near the end of these blogs. I count myself among those who are concerned about the state of religion and religious freedom in our nation. It is the premise of these blogs that religion plays an important role in human life and in human society. Its voice needs to be heard in matters of public concern, and there should be few restrictions imposed under the guise of restricting “hate speech.” In a free society, we all have to tolerate a people with beliefs and policy preferences to which we object. This is true for all Americans. On the other hand, the right to speak and to exercise religious faith in public is not a carte blanche to ignore the good of society or not be faced with legitimate regulation for the public good. Public health reputation is a very good example of a legitimate area of governmental interest.

This is where the “politics of love” has something to say, and Christians should be in the forefront of moving our society from its beguilement by identity politics and emotion-laden language about public matters. Public officials need to serve all their constituents, including religious groups, giving them the most freedom that is possible in any given situation. Religious groups need to give public agencies the benefit of their views and the benefit of their willingness to compromise in the process of seeking the public good.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Amendment 1.

[2] I will discuss the 13th, 14th, and 15th Amendments when we reach the Civil War and its aftermath in this study. See, Cantwell v. Connecticut 310 US 396 (1940).

[3] For example in Reynolds v. United States 98 US 145 (1879), the U.S. Supreme court was faced with a challenge to a law prohibiting polygamy on the grounds that such a restriction would interfere with the religious beliefs of Mormons. Reynolds was a Mormon and claimed that polygamy was an essential part of the practice of his rekgions faith. The court upheld the law prohibiting polygamy. In Engle vs Engel v. Vitale, 370 U.S. 421 (1962), the court held that public schools cannot have a written prayer as a part of the their day, as whatever the form of that prayer, it would interfere with students of some other religion in such a way as to establish a religion.

[4] I am using this term made popular by the theologian Paul Tillich. In his book Dynamics of Faith, Tillich uses this definition of faith as state of being ultimately concerned. If an object of faith (God or whatever any religion claims ultimate) such faith demands the total surrender of the person who accepts this claim on his or her life, and that faith promises total fulfillment even if all others have claim to be subjected to it or rejected (See Paul Tillich, Dynamics of Faith (New York, Harper & row, 1958), 1.

[5] In the beginning, the First Amendment protected minority Christian sects and Jewish people from religious persecution. Today, the Supreme Court has recognized that, under the pluralistic condition of contemporary America that freedom extends to all religious.

[6] Thomas Jefferson, Letter to the Danbury Church (January 1, 1802).

[7] Everson v. Board of Education, 330 US 1 (1947).

[8] The Federal Courts and US supreme court have been faced with a variety of challenges to various restrictions placed upon religions organizations due to the Covid epidemic. Justice Ginsburg died during the emergence of these cases and there has been some change in the direction of the court since Amy Comey Barrett joined the court. However, the general direction of the court has changed only in degree, in my opinion, not in legal substance. For a complete list of cases see, United States courts, “Court Orders and Updates During COVID-19 Pandemic” https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic, downloaded September 1, 2021.

 

Constitution 10: Ratification and the Bill of Rights

During the convention, there was considerable attention given to the process for adoption of the Constitution. Initially, the issue revolved around whether the Constitution should be sent to the Congress to be ratified as was the Articles of Confederation (and thereby treated as no more than an amendment to that document). The founders were of the view that the transformation of the government into a supreme national government required a different ratification process. They felt the document needed to be ratified in some way by the people themselves and not by the states, which would establish the sovereignty of the new government within its sphere of responsibility.

A second procedural question revolved around how many states would be required to institute the new government. This was an important question, for all states were required to adopt the new Constitution it would surely fail, but if too few states joined, it might also fail. In the end, Article VII provided that if nine of the thirteen states were to ratify the Constitution, it would be sufficient to create the new government among the states so ratifying the document. [1]

Ratification

As mentioned above, Article 7 provided that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” [2] Notice that Article VII establishes a procedure by which each state would have a convention made up of representatives of the people who would ratify or fail to ratify the Constitution. This particular provision was not without controversy at the time because the Articles of Confederation provided that it would take a unanimous agreement of all states to amend the document. [3]

In Federalist No. 40, Madison defended the action of the Convection as warranted because this was not merely an amendment of the Articles of Confederation but a fundamental change of the form of government to which the people ought to consent. Thus, Madison wrote in The Federalist No. 40 that, “in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” [4] In other words, from a practical point of view, ratification by the people was the best means, since a substantial change in the form of the national government was to be effected.

From a practical point of view, the process was necessary to remedy in practice a defect of the Articles of Incorporation: it required unanimous consent for amendments, which was too high a bar for effective government. The founders were practical people. They wished to create a process that would ensure that changes were not made for purely political or passing reasons, but which would enable the document to be modified when necessary. The founders, and especially Hamilton did not consider that they were omniscient or had created a perfect document, and they wanted to provide a reasonable chance for change. [5]

On June 21, 1788, not a year after the proposal was sent to the states, New Hampshire became the nineth state to ratify, and the Constitution became the supreme law of the land. It is notable that after New Hampshire, two of the most powerful states, New York and Virginia ratified the document, indicating their desire not to be “left behind” in the establishment of the new nation and disadvantaged by the new union. [6]

Need for the Initial Bill of Rights

The single greatest objection to ratification of the Constitution was the absence of a Bill of Rights. In the end, the first ten amendments were added to the document to satisfy those who opposed the Constitution on this basis. During the Constitutional Convention, it was understood that the absence of a Bill of Rights could be a barrier to adoption of the Constitution. On September 12, 1787, George Mason of Virginia made a motion to the Convention to create a Bill of Rights. Elbridge Gerry of Massachusetts seconded the motion. Since both were opposed to the new form of government, they might not have been the best persons to make the motion, and Mason’s motion failed. However, their motion was an indication of the importance a Bill of Rights might be in the ratification process.

This was not the end of the matter. Thus far, I have been quoting the Federalist Papers, but the Federalist Papers were not the only papers prepared. The antifederalists had their own intellectual army. Robert Yates, writing under the pseudonym of Brutus, wrote the following:

Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage. [7]

The situation in Massachusetts was especially violent and a warning to the Federalists of problems in securing the ratification of the document in certain states. By this time, the need for a Bill of rights was obvious and during the first Congress, James Madison, now a Congressman from Virginia, went about the business of creating one. He made an examination of various potential amendments and made a proposal, ten of which were enacted as the first ten amendments to the Constitution in 1791.

Bill of Rights as Adopted

Set out below is a brief description of the Bill of Rights:

  • The First Amendment: Five Freedoms. The First Amendment protects five basic liberties. They are (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to right wrongs. These were the guarantees that the Anti-Federalists complained were importantly missing in the new Constitution.
    • Freedom of Religion means that the government may not force you to accept one set of religious beliefs nor may it interfere with the way you worship. [8]
    • Freedom of Speech entitles American citizens to say what they think, provided they do not intentionally hurt someone else’s reputation by making false accusations. Neither may they make irresponsible statements deliberately harmful to others, such as yelling, “Fire!” in a crowded theater when there is no fire. There are many issues about which Americans disagree, from child-rearing practices to baseball teams to Presidential candidates. Freedom of speech enables people to state their opinions openly to try to convince others to change their minds.
    • Freedom of the Press makes it possible for Americans to keep informed about what is going on in government. It helps them to be responsible citizens. Reporters and editors can criticize the government without the risk of punishment, provided they do not deliberately tell lies. Newspapers, magazines, and books, as well as television and movie scripts, do not have to be submitted for government inspection before they are published. This censorship would violate the First Amendment.
    • Freedom of Assembly makes it possible for Americans to join clubs or political parties, even if those groups represent unpopular views.
    • Freedom to Petition allows people to tell the government what they think is needed. They can try to prevent the government from acting in a certain way. They can complain to the government without fear of penalty when things aren’t going the way they should.
    • The Second Amendment: The Right to Bear Arms. The Second Amendment both recognizes that individual have the right to maintain “a well-regulated militia,” and that citizens have the right to “keep and bear arms.” [9]
    • The Third Amendment: Housing Troops. The Third Amendment pledges that in peacetime citizens will never have to keep soldiers in their homes without consent.
    • The Fourth Amendment: Searches and Seizure. The Fourth through Eighth Amendments concern the rights of people suspected of a crime. The Fourth Amendment protects citizens from improper searches of their bodies, possessions, or homes. It requires that a detailed warrant be issued by a judge listing what can be searched. There has to be a good reason for the search.
    • The Fifth Amendment: Rights of the Accused, Due Process of the Law, and Eminent Domain. The Fifth Amendment protects the rights of anyone accused of a crime. It assumes that everyone is innocent until proven guilty.
      • Grand Jury. When a person is accused of infamous crime, including especially one for which the punishment could be death, the Fifth Amendment requires that a “grand jury” look at the charges before that person can be brought trial. A grand jury is a group of citizens who decide if there is enough evidence to try a person. It is intended to prevent people from being falsely accused of a serious crime
      • Multiple Trials. The Fifth Amendment states that the person cannot be tried twice for the same crime, prohibiting so-called “Double Jeopardy.”
      • Self-Incrimination. The Fifth Amendment guarantees citizens freedom from against “self-incrimination.” This means people cannot be forced to testify against themselves. Under the Fifth Amendment, law enforcement officials must produce the evidence necessary to convict a person of a crime. The accused person cannot be made to provide it. The guarantee against self-incrimination makes sure that unfair pressure cannot be used to make a person confess.
      • Due Process of the Law.Another section of the Fifth Amendment holds that “no one can be deprived of life, liberty, or property without due process of law.” In other words, the government must follow certain legal procedures before deciding on a penalty. It can’t jail a person because it suspects that the person committed a crime. It must prove the accusation by following certain rules and methods.
      • Eminent Domain.Finally, the Fifth Amendment requires the government to pay citizens when it takes over their property for a public use. The government’s right to take this property is called “eminent domain.” Suppose the state wanted to build a highway which would run right through your residence. It would have to pay the owners a reasonable price for the property. The government could force you to move, but at least it would have to provide you with the money to relocate.
    • The Sixth Amendment: Fair and Speedy Trials. The Sixth Amendment provides more requirements for a fair trial in criminal cases. It guarantees a speedy, public trial by an impartial jury in the area where the crime was committed. The defendant must be able to question the accusers and to force favorable witnesses to testify. The accused has a right to a lawyer.
    • The Seventh Amendment: Jury Trials. The Seventh Amendment guarantees that Americans will receive a jury trial in civil (as opposed to criminal) cases involving property worth more than $20 and no fact can be retried without a jury making findings of fact.
    • The Eighth Amendment: Bails, Fines, and Punishments. The Eighth Amendment protects people from having to pay unreasonably high “bail” in order to be released from prison before they go to trial. Bail is money given to pledge that a person accused of a crime will appear for trial. The Eighth Amendment also protects people from unreasonably high fines. Finally, it outlaws cruel and unusual punishment. This requirement, as well as the Fifth Amendment’s guarantee against self-incrimination, protects citizens from the use of torture. [10]
    • The Ninth and Tenth Amendments: Reserved Powers. The last two amendments address the liberties of citizens and the rights of states. The Ninth Amendment states that the Constitution and the Bill of Rights do not define all of the fundamental rights people have. Such rights exist whether or not they are defined. The Tenth Amendment makes a similar claim concerning the rights of the states. It holds that the states and the people have powers that are set aside and not listed item by item. These powers are called “reserved powers.” They can be contrasted with “express powers,” which are specifically defined in the Constitution.

With the adoption of the Bill of Rights, the Constitution as it was initially created was complete.

Conclusion

The Bill of Rights is important for a number of reasons, and much Constitutional Law revolves around application of its provisions. The Bill of Rights is initially important for by forcing its adoption and experiencing the ratification process, the United States of America put into effect the amendment process, and showed that a free people could be trusted to amend their fundamental charter. The elites of the nation, and especially Hamilton, did not think that a Bill of Rights was either necessary or desirable. The people disagreed and it was the will of the people which prevailed. In the beginning more than ten amendments were proposed, but ten were finally chosen. Today, one can hardly imagine the United States Constitution without the Bill of Rights. Its importance to the nation and to human liberty cannot be over-estimated.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Article VII.

[2] Id.

[3] Articles of Confederation, Article XIII.

[4] Federalist Papers, No. 40 (Madison).

[5] As an aside, I doubt that the Constitution could have been adopted in its original form had the convention process with a nine-state minimum not been devised for ratification. Patrick Henry, of Virginia, was a leader of the group opposing ratification.

[6] The states ratifying the document and dates are: Delaware – December 7, 1787, Pennsylvania – December 12, 1787, New Jersey – December 18, 1787, Georgia – January 2, 1788, Connecticut – January 9, 1788, Massachusetts – February 6, 1788. Maryland – April 28, 1788, South Carolina – May 23, 1788, New Hampshire – June 21, 1788, Virginia – June 25, 1788, New York – July 26, 1788, North Carolina – November 21, 1789, Rhode Island – May 29, 1790. Vermont was not a state at the time the Articles of Confederation were adopted and did not participate in the Convention or ratification.

[7] See, “Brutus,” Essays I, VI, X-XII, and XV (Oct.18 and Dec.27, 1787; Jan. 24 and 31, Feb. 7 and March 20, 1788) for a full series of the antifederalist arguments.

[8] I intend to do a separate blog on this particular amendment, since it is important to the reason for these blogs.

[9] Because criminals often used unlicensed weapons to hurt others, some people have urged the national government to control the sale of guns. Other people have argued that gun control is a violation of the Second Amendment. The wording of the document would seem to indicate that to attempt to regulate this would interfere with a fundamentally state right.

[10] Currently, the most important cases involving this amendment concern whether the death penalty is a form of cruel and unusual punishment.

Constitution 9: Article VI: Debts, Supremacy, Oaths.

Article VI of the Constitution provides for the assumption by the new government of the debts of the United States as it existed under the Articles of Confederation, that the US Constitution, and all laws made from it are the Supreme Law of the Land (the so-called “Supremacy Clause”), and all that officials, whether members of the state legislatures, Congress, judiciary or the Executive have to swear an oath to the Constitution, with the limitation that no religious test can ever be made for holding of public office.

Assumption of Debts

As indicated previously, one of the most vexing problems under the Constitution involved payment of the national debt, most of which was incurred during the Revolutionary War, and the payment of which was made impossible by the lack of a taxing authority in Congress under the Articles of Confederation. The inability of the national government to make full payment on this debt was both an embarrassment and a source of difficulty in securing the new nation a position among the nations of the world, and particularly those, like France, who had assisted the new nation during the war. One of the most important goals of those who supported a stronger national government was to provide for the payment of these debts.

Under international law, it was possible that the debts of the nation might be avoided due to the radical change in form the Constitution would envision. The first clause of Article VI was inserted with the intention of avoiding the inference that this was the case and to assure the creditors of the nation that the new government would pay the debts of the old. [1] Madison thought the provision declaratory of the intention not to attempt to avoid the debts created under the Articles of Confederation by a legal devise, but to meet the economic obligations of created under the former form of government. [2]

Supremacy Clause

The Supremacy Clause provides that the laws of the United States, laws enacted by Congress, and valid treaties made according to the process set out in the Constitution are the supreme law of the land, binding on both state and federal officials. Neither other provisions of the Constitution nor any state laws may allow or create a contrary result. Today, Americans take the supremacy of the national government for granted. However, it is important to remember that this was not the case in 1787. The danger at the formation was not of a federal power capable of rendering state sovereignty illusory, but of states that rendered the national sovereignty illusory.

Under the Articles of Confederation, state courts had the power to interpret the Articles of Confederation and any enactments of Congress under the prevailing doctrinal fact that the national government was not supreme, but only the organ of a confederacy of independent states. This meant that the thirteen states could end up with thirteen different interpretations of federal law. The result was chaos.

The framers were creating a form of government in which there would be dual sovereignty: the states supreme with respect to the matters entrusted to their control and the national government supreme as to matters entrusted to its control.

Hamilton defended this dual sovereignty in Federalist 27, saying:

It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [3]

The phrases put in capital letters gives Hamilton’s view of the situation. The Federal Government’s supremacy extended to its enactment and enforcement of laws pursuant to its “legitimate, enumerated powers.” Federal and state magistrates, legislatures and courts are bound by such enactments as far as the just and constitutional authority extends.

It was not long, however, before the rather narrow boundaries set by Hamilton were extended by the courts. Chief Justice Marshall, speaking for the Court, stated that ‘‘the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” [4]  In the court’s view, their decision was “the unavoidable consequence of that supremacy which the Constitution has declared,” a position that the Court has not changed in the intervening period. [5]

Oaths and Religious Tests

Under the third clause of Article VI, Senators, Representatives, Members of the state legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by oath to support the Constitution; however, no religious test can be required as a qualification to any office or public. This provision has two distinct features:

  1. Both state and national officers must take an oath of loyalty to the Constitution.
  2. While Congress can designate a form for such and oath, no such oath can involve a “religious test.”

From the beginning, it was envisioned that both state and national officers would need to pledge loyalty to the system of government that the Constitution established. As Madison notes in the Federalist Papers, various provisions contained in the Constitution require the cooperation of state officials to bring to fruition, matters such as the election of Senators and Congressman, and electors for the office of President. [6] While not without controversy, it is clear that, for the national government to be supreme within its sphere of influence, it would be necessary for state officials to support and defend the Constitution as well as faithfully execute their offices where constitutional matters were concerned. The reverse was not felt to be true, because state governments were sovereign already and the functions of the state government were not similarly intertwined.

A bit of history helps one to understand the prohibition on religious tests. The founders were aware that, at various times, religious tests for office had been a feature of British law, used to force compliance with the religious views of a king or queen. These laws were used during the instability surrounding the period from Henry VIII to the Glorious Revolution in such a way that Catholics and Protestants were impacted. The founders wished to avoid the recurrence of this kind of religious persecution on American soil.

Conclusion

By and by large, the success of Article VI is demonstrated by the relative lack of controversy that it has engendered in recent times. The responsibility of the United States government for the debts incurred under the Articles of Confederation is a problem long solved. Today, the greater problem is the seemingly endless amount of debt the federal government incurs.

In the beginning, it was necessary to work out the implications of the Supremacy Clause, for some if not all of the states were impacted by this provision and it was natural that its scope would have to be defined. Today, the greater difficulty might be in defining the limits of the Supremacy Clause, for today the scope of federal power and responsibility is much greater than at the time of adoption of the Constitution. Consistent with the relational and organic position of these blogs, my view is that the Supremacy Clause is not a warrant for the federal government to ignore the sovereign rights of the states. In a state of dual sovereignty, it is the duty of the greater power to not interfere with the lesser powers without due cause.

The oath of office controversy was substantially a controversy that impacted the adoption of the Constitution and the operation of the government in the early years when fidelity to the Constitution could not necessarily be assumed. Today, the greater issue is the effectiveness of oaths in a world in which oaths and moral commitments are often not seen to be binding.

A particular continuing item of importance is the prohibition on religious oaths. Various more liberal members of Congress have from time to time voiced the opinion that Christians, perhaps especially more conservative Christians, should not be able to serve in certain offices. When the religious tests provision was included in the Constitution, the obvious concern was to prevent a dominant group, probably Protestants, from requiring an oath that would prevent minority religious groups, probably Catholics, from holding office. This was a problem that they clearly recognized as a feature of English history to be avoided. Today, what might be called “secularism” functions as a religion for many people, especially among political and economic elites. The religious tests provision provides (or should provide) a barrier against religious discrimination of exactly the kind the founders sought to avoid.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved 

[1] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961) No. 43 (Madison), found at 278. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[2] It is most interesting that Madison believed the debt to be a moral obligation that should not be avoided by recourse to international law. Id.

[3] Federalist Papers No. 27 (Hamilton)

[4] McCulloch v. Maryland 17 U.S. 436 (1819).

[5] Id.

[6] Federalist Papers, No.44 (Madison).

Christian wisdom for abundant living

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