Constitution 1: Articles of Confederation—An Inadequate Union

The Revolutionary War (April 19, 1775 – September 3, 1783) was a crucible that required the thirteen original colonies to learn to work together. For most of the war, they did do without any formal constitution. The result was that the Continental Army, led by George Washington, was chronically underfunded and the colonies very nearly did not survive the conflict. Beginning with Benjamin Franklin, several attempts were made to create a stable government that would enable the colonies to survive. Only with the adoption of the Constitution of the United States of America in 1789 was the problem of providing a stable government finally solved.

Many Americans do not realize that our current Constitution is not the first the United States of America possessed. A document known as “Articles of Confederation and Perpetual Union” (Articles of Confederation) was the initial written constitution of the United States. It was ratified on March 1, 1781, with the Revolutionary War already five years in duration. [1] The reasons for the delay were many. Each of the colonies already had a government, which government was considered sovereign. The states were reluctant to give up this sovereignty in any meaningful way. This meant that diplomatically any nation in Europe that wanted to recognize the fledgling union theoretically had to reach treaties with thirteen independent states.

As a sovereign state, each state had the sole power of taxation, and the Continental Congress and Army was completely dependent upon the voluntary funding of the several states of any commitments they made. The raising of troops to conduct the conflict was similarly voluntary. This defect was early understood by Washington and other leaders. Equally problematic were the many disputes between the states over land, and the fear of smaller, states that larger states, like Virginia would dominate their neighbors.

The Articles of Confederation

Under Articles of Confederation, the individual states remained sovereign and independent. [2] The United States of America was not really a nation but a “firm league of friendship.” [3] This “league of firm friendship” had certain characteristics in common with the leagues of ancient Greece and Germany,  and was subject to all their defects. [4]

The problem of international diplomacy was “solved,” as Congress was given the power to make treaties and alliances, and maintain armed forces. [5] There was however no means by which these powers could be effectively wielded.

Generally speaking, only Congress could declare war. [6] However, the central government could not levy taxes to assure the effective conduct of a war. This, of course, meant that the problem of the perennial bankruptcy of the federal government was not solved. A case in point were the debts incurred to prosecute the Revolutionary War. [7] They were assumed by the Articles of Confederation, but the Congress could not levy and enforce the taxes necessary to pay them. After the conclusion of the Revolutionary War, this meant that the United States of America was constantly unable to pay the substantial debts it had incurred in prosecuting the war.

The small, new and independent nation with a form of government unlike any of its European trade partners, allies and foes, was under constant threat. Obviously, as the War of 1812 proved, Great Britain had not necessarily given up any colonial ambitions in the New World. France, Spain,  and other European nations might also seek some kind of conquest of the new nation. The inability to tax and support a military establishment meant that the United States of America might be an inviting target for invasion.

Central Defects of the Articles of Confederation

The defects in the Articles of Confederation were many. At the core of the problem was the simple fact that the states retained complete sovereignty, and the federal government lacked the power to be effective. [8] In the end, the former colonies were accustomed to external protection and the resolution of intra-colonial disputes by the British government, and the Articles of Confederation provided no means by which the former colonies could experience the benefits of the effective central government whose protection they had formerly enjoyed.

The only institution of government was the Congress. There was no executive or judiciary. The Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [9] There was no effective, permanent, central executive function. Obviously, this made administration and defense nearly impossible. The absence of a judiciary (Congress had some judicial powers) meant that the resolution of disputes was difficult.

Those familiar with Montesquieu and the division of republican government into three separate and independent departments clearly saw the deficiency of this model for a government. It had only a legislative function and lacked the robust executive and judicial functions necessary for a stable polity. The entire scheme was unlikely to withstand any severe test.

The inability to tax meant that the government was weak and unable to act without begging for money, which did not always arrive in a timely manner, if at all.  The problem with the Articles of Confederation was that although Congress had certain powers, it had no real power to exercise or enforce those powers. As Hamilton and Madison were quick to point out, a confederation with responsibilities but no powers to accomplish those responsibilities sort of war was sure to fail. [10] In the end, this led to governmental inefficiency and chaos.

Finally, under the Articles of Confederation there was no means by which the states could be prevented from engaging in economic policies which were injurious to one another and to the general prosperity of the union. There were constant interstate conflicts as states attempted to gain some kind of economic advantage over each other. In addition, there was no central agency that could regulate international commerce to the benefit of all. [11] Congress was unable to protect the freedom of commerce within the nation because it lacked the powers necessary to do so.

By 1787, wise minds recognized that the situation was not tenable. Changes had to be made. Unfortunately, there was no unanimity as to what those changes might be. Many people thought that only slight changes in the Articles of Confederation were needed—changes that could be accomplished by amendment. Others, like Alexander Hamilton, thought the Articles of Confederation fundamentally defective and in need of complete replacement. There were even those who felt that the solution to the problems of the Articles of Confederation was to substitute two or more smaller confederations of like-minded states for the single entity that existed under the Articles of Confederation. [12]

Conclusion

As indicated above, by the eve of the Constitutional Convention of 1787, nearly all the best leadership of the United States of America realized that its current form of government would have to be revised. It was impossible for the new nation to adequately provide for its common defense or to secure the respect and trust of other nations under the current situation. It was for this reason that, in February of 1787, Congress provided for a convention, which originally was to seek ways to amend the existing Articles of Confederation, and from which our current constitution emerged.

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

[1] See, United States Code: Articles of Confederation – 1777 (1952), hereinafter, “Articles of Confederation.”

[2] Articles of Confederation, Article II. “Each State retains Its sovereignty, freedom and independence, and every power, juris-diction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

[3] Articles of Confederation, Article III.

[4] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 18 (Madison and Hamilton). All references to the Federalist Papers are to this edition and will be cited, “Federalist Papers Number, and Author.

[5] Articles of Confederation, Article VI.

[6] Articles of Confederation, Article 4. If actually invaded by a foreign power, staters could conduct wars under the Articles of Confederation.

[7] Articles of Confederation, Article XII.

[8] Federalist Papers, No. 15 (Hamilton).

[9] Articles of Confederation, Article IX.

[10] Federalist Papers, No. 18 (Madison and Hamilton).

[11] Federalist Paper No. 15 (Hamilton)

[12] Several of the Federalist Papers authored by Alexander Hamilton, John Jay, and James Madison are devoted to exposing the obvious flaws of this solution, which would have inevitably resulted in different states and confederacies having differing treaties and alliances, that might easily result in conflict among the states.

Montesquieu 2: On Religion and the Role of Religion in Public Life

As indicated last week, Charles baron de Montesquieu is a significant thinker for understanding the political ideas of the Enlightenment and American democracy. His work Spirit of the Laws is the most quoted philosophical work by the founders, quoted more often than John Locke. [1] His work was important for the development of our notion of limited government and separation of powers. He was also significant because of his understanding of the importance of religion and the development of religious freedom is reflected in our Constitution.

Born in 1687, he was raised a Roman Catholic but married a Protestant Huguenot. Like Burke, his experience of religious intolerance under the Bourbon kings impacted and formed his views on religious liberty. The exact character of his religious faith is the subject of academic discussion, but my view is that he considered himself a Christian, though like many Enlightenment thinkers, he is not consistently committed to any particular theology or interpretation of Christian faith. As a political thinker, his interest in Christian faith is practical and moral.

Virtue and Religion

As indicated last week, Montesquieu believed that a democratic republic must be founded on the virtue of its citizens. Without the kind of virtue that results in love of liberty, no democracy can sustain itself. As a result, moral education and moral formation are essential in the formation and maintenance of a republican government.

The formation of moral character and the ability to restrain immediate desire for the long-term good are fundamental to the Christian religion and to Western culture generally. The theological virtues of faith, hope and love and the cardinal virtues of justice, prudence, fortitude, and temperance lay the core of the historic Catholic notion of virtue in Montesquieu’s day as they do for Christians in our own day. Justice that lies at the basis of all good government; Prudence is necessary for the wise management of public affairs; Fortitude is necessary in times of danger; and Temperance is necessary to restrain the passions.

Religion and the State

Because of its role in the promotion of those virtues required to support a stable government, religion plays and important role in Montesquieu’s thought. Montesquieu recognizes that, as a matter of historical fact, religion has deeply impacted all human civilizations. [2] In the case of Israel (Judaism), Europe (Christianity), the Middle East (Islam), China (Confucianism), and Japan (Shinto), religion can be seen as having an extraordinary impact on society. As his analysis proceeds, Montesquieu shows a familiarity with each of these religions, and the way in which they formed the culture and laws of a society.

As a Christian and citizen of a Christian state, Montesquieu believed that the Christian religion played an important role in the evolution and development of republican democracy and the avoidance of despotism:

The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospel is incompatible with the despotic rage with which a prince punishes his subjects, and exercises himself in cruelty. As this religion forbids the plurality of wives, its princes are less confined, less concealed from their subjects, and consequently have more humanity: they are more disposed to be directed by laws, and more capable of perceiving that they cannot do whatever they please. [3]

In Montesquieu’s view, Christianity stamped its character on the social mores and jurisprudence of the West due to its crucial role in creating the distinct characteristics of Western civilization. The “mildness” of the Gospel portrayals of God impacted the willingness of Westerners to obey the state and avoid violent, revolutionary, destructive social behavior. The way in which Christianity in the West incorporated the values on ancient Greece and Rome, contributed to the evolution of republican government in Europe.

In the west today, Christians can best recommend themselves as guardians of republican democracy by urging and demonstrating the virtues of love for the other, tolerance of other views, and abhorrence of violence as a political tool. Christianity is no longer dominant in the West, and Protestantism is no longer dominant in America. We live in a “post-Christian” society. This does not mean what we live in a society where people are not touched by self-giving love and an example of wise and healthy living.

To say that Christians should demonstrate and support traditional Christian values is not to say that other groups should not share their values. As will be seen below, secular humanism functions like a religion for many Westerners today, and it brings with it virtues that are part of the formation and maintenance of the modern state. What is necessary, and hopefully possible, is for secular people and religious people to create a political social space in which all views can be peacefully heard in a common quest for a just and peaceful society.

Love as Guard Against Despotism

One of the most important Christian contributions can be the creation of a “politics of love” in the center of democratic societies. As Montesquieu notes, the centrality of love in Christian thought is conducive to development of a society in which human beings peacefully seek the best for one another. “The Christian Religion, which ordains that men should love each other, would, without doubt, have every nation blest with the best civil, the best political laws, because these, next to religion are the greatest good that men can give and receive.” [4]

By its very nature, Christianity seeks a moderate government that is best created in some form of republican democracy. Thus, “the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospels is incompatible with despotic rage with which a prince punishes his subjects and exercises himself with cruelty.” [5] In particular, Montesquieu sees that Protestantism is particularly compatible with a freedom of liberty. [6] In this respect his views are similar to those of Burke.

In a stunning warning that foresees the demonic character of the French Revolution and the violence of revolutionary movements of the 20th and 21st Centuries, Montesquieu notes that “Those who forsake religion are apt to forsake civilization and morals, becoming like beasts that bite and devour one another and seek to destroy every chain of restraint that law and society may feel necessary on behavior.” [7] Over and over in the 20th Century, in Soviet Russia, in Nazi Germany, in Maoist China, in Cambodia and North Korea, we have seen the cruelty and violence into which purely atheistic regimes can descend. Only a politics of love can avoid the recurrence of this kind of prideful violence in Western culture today.

Freedom of Religion

Like nearly every early Enlightenment thinker, Montesquieu defends religious freedom. In his view, penal laws ought to be avoided with respect to religious belief, and the fear associated with the possibility of punishment is not conducive to religious freedom and progress. In particular, Montesquieu opposed the use of law for religious persecution, such as had been found in the case of the Spanish Inquisition. In what I think one of the most moving passages of theSpirit of the Laws, Montesquieu reprints at length a letter from a Jew who was put to death by the Inquisition.  In the letter, this unknown Jew makes a point that in this kind of behavior, Christians were not behaving as their founder, Christ, would have behaved and urged them to behave. [8]

Establishment and Tolerance

Implicit in the arguments that Montesquieu advances is the underlying idea that religious belief cannot be compelled, and even if established, as it was in France and England, other views should be tolerated by the dominant group and their leaders. In the case of France, this meant to Montesquieu that Protestantism should be tolerated even though Catholicism is established. In England, it would mean that Catholicism should be tolerated even if Protestantism is established.

Some readers misread Montesquieu as having no religious preferences, thinking them all equally false. [9] I think that the foregoing discussion shows that this view of his work is mistaken. There can be no doubt that Montesquieu prefers Christianity. However, his views on religion, and his goal as a law-giver and rationalizer compel him to the belief that religious toleration is required from the state.

In the Europe of Montesquieu’s day, Christianity was the dominant religion. In southern Europe, the Roman Catholic Church was dominant. In northern Europe, the Protestant faith had become increasingly dominant. The issue of religious freedom and tolerance was substantially between these two sects and Judaism, which was often persecuted by both. Today, what scholars and writers sometimes call “secular humanism” is the dominant view by many elites in Europe and America, and their tendency is to be hostile to Christian faith in all its forms, since it is the dominant faith in their nations. [10] The call for religious tolerance is most necessary to be heard today by secular elites.

Separation of Church and State

Although Montesquieu is not generally considered important in the formation of the uniquely American doctrine of separation of the church and state, his Spirit of the Laws made an important contribution to developing a way of thinking that encourages such a separation.  In a section called, “Of Laws in Relation to the Order of Things Which They Determine” Montesquieu establishes a principle that “We ought not to decide by divine laws what should be decided by human laws; nor determine by human laws what should be determined by divine law.” [11]

Implicit in this statement is the view that secular society should not legislate on religious matters nor should religious groups be given authority in secular matters. This is for the protection of both parties. Secular law is by its nature subject to change as society changes, while religious laws are permanent. Human laws govern circumstances that are always changing, with the result that many laws that are passed by legislatures and promulgated by the courts are likely to change. We see here a progressive view of society as often in a state of flux, requiring constant adaptation by the magistrate. If you remember the blog on Marcus Aurelius, one of the frequent recognitions of those who are actually in politics is a realization of the inevitability of change. Those who speculate can, like Plato, speculate on creating a perfect, static polity. Those who long bear the burden of magistracy, know better.

Conclusion

Leaving Montesquieu, like leaving Burke, is like leaving an old and dear friend. There is much out of date in his thinking, but there is also much of eternal relevance. In these two short blogs, I have been unable but to scratch the surface of his wisdom. One area I did not have time to cover is the area of taxation and budgeting constraints. One characteristic of a wise and prudent government is the ability to live within a reasonable budget.

The ability to tax is the most powerful element of governmental power, and one susceptible of misuse. A government that is imprudent with its finances is destined for trouble. The French Revolution was brought about by the inability and unwillingness of the Bourbon rulers to discipline their spending and the blatant unfairness of the French tax system. This is a point that should not be lost on contemporary policy makers.

Finally, this blog brings us to the founding of the United States of America and the Constitution. This summer, my intention is to make a slow journey through the Articles of Confederation, the Constitution, and the Bill of Rights. For most of the summer, the only external source that will be referenced is the Federalist Papers, and the weekly posts will be shorter.

As mentioned from the beginning of these blogs, the Founders were well-educated in the Judeo-Christian, Greco-Roman, Medieval Catholic, Protestant, and Enlightenment writers. At a moment in history, the influence of all the writers we have looked at thus far, from Plato to Burke, came together in a moment of synthesis as our system of government was formed. That formation is not the end of the story, but it the original defining moment in the story of the development of the government we enjoy today. It is worth spending time understanding the structure of our government and the initial modifications that were made in order to achieve ratification of the document. For now, we have come to a place to rest a bit as summer begins.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, Volume 38 “Montesquieu and Rousseau” Mortimer Adler, ed. (Chicago, Ill: Encyclopedia Britannica, 1952).

[2] Id, 197.

[3] Id, 201.

[4] Id, 200.

[5] Id, 201

[6] Id.

[7] Id, 200

[8] Id, at 212-213.

[9] I read several such views in preparing this blog. It is not really possible to read Spirit of the Laws without Enlightenment prejudices and not conclude that while Montesquieu has doctrinal doubts about all that the Roman Catholic Church teaches, and is suspicious of, and hostile to, all forms of extremism, he is sympathetic to Christianity and supportive of its generally positive impact on society.

[10] Interestingly, in France in particular, it is the Muslim faith that suffers the most opposition from the secular state, which has seen it possible and thought it wise to prohibit the Burka (a women’s dress) and to prohibit the wearing of certain religious garb, which constitutes a suppression of Islam. In America, an increasingly hostile secular left has taken to suggesting that Christians should not be allowed in politics, etc.

[11] Id, 214.

Montesquieu: Our Need for a Virtuous and Moderate State

Baron de Montesquieu is one of the most interesting thinkers who influenced the founders of our nation. He was highly thought of by both Jefferson and Madison, among others. Through Madison and others, his work influenced the final form of our Constitution. He also represents an important writer of the Enlightenment, and perhaps the most important and representative continental political philosopher. From the perspective of these blogs, reading Montesquieu is important for another reason: He, like Rousseau, represents a synthesis of the emerging modern and Classical and Renaissance ways of thinking. [1] He is both representative of a new way of thinking and, at the same time, a continuation of a way of thinking characteristic of Western political thought from Greece to Rousseau—something needed in our day as well.

Montesquieu, whose full name was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, was born January 19, 1689, one year after the Glorious Revolution in England and 100 years before the beginning of the French Revolution. [2] He was from a noble family, and inherited a large estate, which he managed for a time. He was educated as a lawyer, and was for a time the chief administrative and judicial officer of Bordeaux, a position that allowed him ample time to reflect upon the law. Like many Enlightenment thinkers, Montesquieu was interested in natural science.

In 1724, Montesquieu published a successful political novel, “Parisian Letters.” This event changed his life, as he transitioned from a magistrate to being an intellectual figure. Montesquieu travelled widely in Europe, and while visiting Great Britain became an admirer of the British parliamentary system. In 1731, he began his masterpiece, the “Spirit of the Laws,” which he completed in 1748. Both the Parisian Letters and Spirit of the Laws are political and social commentaries and both defend freedom against despotism.

Spirit of the Laws

Spirit of the Laws is without doubt one of the most important and influential books of political philosophy in Western history. [3] In it, Montesquieu systematically sets out his legal philosophy in a work filled with references to laws and legal systems of history. The book is dense with examples from Greek, Roman, French, British, and other legal systems. He attempts, as he says at the beginning, to not follow his prejudices, but the “nature of things,” following the inner connections between laws that connects a law as a singular human achievement. [4]

Montesquieu as a Natural Law Thinker. There is a good deal of debate over whether and to what degree Montesquieu is a Natural Law thinker. The mere appeal to law as “an inquiry into the nature of things” indicates that, in some way, he is. Montesquieu, however, rejected Hobbes dreary form of Natural Law and his “war of all against all” theory. Instead, Montesquieu sees human beings as essentially social, desirous of human interaction and society. The growth of law and society is, therefore, a natural development of human nature and potential. This nature differs from people to people, climate to climate, practical situation to practical situation. Nevertheless, “Before laws were made there were relations of possible justice.” [5] Before the emergence of specific, positive laws of a people, there are laws of nature that take their content from the “fame and nature” of the human person. [6]

Positive Law according to Montesquieu. Every concrete human society forms specific, positive laws to organize social life and provide a legal structure for measuring out justice and resolving disputes. This positive law, though based upon fundamental notions of justice, varies according to the conditions of the people who organize a legal system and create its laws. Geographic, climatological, economic, social, and other factors function in such a way that no two societies will have the same positive laws nor do differences between them indicate than any particular system is unjust. Thus, … “the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favor it is established.” [7]

Forms of Governments. Just as the laws of a particular society will differ from other societies, there are different forms of government by which societies are organized. For Montesquieu, the forms are basically three: Monarchies, Republican Democracies, and Despotisms. Throughout his works, Montesquieu exhibits a dislike of despotism, which is the rule of one person according to his or her own whims. Monarchies are the rule of one, but this rule is moderated by the nobility and citizens of the nation, each with their own sphere of liberty and influence. Republics are representative governments, governments in which the people chose representatives. [8] Montesquieu goes into great detail in describing the characteristics of each form of government. For the purpose of this essay, we will concentrate on that form most important for Americans: representative, democratic, republican government.

Principles of Republican Government. In a republican form of government, either the people as a whole or, more frequently, their elected representatives possess the supreme power to legislate and organize the government. In order to maintain this order, virtue is required and virtue is the fundamental principle of republican government, for “in a popular state, one more spring is necessary, namely virtue.” [9] Obviously, if virtue is central, then education and character formation are of supreme importance for maintaining a republican form of government, where the whole power of education is required to form a citizen capable of self-rule. [10]

Here it is that our educational system most clearly fails. It is not enough that children learn facts and figures, citizens must love the nation in order for a republic to sustain itself:

This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues, for they are nothing more than that preference itself. This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it. [11]

It is a defect in contemporary education that it concentrates to an unhealthy degree upon the defects of our democracy and fails to educate our youth in its fundamental principles, historic successes, and gradual improvements. This is true in public and many private schools alike. It is particularly present in those universities that form future leaders. Too often young people leave institutions of higher learning alienated from our republican institutions and unable and unwilling to appreciate its achievements. This is an area in which a healthy balance needs to be restored.

Goal of Legislation in Republican Democracies. In order to create a coherent body of law, there must be an animating principle of legislation. In the case of republican democracies, the animating principle must be the achievement of greater equality. In the case of 16th Century France, this liberty could only be achieved by restricting the wealth and power of the nobility and king. [12] In contemporary America, the use of antitrust laws, incentives for employee ownership of corporations and private businesses, and the removal of barriers that render small businesses unable to compete, and inheritance taxes are just a few of the ways that economic liberty and equality can be maintained. As to social liberties, in a well-formed republic certain civil rights are maintained to allow the full exercise by citizens of their gifts and talents.

This principle of equality is not, however, absolute in republics. There can be an excess of equality. “The principle of democracy is corrupted not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those he has chosen to command him.” [13] True equality is not some abstract “extreme equality” that ignores differences of attainment, gifts, and effort. [14]

Moderation and Balance of Powers. Moderation is essential for liberty to exist. “Political liberty is to be found only in moderate governments.” [15] Unfortunately, moderation is difficult to achieve because it is in the nature of human leaders to press their quest for power as far as possible. In one of his most perspicuous passages, Montesquieu notes that:

Whenever we observe in any age or government the different bodies of state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments as an evident mark of their corruption. Through a fatality inseparable from human nature, moderation in great men is rare: and it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior class of people, it is less difficult, perhaps to find men virtuous than extremely prudent. The human mind feels such an exquisite pleasure in the exercise of power: even those who are lovers of virtue are so excessively fond of themselves that there is no man so happy as not still to have reason to doubt his honest intentions;…. [16]

Based upon this observation concerning human nature, it is easy to see that it is inherently dangerous for the legislative, judicial and executive functions to be combined:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . . Again, there is no liberty if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control: for the judge would then be the legislature. Were it joined with the executive power the judge might behave with violence and oppression.”[17]

The solution is to separate and make these functions both independent and mutually inter-dependent, so that one power cannot overcome the others. This pattern of thinking was influential in the way in which the U.S. Constitution separates and divides power among the legislative, executive, and judicial branches of government.

In my view, the greatest danger to our system of government relates to the way in which the growth of a bureaucratic state with immense administrative agencies has created a fourth center of government that often acts as legislator (issuing regulations), judge (interpreting and enforcing regulations) and executive (administering and issuing orders under regulations). The balance of powers upon which republican democracy rely are largely absent in dealing with this vast, only partially accountable bureaucracy. When we get to De Tocqueville and his Democracy in America, we will take a look at the first person to perceive the threat of bureaucracy to democratic government.

Conclusion

As mentioned at the beginning, Montesquieu was an important thinker for the writers of the United States Constitution. He was quoted more frequently than any other writer by the founders as they explained what they had done and why. The Spirit of the Laws is not just important for the form of the Constitution, for the founders also understood his views on war and peace, on taxation, and on a number of other issues that impacted the form of the document. His views and concerns are of value even today—and it is too bad that more of our leaders do not read and ponder his thought.

I had intended to spend only one week on Montesquieu, but next week I intend to write a shorter blog dealing with religion and the state.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] As I have observed in prior writings, the term post-modern is really a place-holder as a name for an emerging era in human history. All “post-modern” means is “after-modern.” The term does not describe a new and emerging world view. Many prominent “post-modern” thinkers seem to me to be really “end game-modernity,” that is following modernity to its logical, and ultimately destructive, conclusion. Having attempted to construct human life and understanding on a fully naturalistic, materialistic, hyper-individualistic model, since Nietzsche modernity has been degenerating into nihilism. In some respects, I think of modernity as a kind of human adolescence: Having discovered its full range of intellectual, scientific, and technological powers, modernity rebelled against tradition and often common sense. The next era may be something like the “mature-era,” as a post-adolescent modernity begins to recover a deeper sense of community with the past.

[2] This brief review of Montesquieu’s life and work is dependent upon, among other works, “Baron de Montesquieu, Charles-Louis de Secondat,” Stanford Encyclopedia of Philosophy (downloaded May 17, 2021).

[3] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, volume 38 “Montesquieu and Rousseau” Mortimer Adler Ed. (Chicago, I’ll: Encyclopedia Britannica, 1952).

[4] Id, at xxi, 1.

[5] Id.

[6] Id, at 2.

[7] Id, at 3.

[8] Id, at 4.

[9] Id, at 9.

[10] Id, at15.

[11] Id.

[12] Id, at 19-20.

[13] Id, at 51.

[14] Id, at 52.

[15] Id, at 69.

[16] Id, at 250.

[17] Id, at 70.

Burke 3: Response to the French Revolution

This is the last of my blogs on Edmund Burke (for the time being). I feel like it is a sad goodbye to a good and respected friend. By the time of the French Revolution, Burke (1729-1797) was close to the end of his public career and life. In this last years, he conducted a one-person crusade against the French Revolution and those in England who wished to emulate the excesses of the French. In particular, Burke wrote against the lack of respect for past human achievements, disregard of human rights, lack of respect for persons, violence, foolish self-seeking, and revolt against religion that too often animated French revolutionaries. In so doing, he finalized his views on politics in a way that has been profoundly useful and important in subsequent times, including our own.

French Revolution (1789-1799)

In August 1789, a “Declaration of the Rights of Man and of the Citizen” was adopted by the National Assembly of France. Historically the national assembly of France (the “Estate General”) was composed of representatives of all the citizenry of France, which were divided into three estates, the nobility, the clergy, and the remainder of the people. As a practical matter, average French-persons were massively underrepresented. [1]  In 1789, the first Estate General since 1614, a gathering of all three of the Estates of France, was called by the French king, Louis XVI, to address a financial crisis into which France had been plunged by financial mismanagement, foreign adventures, domestic overspending, and support for the American Revolution. [2]

In June 1789, the Third Estate  alone declared itself the “National Assembly” and events began taking a revolutionary turn. The ancient privileges of the crown, the nobility, and the clergy of France were now certain to be modified, or as matters turned out, eliminated altogether. In the end, the French Revolution was a massive, violent failure, ending in the dictatorship of Napoleon Bonaparte.

The French revolutionary experiment began optimistically. The king and nobility knew that there needed to be, would have to be, substantial modifications of their system of government for the nation to recover from the disaster into which mismanagement had led it. Many of the nobility, some of whom would later be executed during the Reign of Terror (1793-1795), agreed and supported needed change. Many of the more moderate adherents of the revolution desired to model the French Revolution after the American Revolution, which had established a stable constitutional state. Others desired to see a system of limited monarchy, similar to that in Great Britain. However, there were serious differences between both the British Glorious Revolution of 1688 and the American Revolution of 1776. These differences ultimately caused the French Revolution to take a tragic turn. [3]

The leadership of the British and American revolution, though impacted by the Enlightenment, were substantially unaffected by the anti-religious and radical sentiment that emboldened the French Revolution. In the case of Britain, the Glorious Revolution was intended to preserve and secure the rights of the people and Protestant character of the state. As to the American revolution, protection of religious freedom generally was one goal of the revolution. In both the cases, the propertied classes, nobility (in England), and business interests were represented and had influence over events. Finally, the moderate political views of British thinkers guided the Glorious and American Revolutions, whereas more radical ideas of Rousseau, Voltaire, and others guided the French Revolution.

Burke’s Response

A year or so after the French Revolution began, Burke published his “Reflections on the Revolution in France” [4]This was before the reign of Terror and the worst excesses of the revolution, which Burke foresaw and partially wrote his response to the way in which the French were managing their revolution to avoid. By the end of the century, Burke’s views were seen as both accurate and prophetic.

Failure to Keep Public Faith. In Burke’s view, the French Revolution resulted from the various “estates,” that is the people that made up all the citizens of France, failing to keep faith with one another in matters of importance. In so doing, the government of France reached a point of revolution:

The constituted parts of a state are obligated to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with the separate communities: otherwise competence and power would soon be confounded, and no law would be left but the will of a prevailing power. [5]

In Burke’s view, the government, the nobility, the clergy, and the people owed reciprocal duties to one another. It was, for example, a breach of public trust for the nobility, clergy, and crown to saddle the Third Estate with a tax burden they could not meet and condemn the majority of the people to poverty. This was not just a violation of the social compact (though it was), it was also a violation of natural law and exposed France to revolution. In the end, all that was left was power, which in the case of the French fell into incompetent, corrupt, radical and violent hands. [6] This duty was a duty both of those whose mismanagement provoked the revolution and those who were conducting it.

A Fixed Rule of Change. According to Burke, in the case of France, there was no “fixed rule of change,” that is to say there was no way the Third Estate could effectively express their grievances and effect a peaceful change of government. By the time of the Glorious Revolution in England, the British people had endured the Cromwellian Revolution, the Restoration of the Stewart Dynasty, the substitution of James I for Charles II, and the Glorious Revolution itself. In the process, Parliament had both gained power and sustained social order. By 1688, no one wanted to return to the violence of prior periods, and so an orderly change in the state was accomplished. During the American Revolution, there was a strong desire to maintain the historic rights of British citizens for the American people. There was no such order available in the French Revolution. The result was that the Third Estate grabbed all power, and all the institutions of society were subjected to radical, violent, and in the end, failed change.

A Sense of Inheritance. In what I take to be one of the most important and pertinent arguments of Reflections on the Revolution in France, Burke argues that the British and American revolutions could be distinguished from that in France by the absence of a sense of continuity and inheritance:

The Revolution (of 1688) was made to preserve our ancient indisputable laws and liberties, and that ancient constitution of government which is our only security for law and liberty. If you are desirous of knowing the spirit of our constitution, and the policy that predominated in that great period which secured it to this hour, pray look in our histories, in our records, in our acts of Parliament and journals of Parliament…. We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. [7]

This notion that the institutions of a stable government that protects the rights and property of its citizens are “an inheritance” is an important aspect of Burke’s organic view of government. He believed that a wise constitutional order works after the “order of nature,” like a parent bequeathing an inheritance to a child. Thus, a sound constitutional order is an inheritance from those who established that order. This inheritance is to be received, built upon and improved by subsequent generations.  Burke’s notion of an “order of nature” is consonant with the view that human history is a kind of evolving process, in which each generation receives the benefits of civilization and passes that inheritance on in either better or worse, but certainly different, condition that it was received. [8]

Failure of the French to Build on Historical Foundations. In his emphasis on “inheritance” Burke reveals his sense of stewardship of the past, and the notion that the past, both good and bad, limits and directs the activities of a wise statesperson. In the case of France, Burke was well aware that the French Constitution and social order was in disorder. Nevertheless, there was an order, and that order was capable of being  peacefully altered to protect the interests of the people of France. In order to do this, Burke felt it would have been wise to build on the existing foundations rather than tear apart the social order in its entirety. In failing to do this, the National Assembly had been guilty of great foolishness and unleashed a great suffering on the French people. [9] History has generally judged Burke correct in his views. [10]

Reliance on “Metaphysical Speculation” as Opposed to Practical Experience. Underlying Burke’s critique of the French Revolution is his pragmatism and instinctive distrust of what he termed “metaphysical speculations,” which in the case of the French Revolution involved a dramatic shift in society led by people with only an abstract idea of where they were leading the state based upon the speculation of social theorists, like Rousseau with little or no experience in government and politics. Burke spends a great deal of time in Reflections on the Revolution in France outlining the lack of experience, wisdom, and attainments in those who made up the French National Assembly of Revolutionary France. In his view, the clergy and nobility chosen were not of the best leadership, and the assembly was too much led by lawyers with little or no magisterial experience. [11]

In Burke’s view, legislative bodies should be made up of persons of an established position in life, attainments, property, well-educated and with fixed experience and habits that would enable them to serve the state and its citizens well. This is an aspect of Burke’s thought that could be important to our own day. We do have age requirements for public office in most areas, but qualifications are a different matter. As a matter of choice, voters need to ponder the life experience and qualifications that they feel public servants at every level should have. I would only state that political experience may not be the only relevant kind of experience to be considered as necessary.

Opposition to Religion and Historic Morals. Finally, Burke saw the anti-religious and sometimes immoral foundation of the radical French Revolution as symptomatic of its rejection of a kind of humility that sees human institutions as subject to a higher power, which created and sustains the universe, and therefore, at least indirectly human institutions of all kinds. This humility also encourages leaders to see themselves as stewards of the past and the public trust.  Burke saw that social institutions must themselves rest upon the foundation of a sound morality, for everything cannot be made subject to law.

In one of his most impassioned passages, Burke exclaims to the reader:

There is no qualification for government but virtue and wisdom, actual or presumptive. Wherever they are actually found, they have, in whatever state, condition, trade, the passport of Heaven to human place and honor. Woe to the country which would madly and impiously reject the service of the talents, virtues, civil, military, or religious, that are given to grace and to serve it; it would condemn to obscurity everything formed to diffuse the luxury and glory around a state. Woe to the country too, that, passing into the opposite extreme, considers a low education, a mean, contracted view of things, a sordid mercenary occupation as preferable title to command. [12]

We live in a time in which an Enlightenment kind of reasoning is all too common, and rejecting religious faith and morals is a commonplace. Burke believes, and warns us against rejecting the role of religious faith in society and politics. Unlike Burke’s day in England, this warning is against the a priori rejection of any religious group. It is also a call to religious groups to think long and carefully about the service they may make by restraining their energies to a focus on the spiritual and moral condition of society. Woe to the society that rejects the input of religious groups on matters of public importance. Woe also to a religious group that does not undertake its mission in public life without a spirit of service and self-sacrifice.

Conclusion

At this point, we must leave Burke for the time being. I can only urge readers to consider reading the primary source for themselves. His thought is often so complex, and so embedded in a particular historical reality that it is difficult to follow, much less synthesize for a casual reader. His morally-informed pragmatism, his respect for history and for tradition, his belief in natural law embedded in common law, and his distrust of abstract idealism in politics seem to me to be the basic foundations of his thought to be remembered and internalized by interested readers.

Copyright, G. Christopher Scruggs, All Rights Reserved 2021

[1] Historically, franc was made up of three estates, each of which were represented within the Estates‐General. 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.

[2] Under the existing French taxation system, the clergy and the nobility did not pay their fair share of taxes, resulting in a huge burden of taxation falling on the Third Estate, which lacked the economic resources to support the spending of the government of Louis XVI. The luxurious lifestyle of the Bourbon kings, their many wars with England, and their support of the American Revolution, all combined to bankrupt the state.

[3] This is not the place for me to give a full history of the French Revolution or the cultural differences between the Glorious Revolution of 16888 and the American Revolution of 1776. However, in my mind, these differences need to be studied and internalized by contemporary Americans. The current brand of revolutionary ideology being promoted publicly bears an unfortunate resemblance to the French Revolution. Those who wish our nation to adapt to its current issues, need to study the French Revolution and the events leading up to it.

[4] The quotations from this work and from other works of Burke upon which this blog is based are found in Edmund Burke: Selected Writings and Speeches Peter J. Stanis, ed. (Washington, DC: Regency Publications, 1963). Unless otherwise noted, all quotations are from this edition of Burke’s thought.

[5] Id, at 522.

[6] This might serve as a warning to our leaders. There is no doubt but that the spending habits of the US government have resulted in an enormous debt burden that constitutes a failure of the government to keep faith with its people.

[7] Id, at 527. I have added the parenthetical reminder of the date for readers unfamiliar with Burke.

[8] I cannot give this aspect of Burke’s thought all the consideration it deserves, but will return to it later in these blogs as we begin to examine the impact of modern physics and the view of reality that has emerged in what has become known as “process philosophy” on the issue of our current difficulties. Post-modern physics is sympathetic to a vision of reality as an evolving process, with each future state incorporating the past in a process of continuity and change. This view of reality was given prominence by Alfred North Whitehead in his great work, Process and Reality: An Essay in Cosmology (New York, Free Press, 1929). At this point, it is enough to introduce the notion that the citizens of a state inherit a set of existing conditions as an “inheritance,” representing something like an “initial state” and will pass on this “inheritance” with such modifications as they may wisely or foolishly make. The views of Whitehead and his followers are sometimes referred to as a kind of “constructive post-modernism,” that can in a positive way incorporate post-modern thinking. Many weeks from now, we will look at Whitehead as a political thinker.

[9] Id, at 530.

[10] Burke’s reputation as a stateman and thinker were very much enhanced by the fact that as early as 1789 he was able to predict the violent and destructive of the French Revolution and its fundamental causes.

[11] See, Burke, at 554ff.

[12] Id, at 540.

Burke 2: Freedom of Religion

Last week, I introduced readers to Edmund Burke (1729-1797), a prolific writer, member of Parliament, and important political philosopher of the 18th century. His influence is still felt today, as he is recognized as a founder of one school of contemporary political conservatism.

Burke was born in Dublin Ireland. His father was a lawyer and member of the Church of England; his mother was Roman Catholic. In his youth, he emigrated to England to prepare for a career in law. Although he studied law for the rest of his life, much to the chagrin of his father, he found law boring as a profession. Instead, he became a writer, editor, and political assistant to important British politicians. Eventually, he became a member of Parliament. In this capacity, he was active in a number of issues of importance to us today.

In the prior blog, we looked at Burke’s views on the Revolutionary War, and his critique of British policy in that conflict. This week, we are looking at his views on religious freedom, as expressed in his response to the treatment of the Irish Catholics by the British government.  Burke was raised an Anglican, as was his father, but he deeply felt the injustice of British policy towards Ireland and Irish Catholics. In addition, he was educated with and by Quakers and, of course, became familiar with the ideals of Quakerism, which he viewed sympathetically.

As a result of these experiences, Burke was familiar with the Catholic/Anglican/Free Church divisions of his day. He was born and lived under the oppression of Irish Catholics by the Protestant government of Great Britain. During his political career, opponents occasionally tried to use his Irish heritage and religious background against him, but it seems that he was actually what he professed to be: a loyal traditional member of the Church of England, but sympathetic to other Christian traditions.

British Treatment of Ireland

In the period of the victory of Protestantism in England, and especially the suppression of an uprising in Ireland, Parliament passed various penal measures designed to limit the power of the Roman Catholic Church in Great Britain, and especially in Ireland, which was a majority Roman Catholic nation. These “The Penal Laws” were passed, despite British promises that religious freedom would be granted for the Roman Catholics of Ireland. The basic excuse for the Penal Laws was fear of rebellion, but economic and other considerations also played a role.

The Penal Laws provided fines and imprisonment for participation in Catholic worship and severe penalties, including death, for Catholic priests who practiced their ministry in Britain or Ireland. Other laws barred Catholics from voting, holding public office, serving in the military, owning land, traveling abroad for religious education, bringing religious items from Rome into Britain, publishing or selling Catholic teaching aids, teaching the Roman Catholic faith, or marrying non-Catholics. [1] Other laws required children of Anglican/Catholic marriages to be brought up in the Church of England.

These laws, taken as a whole, amounted to a complete system of religious persecution of Roman Catholics and of the Roman Church. [2] The full story of these laws is complex and outside of the scope of these blogs, but is a testimony to the complexity of Protestant/Catholic coexistence in the centuries following the Reformation. It is also a testimony to the way in which the Byzantine politics of Europe during the period caused massive human suffering.

Burke and the Penal Laws

From the beginning, Burke opposed the Penal Laws. His political machinations were the subject of criticism from both those who felt his views too radical and too conservative. Those who favored the laws and those who favored their immediate and unconditional replacement both criticized him from time to time. Nevertheless, Burke charted a legislative course designed to eliminate the penal laws with as little social unrest and disturbance to the public peace as possible.

Burke thought that the situation in Ireland was immoral, debasing, and likely to provoke revolt. He urged that the Penal Laws be changed in increments or abandoned all together. In the process of this attempt, he refined his political views, and especially his views on the natural rights of human persons. He championed religious liberty and argued against slavery and some of the unjust punishments of his day. Deeply impacted by the events of the French Revolution, with its violence and murder, Burke took a cautious view of what might be done for Ireland. Nevertheless, he continued to work for the elimination of legal persecution of the Irish Catholic people.

Natural Law and the Penal Laws

The situation involving the Penal Laws forced Burke to consider the meaning of Natural Law theory for the religious situation of the Irish people. Burke was a classic Natural Law thinker. For Burke, human nature included fundamental moral values that form the basis of political and moral thinking. These fundamental principles do not generally command a particular political response to a concrete human situation but do provide a tacit ground or fundamental approach to human problems.

For Burke, there are two fundamental principles that underlie all government and law: equity and utility. In setting out these principles he says:

In reality, there are two, and only two foundations of law, and they are both of them conditions without which nothing can give it any force: I mean justice and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty calls the mother of justice. All human laws are properly only declaratory; they may later the mode and application, but have no power over the substance of original justice. The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same manner with, and derived directly from, our rational nature: for any other utility may be the utility of a robber, but cannot be that of a citizen….” [3]

Here Burke sets out the basic principles of his theory of natural law. There is a basic human desire and sense of equity, or equal treatment, out of which positive law derives. This desire for equal and fair treatment is the foundation of the human capacity for justice. The ideal of justice, however, has to be implemented in a way that is useful to a concrete human community. In the process of implementation, it is the duty of the legislator, executive, and judge to promote the general public good in the most rational and efficient way possible and not from any personal or prejudicial, short-term notions of utility, which would be beneath any good statesman/woman acting in the public interest. Finally, Burke goes on to say, there can be no justice unless the laws are implemented fairly and consistently among persons. [4]

As applied to the situation in Ireland, Burke felt that the Penal Laws failed on both counts. By disenfranchising a large number of people, indeed the majority of the people of Ireland, leaving them at the mercy of the Protestant minority, the British Parliament had made even a semblance of justice impossible. Equitable treatment is impossible under these circumstances. In addition, the Penal Laws were “inefficacious,” that is they were not reasonably likely to avoid the situation they were designed to prevent. [5]

Laws and the Public Good

Burke was of the view that Natural Law requires that laws be designed and enacted for the Public Good. That is to say, a valid law intends by its design to address some danger to the public good and to create a good not present or sustain a good that already exists. [6] Many laws intend to promote the public good, but either fail in their object or imperfectly attain the good intended. This is a matter of concern and correction. However, laws that were never intended to promote a public good are simply not law at all, however much the state might try to enforce them. [7]

In Burke’s view, the Penal Laws were legislation of the second type. These laws were prejudicial to the entire community, to the Irish Catholic majority who were persecuted by these laws and to the Protestant citizens of Ireland and Great Britain whose morals and character might be corrupted by them. The vast majority of the Irish people were Roman Catholic. The Penal Laws were disadvantageous to almost all the citizens of Ireland. A law injurious to the vast majority of citizens of a commonwealth could not possibly be equitable, just or useful.

Religious Freedom and the Penal Laws

The Peal laws were intended to limit the free exercise of the Catholic faith. For Burke, this was a capricious and ignoble scheme. The Catholic Faith had existed in Ireland and Great Britain since the most ancient times. It had once bee the official religion of the realm. I thinking about the Peal Laws in this regard, Burke says:

It is proper to recollect that this religion, which is so persecuted in its members, is the old religion of the country, and once the established religion of the state—the very same that had for centuries received the countenance and sanction of the laws, and from which it would at one time have been highly peal to have dissented. In proportion as mankind has become enlightened, the idea of religious persecution, under any circumstances has been almost universally exploded by all good thinking mem. [8]

Here we see another facet of Burke’s mode of reasoning at work. The Catholic faith had been for some centuries previous, the established religion of the realm. Only at the time of Henry VIII had the Protestant faith been introduced in the land. Its value to the realm was no new introduction. History supported the claim that the Roman Catholic Faith was due freedom of expression. For the British people to introduce this innovation at this time was both historically foolish and morally indefensible.

History and the legal tradition of Britain had great importance to Burke. He saw history as an unfolding process, with the law evolving in its understanding of common morality and wise policy. not just common morality, but long tradition and historical understanding supported the rights of the Irish to their historic rights. Under these circumstances, it could not be a wise policy to fail to grant free exercise of religion to the Roman Catholic people of Ireland.

As a matter of sound policy, the Penal Laws were doomed to failure for another, strictly moral and spiritual, reason: Matters of faith are private, and cannot to a religious view cannot be successfully commanded:

Religion, to have any force on a man’s understanding, indeed to exist at all, must be supposed paramount to laws and independent for its substance upon any human institution—else it would be the absurdist thing in the world, an acknowledged cheat. Religion, therefore, is not believed because the laws have established it, but it is established because the leading part of the community have previously believed it to be true. [9]

Burke’s warning is one we ca hear today: Religion and morals are not creations of the state. Religious belief and moral commitment prior to the state and their true establishment in the minds of people cannot be forced. The state can and should create a free space for private persons to form, follow, and express their religious views.

Conclusion

Burke’s views concerning religion and religious freedom are an important part of his legacy. As we shall see in the next installment of these blogs, his reaction to the excesses and irrationality of the French Revolution were partially based upon his religious views ad commitment to religious toleration. Toleration involves another virtue of equal importance: patience. The genius of the English Constitution was found it its gradual emergence over centuries. Burke did not think that the improvement of human institutions could be done wisely and rapidly. Patience with conflicting views, and toleration of those with whom we disagree, are required for a free people to act wisely in complex and difficult situations. As in the situation with the Irish, sometimes states must tolerate a degree of social risk in the search for a just and equitable society.

Next week, we will look at the results of radical intolerance ad Burke’s views of the French Revolution.

 Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See. Britannica Online, “Penal Laws: British and Irish history” www.britannica.com/event/Penal-Laws, downloaded May 5, 20212 and Library Ireland, “State of Ireland during the 18th Century” at https://www.libraryireland.com/articles/Eighteenth-Century-Ireland/Irish-Penal-Laws.php(downloaded May 5, 2021).

[2] Peter J. Stanis, ed., Edmund Burke: Selected Writings and Speeches (Washington, DC: Regency Publications, 1963), 254. Unless otherwise noted, all quotations are from this edition of Burke’s thought.

[3] Id, at 258.

[4] Id.

[5] Id, at 254-255.

[6] Id, at 256-7.

[7] Id.

[8] Id, at 266.

[9] Id, at 268.