All posts by Chris Scruggs

Chris Scruggs is a retired Presbyterian pastor and attorney. Chris is the author of three books on Christian life, wisdom, and discipleship and is working on a fourth. He authors the blog "Path of Life."

John Stuart Mill 2: Freedom to be Yourself

By now, it is clear I am a fan of John Stuart Mill and appreciate both his thought and character. I hope the minor critique contained in this week’s blog will not be seen in any way as diminishing my respect. The history of ideas is an unfolding process, and the human experience is one of continual unfolding. This unfolding of human understanding means that every contribution, even those we may think mistaken, is a part of getting the human race where it is today.

Last week’s blog dealt with the beginning of On Liberty. [1] Mill begins his work by introducing his theme and its importance. He defends the role of freedom of thought, speech, and action as necessary for a free society and for the achievement of practical wisdom in government. In Chapters 3, 4, and 5 of On Liberty are devoted to the importance of individuality to human well-being, the limitations that ought to be put on the authority for society to limit human freedom, and certain applications of the doctrines.

In these chapters, Mill develops a common Enlightenment notion of the nature and limits of human freedom. In so doing, Mill also betrays a typical 19th century “human atomism,” that sees society made up of isolated individuals, just as Newtonian science saw the material world as made up of atoms. Based upon this world-view, Mill is positively concerned to create a zone of freedom within which human beings can be free to develop themselves as autonomous individuals. [2] We shall see how successful he might be in this endeavor.

The Utilitarian Principle, Liberty, and the Individual

Mill begins his defense of Individuality with a clear statement of the approach of a Utilitarian to the subject:

Such being the reasons which make it imperative that human beings should be free to form opinions, and to express their opinions without reserve; and such the baneful consequences to the intellectual, and through that to the moral nature of man, unless this liberty is either conceded, or asserted in spite of prohibition; let us next examine whether the same reasons do not require that men should be free to act upon their opinions—to carry these out in their lives, without hindrance, either physical or moral, from their fellow-men, so long as it is at their own risk and peril. This last proviso is of course indispensable. No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. [3]

The first two chapters of Mill’s work set out the necessity for freedom of thought and opinions as well as speech. In the third section of the treatise, he turns his attention to the extent to which human beings should be free to act upon their ideas. There are two principles which Mill defends in this section of On Liberty.

  • First, people should be free to form and express hinderances without restriction.
  • Second, however, the right to express opinions and act upon them is only absolute when they are formed and acted upon at their “risk and peril” and without significant risk and peril to others.

Actions that impact others, can be restricted legitimately. In addition, where an opinion is being voiced with the intention of instigating a “mischievous act,” it can be restricted. [4]

Mill was aware that all actions may be said to impact others, and in some small sense may do so. His point is that, where the negative impact on others is not significant, persons should be free to speak and act. However, where the speech or act might cause measurable, significant harm to others or society, the situation is not so clear. For example, freedom of thought, speech and action concerning a public event does not entitle one to blow up a public building filled with citizens. Nevertheless, where the potential harm to the public is not significant, freedom of thought, opinion, speech and action is to be protected by civil authorities.

In an earlier blog, I mentioned that utilitarian thought is an inevitable feature of public decision-making. Even under tyrannies, there are limits to the police power of the state and the social control of majorities. The decision to prohibit an opinion, restrict speech, or criminalize an action is subject to the prudential nature of those in government. Not every idea, opinion or act that the state thinks wrong-headed can or should be restricted. In this sense, utilitarian thought is an inevitable feature of government.

However, in contemporary society, freedom cannot be defended strictly upon utilitarian grounds because there are  always reasons why any opinion or act could be considered beneficial or harmful. A feature of contemporary America is increasing restrictions on the ability of people to voice unpopular opinions or act upon them. As Mill and others foresaw, in a democracy there is a constant danger that thought, opinion, and speech will be forced to conform to law and majority public opinion. In my view, this is where what I have called a “Politics of Love” comes into play. To value the other is to allow the other to be his or herself, form his or her opinions, voice them, and act upon them to the maximum extent possible, even when we disagree and where there is some risk in so doing.

Mill and Formation of the Individual

To say that “individuals” should be free to form, hold, voice and act upon their own opinions begs the question as to the nature of the individuals to whom this right may be said to apply. Mill does think that the freedom of which he speaks is a substitute for parental guidance and training of the young, for education, and for the proper formation of the mind and will of people. In speaking of tradition, Mill wisely remarks that:

No one would assert that people ought not to put into their mode of life, and into the conduct of their concerns, any impress whatever of their own judgment, or of their own individual character. On the other hand, it would be absurd to pretend that people ought to live as if nothing whatever had been known in the world before they came into it; as if experience had as yet done nothing towards showing that one mode of existence, or of conduct, is preferable to another. Nobody denies that people should be so taught and trained in youth, as to know and benefit by the ascertained results of human experience. But it is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way. [5]

In order for human civilization to exist and progress, every idea and thought, every notion of human good, every pragmatic test of right and wrong, wisdom and foolishness cannot be rediscovered and reinvented in every generation. Therefore, youth do need to be taught and formed so that they might live successfully and form their characters wisely when they have arrived at the age when their own individuality can and should be expressed.

This is an area in which our culture is vastly deficient and much of the mischievousness of the deficiency is built upon a misunderstanding of the kind of freedom to choose that is reasonable for people to have at various stages of life. If a politics of love is required to undergird the utilitarian notion of freedom of thought, opinion, speech and action, a “politics of wisdom” is needed to undergird these very same freedoms.

In the end, Mill believes that human beings need freedom in order to develop their inborn capacities. He compares what he believes to be “an early state of society,” where people needed the discipline and control of external restraints on their behavior, to the current time (which would be Great Britain of the 19th Century where such restraints are no longer needed).

Mill is particularly critical of Calvinism, with its extreme notion of the results of the Fall, as Luther would have put it, its notion of the “Bondage of the Will,” that renders human beings incapable of wise and good actions. In keeping with Mill’s general appreciation of human capacity for moral and aesthetic progress, he rejects the darker implications of Protestant theology. Mill’s notion is that there needs to be a blending of the Greek ideal of self-development and a Christian notion of self denial. [6]

For Mill, the self-denial he sees in Calvinism, results in a drab uniformity of human character. What is needed is a wise cultivation of all human capacities:

It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to. In proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable of being more valuable to others. [7]

Once again, it is my view that all Christians can join with Mill in this desire that human beings should be able to flourish in both the people they become and the works that they do. This is the fulfillment of human beings being made in the “image of God” and given the earth to cultivate and improve as a garden. It is the recovery of that image that motivates Christian conversion and sanctification. Where Christianity differs a bit from Mill’s vision is in a deeper appreciation for the capacities of the human spirit for foolishness, selfishness, and even evil.

This is not to say that Mill himself is not aware of the implications of his views of human flourishing, for he immediately conditions human freedom as existing “within the limits imposed by the rights and interests of others.” From a Christian perspective the same freedom love bestows on the beloved also restrains Christians actions that negatively impact the rights and interests of others.

Among those who Mill wishes to protect from artificial restraints are those of genius, who must be allowed to “unfold itself freely in both thought and practice”. [8]  In Mill’s view, human history is characterized by an abstract appreciation of genius coupled with a tendency to suppress it in favor of mediocrity.

At present individuals are lost in the crowd. In politics it is almost a triviality to say that public opinion now rules the world. The only power deserving the name is that of masses, and of governments while they make themselves the organ of the tendencies and instincts of masses. This is as true in the moral and social relations of private life as in public transactions. [9]

In Mill’s view, the masses, and those who have power because of their leadership of the masses, are instinctively given to oppressing new ideas and challenges to the status quo they enjoy. In modern democracies, this ends up in the suppression of dissent and new ideas. The ideal of progress requires that genius especially be free to think, publish and experiment with as few restraints as possible. Therefore, not just genius in particular requires protection.

Sitting behind Mill’s views sits the instinctive hostility of the Enlightenment to tradition, or in the case of Mill, “custom.” Thus Mill writes:

The despotism of custom is everywhere the standing hindrance to human advancement, being in unceasing antagonism to that disposition to aim at something better than customary, which is called, according to circumstances, the spirit of liberty, or that of progress or improvement. The spirit of improvement is not always a spirit of liberty, for it may aim at forcing improvements on an unwilling people; and the spirit of liberty, in so far as it resists such attempts, may ally itself locally and temporarily with the opponents of improvement; but the only unfailing and permanent source of improvement is liberty, since by it there are as many possible independent centres of improvement as there are individuals. The progressive principle, however, in either shape, whether as the love of liberty or of improvement, is antagonistic to the sway of Custom,…. [10]

It is here that I think Mill can most justly be critiqued. Every society has customs or traditions that impact thought, opinion, and behavior. In fact, there is no possibility of constructive thought without a tradition. The Enlightenment itself is a continuation of a tradition that began in the Renaissance, but which has roots in both the Greco-Roman and Judeo-Christian roots of Western Civilization. It is not custom or tradition that is the enemy of progress but prejudice and a lack of openness to new ideas and change.

Conclusion

As indicated above, there is much about Mill that should resonate with contemporary people, since we see in social media and among some politicians the desire to eliminate views that challenge the received wisdom of the present age. However, the defense that Mill makes is less convincing, I believe, to modern ears precisely because of the understanding we have of the power of the media and the difficulty of discerning harmful opinions from those which are not harmful.  Furthermore, we live in an age in which the relativity of knowledge and the reality of an almost infinite range of perspectives and opinions on matters of public interest render public officials and the public itself desirous of cutting off debate, sometimes prematurely. This is the dark side of postmodernism where combined with a Nietzschean notion of the “Will to Power,” which I believe to be a characteristic our media and politics.

Finally, our current situation undercuts one of the primary postulates of utilitarian thought: the notion that it is possible to define areas of private opinion and action where there are negligible impacts on others. In point of fact, human society is deeply relational and almost nothing we think, say or do is without some degree of social consequences for ourself and others. Defining the boundaries of freedom of thought, opinion and action has become increasingly difficult as has maintaining public defense of such freedom.

Copyright 2022, G. Christopher Scruggs, All Rights Reserved

[1] John Stuart Mill, On Liberty edited by Currin V. Shields (Indianapolis Indiana: Bobbs-Merrill, Library of the Liberal Arts, 1968), hereinafter “On Liberty”.

[2] See, David Shultz “On Liberty” in the First Amendment Encyclopedia https://www.mtsu.edu/first-amendment/article/872/on-liberty (downloaded January 5, 2022).

[3] On Liberty, at 67.

[4] Id.

[5] Id, at 70.

[6] Id, at 75-76.

[7] Id, at 76.

[8] Id, at 79.

[9] Id, at 80.

[10] Id, at 85-86.

Mill 1: “On Liberty” Part One

John Stuart Mill’s essay, “On Liberty” is one of the most important pieces of political philosophy that this series of blogs will examine. [1] Last year, I introduced Mill and reviewed his Utilitarianism. This week, we look at On Liberty. By common consent, On Liberty is the greatest and most enduring of Mill’s efforts as a political thinker, and the work has influenced American law and politics in a profound way, even to the current time, over a century after its publication.

At twenty-five, Mill met Harriet Taylor, who was then married to a businessman. Mill and Harriet Taylor became close friends, eventually marrying in 1851, after the death of her husband. For the next ten years, Mill and Harriet lived quietly together, and Mill credits her with the inspiration for his work. Mill wrote much of On Liberty before her untimely death in 1858, publishing it in 1859, untouched after Harriet’s death. He dedicated the essay to his wife in loving terms, calling her the inspiration for the work and co-author of much of the essay.

Tyranny in a Democratic Society

Mill was among the first to recognize that the advent of a democratic era changed the fundamental threat to liberty. In the ancient and medieval world, the fundamental threat to liberty was the king, emperor, the seat of all governmental power and authority. However, with the advent of democracy, the fundamental threat had changed. Now, the greatest threat to freedom was not the state, but the people themselves, or more properly a majority of the people or that portion of the people who have gained power. Here is how Mill puts it:

It was now perceived that such phrases as “self-government and “the power of the people over themselves” do not express the true state of the case. The “people” who exercise power are not always the same people over whom it is exercised; and the “self-government” spoken of is not the same government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people—the majority, or those who succeed in making themselves accepted as the majority, the people, consequently may desire to oppress a part of their number and precautions are needed against this s against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. [2]

I could spend the remainder of this blog unpacking the importance of this paragraph and the time spent reading it would not be wasted, for it describes the situation that presents the greatest threat to freedom in the West today. Mill recognized that, when translated into political institutions, Enlightenment notions like, “Will of the People” (Rousseau) and “Self-Government” practically mean the will of those in power and those who put them there. The fundamental threat to liberty, therefore, is the people themselves and their elected representatives.

This is important because elections do not always or even commonly reflect the “will of the people” but can and do reflect the will of political parties, media companies, “king-makers,” wealthy contributors, political activists, and the like. Elections can be rigged and votes purchased—and have been since the beginning of democratic institutions. “The people,” meaning “those not in power,” need protection from “elected officials and the people and those who put them there.” This is a fundamental challenge to any functioning democracy and is why checks and balances are so important as well as a strong tradition of freedom of speech.

Just as importantly, democracies, as de Tocqueville early observed, create restrictions on liberty by the very nature of majority rule and the desire of groups in power to stay there. Social pressure is much greater in a democracy than in other forms of government. In a nation where everyone is a Christian, Jews and other religions need protection from the majority religious faith. Increasingly in America, everyone of any faith needs protection from the elites who disbelieve in any kind of religion and simply play them off against each other for power. In a place where the majority are either Republican or Democratic, the minority group needs protection against the natural human tendency to force our beliefs on others. The same thing is true of moral and other positions that may be unpopular with those in power.

Thus, Mill observes that:

Society can and does execute its own mandates; and if it issues wrong mandates instead of right or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since thought not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life and enslaving the soul itself. [3]

Mill sees that social tyranny is the most devastating tyranny of all, reaching into every aspect of human life. Thus, a free society has an interest not just in the kinds of political tyranny that have besmirched human history, but also with social tyranny, which is just as bad.

Point of the Essay

Mill’s desire is to secure a place for freedom of thought and action within the context of modern society. His basic proposal is that legal and social compulsion is only warranted in order to prevent harm to others. Absent a harm to others, people should not be compelled to secure their own best interests or happiness. [4] Mill immediately exempts from this freedom minors and those lacking in the capacity to seek their own best interests or happiness.[5] This exemption also applies to societies which lack the capacity to act wisely. [6] This particular exemption seems to me to be both a justification of British colonial policy, with respect to which Mill was a participant, and an invitation to tyranny. [7]

In setting out his premise, Mill specifically endorses the public application of the utility principle of Bentham to public life, so long as “utility” is given its largest possible sense grounded on the permanent interests of the human race as a progressive species. [8] Mill, it will be remembered, rejected a simplistic Utilitarianism and included all the finest potentials of which human capacity within his version of Utilitarianism. In my view, Christians can easily embrace some features of Mill’s Utilitarianism, for it opens the door to ultimate commitments and their importance for a full life and true happiness.

Scope of Freedom of Thought, Speech, and Action

There are three particular areas in which Mill defends the liberty of the individual within the parameters of the utility principle:

  1. Individual freedom of thought, opinion, and conscience on all matters.
  2. Individual absolute freedom to develop and pursue a person’s own plan of life, suffering whatever consequences they endure because of their choices.
  3. Social freedom giving groups the same rights given individuals so long as their collective actions do not harm others. [9]

Mill’s formula has been criticized from time to time as insufficiently setting out the parameters of the utility principle in securing human freedom, and from a communitarian point of view for underestimating or ignoring the importance of social factors and the practical inability to take any actions that do not have impacts on others, including family, friends, colleagues, fellow citizens and the like. However, it would be wrong not to note that Mill, like most modern thinkers, intends to protect the individual from any unnecessary control and to protect freedom of thought, speech, and action to the maximum degree possible. In Mill’s case he wants to protect individual and social groups from restraints because he thinks this is the key to a healthy society.

Why Freedom Is Necessary

In Mill’s analysis, he sets out three fundamental reasons why freedom of opinion, speech and action need to be protected:

  1. First, the opinion, however obnoxious, might be correct. Human beings by nature believe their own opinions to be correct and those opposed to their opinions to be wrong. This is as true in democracies as in autocracies.
  2. Second, even if an opinion is false, its expression can be beneficial, for it gives those who hold a truer opinion the opportunity to grow in an understanding of the truth, which is beneficial to society.
  3. Finally, most opinions are neither wholly true nor wholly false. In these cases full freedom of thought, speech, and action gives society the opportunity to discern the best truth or a better truth than any previous opinion. [10]

In developing his argument, Mill gives three important examples to illustrate the foolishness of suppressing unpopular opinions, Socrates, Christian faith, and Marcus Aurelius. The ancient Greeks put to death Socrates for the crime of undermining the character of the young, the ancient Jews and Rome put to death the Christ, and Aurelius persecuted the Christian movement. In each case, history has proven the persecutors wrong. [11]

If we take our current division in American politics to be a good example of the third group, we recognize that neither the left nor the right, neither free-market aficionado’s nor those who prefer socialism are probably completely correct, but the best and most wise policy is something different. Over the past thirty or so years, both major political parties have been in the majority more than once, but the problems of an increasing deficit, out of control medical care costs, and an increasing concentration of wealth continue. A wise person might ask if there is not some better way or a better policy approach in these areas than the ones we have been trying.

Conclusion

On Liberty is of such importance that I have determined to spend at least another week exploring its meaning and significance for this series of blogs. Today, the great threat to liberty is not Christian faith but a kind of radical secularism that is busy squashing any contrary views. On college campuses the views of Christians, political conservatives, and others are actively suppressed. Prominent leaders are denied the chance to speak to students.

Unfortunately, our government is not without complicity in attempts to squash free speech. However well intentioned, this problem has become abundantly apparent in the attempts to prevent any critique of the government’s response to Covid19 and the potential availability of alternative treatments. I think Mill’s position would be that, while government has the right to issue mandates, it does not have the right, nor should it, to prevent or artificially inhibit contrary views, for this would be to prevent the full defense of its own policies and/or the exposure of a mistaken policy, neither of which are in the public interest.

In one of Mill’s most poignant passages, he reminds his readers that it is a “pleaseant falsehood” [12]to believe that truth has some inherent power to prevail over falsehood, going on to say:

It is a piece of idle sentimentality that truth, merely as truth, has any inherent power denied to error of prevailing against the dungeon and the stake. Men are not more zealous for truth than they often are for error, and a sufficient application of legal of even of social penalties will generally succeed stopping the propagation of either. [13]

The long history of the human race contains abundant examples in religion, government, science and other areas where powerful political, economic, and social forces have suppressed ideas that were true or promoted ideas that were false to the ultimate injury of many people and a delay in progress. [14] As Mill points out, it is foolish to believe that, in our current state of society such a result is no longer possible, warning “Let us not flatter ourselves that we are yet free from the stain even of legal persecution.” [15] Wise words.

Copyright 2022, G. Christopher Scruggs, All Rights Reserved

[1] John Stuart Mill, On Liberty edited by Currin V. Shields (Indianapolis Indiana: Bobbs-Merrill, Library of the Liberal Arts, 1968).

[2] Id, at 6.

[3] Id, at 7.

[4] Id, at 13.

[5] Id.

[6] Id, at 14.

[7] Id. I do not have space to quote and discuss this exemption, but Mill’s wording would permit despotic behavior any time an elite feels that the majority or a substantial minority of citizens are “unenlightened” about any matter that has the slightest reference to free self-determination.

[8] Id.

[9] Id, at 16.

[10] This is a summary of the argument Mill makes in Chapter 2 of On Liberty, entitled “Of the Liberty of Thought and Discussion.” Id, at 19-67. See also, David Shultz “On Liberty” in the First Amendment Encyclopedia https://www.mtsu.edu/first-amendment/article/872/on-liberty (downloaded January 5, 2022).

[11] Id, at 29-33. It is beyond the scope of these blogs, but this particular section is filled with wisdom and illustrates the complex views of Mill related to Christ and the Christian faith. Although he is critical of the persecution of heretics by Christians, he is also aware of the great contributions of Christian faith to Western history and the development of modern civilization.

[12] Id, at 34.

[13] Id, at 34-35.

[14] Id.

[15] Id.

Epiphany Letter: J.S. Mill on the Character of the Wise Person

For years, it was my habit to begin the Christmas sermon series on the first Sunday of Advent and end it on the Sunday the congregation celebrated Epiphany, which is traditionally the end of the Christmas Season. Epiphany celebrates the coming of the Wise Men to see Jesus, the last of the Christmas stories recorded in the Bible. This blog has to do with wisdom for living, and so Epiphany is among my favorite days of the Christian year. Therefore, this week, we are pondering the Wise Men who followed a star to find the Baby Jesus and how it might apply to political decision-making.

The Wise Men and Celestial Wisdom

Thursday January 6 is Epiphany, the day we will celebrate story of the Wise Men who came from the east to worship the Baby Jesus. The word “Epiphany” means a “revealing”. In this case, the Wise Men were the first Gentiles, that is non-Jews, to whom the Messiah was revealed. In the coming of the Wise Men, God revealed the importance of Christ not just to the Jewish nation, but to all the nations of the world.

The story goes something like this: After Jesus was born, hundreds of miles to the east, perhaps near Babylon, there were “Magi,” star-gazers, astrologists or astronomers, as we might call them, who studied the heavens believing that the future and the meaning of events could be understood through studying the stars. [1] They were among the forerunners of modern science of astronomy. Because of their great learning, these Magi were influential, sometimes advising Medean and Persian kings. About the time Jesus was born some of these Magi saw a star in the West where the Jewish people were located and deduced that it was an omen that a king had been born in the land of the Jews.[2]

After confirming their calculations, they decided to go and pay homage to this new-born King of the Jews. They set off on a journey that would have taken them across the Fertile Crescent, and then through Palestine, down the east side of the Mediterranean Sea until they came to Jerusalem then ruled by King Herod, who it turned out had not had an heir. After consulting with the religious leaders who advised Herod, they learned that the Jews believed their Messiah, an anointed king and deliverer, was to be born in Bethlehem in Judea, and so they went along their way until they found the child and worshiped him, gave him gifs of gold, frankincense, and myrrh. (Matthew2:1-12).

The wise men must have been open to spiritual realities, for as they were contemplating their return to the East, they were warned in a dream not to return to Herod, who wished to kill the child to secure his rule (v. 12). Being forewarned, they returned by another way. [3] All their years of learning and study, all the sleepless nights gazing at the stars, all their right and wrong conclusions as to the meaning of celestial events, came to a conclusion when they came and worshiped a child whose coming had been foretold in the stars they so diligently studied.

John Stuart Mill and Political Wisdom

Every academic adventure has some unexpected lesson. This past year in thinking about wisdom and politics, nothing has surprised me more than renewed respect for John Stuart Mill as a person and philosopher.  During his lifetime, Mill was known for his fair-mindedness and openness. His critics often suggested that he was too easily influenced by the opinions of others. Although he deeply respected his father, James Mill, and his great mentor, Jeremey Bentham, he came to understand the limitations of their views and the importance of the emotional side of life. His version of utilitarianism is different (and more human) than that of his father or mentor, Jeremy Bentham. His attitude towards religion was also different. He was more open, more accepting, and more influenced by friends who were believers than was possible for the elder Mill or Bentham.  If philosophy is a love of wisdom, then Mill represents a figure who loved the search for wisdom.

In On Liberty, Mill sets out his views on freedom of thought, which is a primary interest motivating the blogs these past two years. Near the beginning of On Liberty, Mill defends the importance of allowing people to express unpopular views. He describes the way in which wisdom is gained. Wisdom of any kind, including practical wisdom in public affairs, is gained in a long process of study, of listening to opposing views, of weighing facts, and of comparing opinions where there are contrary views.

Mill describes the process this way:

In the case of any person whose judgement is really deserving of confidence, how is become so? Because he has kept his mind open to criticism of his opinion and conduct. Because it has been his practice to listen to all that could be said against him; to profit by it as much as was just, and to expound to himself, and upon occasion to others the fallacy of what was fallacious. Because he has felt that the only way in which a human being can make some approach to knowing the whole of a subject is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. [4]

Hope for a New Kind of Political Culture

Wisdom, Mill believed, can only be gained by paying careful attention both to views with which we agree and those with which we disagree. Becoming wise requires we learn to carefully examine all possible views and responses to a problem regardless of the source. [5]  This means understanding the arguments proponents give for their opinions, and the results observed when views are put into practice. To be wise, we must develop the ability to carefully examine all the options before making a choice—and be willing to occasionally make an unpopular choice.

Amidst the “winner-take-all” character of our national politics, amid the constant barrage of prejudice right and left on social media, amid all the inflammatory speech that characterizes our public debate (and political fundraising), amid all the foolish posturing of our politicians, amidst the attempts to thwart unpopular views in the media and on college campuses, the art of listening and learning from everyone, including those with which we disagree has been lost. The result has been foolish policy making by experts, foolish decision making by our elected representatives, and foolish voting by the electorate.

Our politics has become shallow, prejudiced, and narrow. This critique applies to both major political parties and much of the commentary in the media and even in academic settings. “Proving my side is right” has become a substitute for thinking through options and the potential for wise compromise. Shrill intellectual bullying has become a substitute for thoughtful engagement. Constant appeals to prejudice on a few “hot button issues” has become a substitute for attacking the most difficult and pressing problems. The art of dialogue has been lost. The result has been social decay.I took an entire week on this one quote from Mill because it seems to me that the lesion to be learned from his quote is important.

These blogs are dedicated to the view that there are solutions to difficult problems, but finding them takes wisdom, diligence, hard work, a willingness to listen, dialogue, and a mind attuned to the search for hidden truth and realities that are often not easy to discern. My hope and prayer as we begin 2022 is that by the end, this particular series of blogs will be complete, and the author and his readers will have learned something wise and useful for ourselves, our families, our communities, our nation, and our world.

The wise men were not Jews, nor to our knowledge were they devout. They were, however, spiritual. They lived at a time before modern science drove a wedge between scientific knowledge and religious faith. Their study of the stars was not just a search for regularities and anomalies, but for the meaning of celestial events. Science has taught us to be cautious about attributing meaning to events, but events do still have meaning, and wise people still seek that meaning, not just of big events, like an unusual star, but the meaning of everyday events of human life, like the beginning of 2022.

Happy New Year!!!

Copyright 2022, G. Christopher Scruggs, All Rights Reserved

[1] The Magi may have been wise men of Median origin who were often found in positions of honor in Babylonian and Persian royal courts. They are often either astrologers, magicians or interpreters of dreams. These wise men seem to have been interpreters of the stars, or what we would call astrologers. See, P.A. Michlem, “The Gospel According to Matthew” in Westminster Commentaries (London: Methuen & Co. Ltd, 1917): 9.

[2] It is impossible to identify this “Star” precisely. Halley’s Comet is reported to have appeared around the year 11- 12 B.C. There are those who think that it was a supernova, another comet besides Halley’s, or perhaps most interestingly a conjunction of Jupiter and Saturn that occurred around the time of Jesus’ birth. See, Ulrich Luz, “Matthew 1-7” in Hermenia: A Critical and Historical Commentary on the Bible (Minneapolis, MN: Fortress press, 2007): 105 and Douglas R. A. Hare, “Matthew” in Interpretation: A Biblical Commentary for Preaching and Teaching (Louisville, KY: John Knox Press, 1993): 14. Hare wisely tells us that this star is a spiritual revelation not necessarily a natural phenomenon. The Wise Men, for whatever reason, saw this phenomenon and came to worship the child.

[3] Herod had good reason to be concerned. He was not a Jew, but an Idumean king, who owed his position to his friendship with Caesar Augustus. He was viewed by religious Jews as an illegitimate collaborator with Rome.

[4] John Stuart Mill, On Liberty edited by Currin V. Shields (Indianapolis Indiana: Bobbs-Merrill, Library of the Liberal Arts, 1968), 25.

[5] This is not a blog on business leadership, but one of the leadership priinciples that I sometimes quote to those I am helping is this: “A good leader remembers that, on any given day, the dumbest person in the room might just be right.” I have a very funny story from my own past that illustrates the truth and importance of this principle.

Calvin’s Theological Communitarian Approach to Pastoral Training

Introduction

Some weeks ago in this blog, I looked at Dietrich Bonhoeffer’s approach to theological education in the Confessing Church. As we think about pastoral education in the 21st Century, we should also look at how John Calvin, the founder of the Reformed tradition, approached pastoral formation. This will give us a better notion of how we can advance Reformed pastoral education in the 21st Century in San Antonio. I hope to follow this blog up with another in the future that deals with the Church Fathers and their views on pastoral preparation for ministry.

Calvin’s life and ministry was centered around the Genevan Church. In other words, all that he did in leading the Reformed movement in Europe was “church based.” This included training pastors to serve the Genevan and other Reformed churches. In training pastors, Calvin’s basic intent was to train pastors with a Protestant view of scripture, sound theology, the ability to lead worship and engage in pastoral care, and good character. Calvin did not ignore the importance of community in pastoral formation. His famous “Company of Pastors” was a deliberate attempt to build collegiality in the Geneva pastoral community.

Pastors and others interested in pastoral education and preparation may want to keep Calvin’s Genevan model in mind by:

  1. Maintaining a church-based model for theological education;
  2. Maintaining a focus on curriculum that is Biblical and Theologically Sound;
  3. Focusing on building pastoral character through something like a “Community of Pastors” among the staff and others to provide mentoring, support, and guidance to all those who study or participate in the Center.

Calvin’s Ministry in Geneva

Calvin was educated as a lawyer. His first work was on the Roman jurist Seneca, not on theology. His father had been an official with the church in France. Originally, he was being trained for ordination in the Roman Catholic hierarchy, but his father felt a career in law would be better for him and the family.  While in his academic years, he became active in the Protestant movement in a small way.  Unfortunately, France was not hospitable to Protestants at that time, so Calvin eventually fled to Basil, Switzerland, where he studied the Bible and theology in detail. During this time, he became an active Protestant. In 1536, he published the first edition of what became the Institutes of the Christian Religion as we know it today. [1] He began to be recognized as a brilliant scholar and became a leader in the Protestant movement.

Calvin eventually went to Geneva, where he was sought out by the leader of the Genevan Protestant movement, William Farel, who encouraged him to stay and work in Geneva. He did so, and spent the rest of his life in Geneva, except for a brief period of exile. In Geneva, he preached, taught, performed pastoral duties, and was active in public affairs. His commentaries, which extend to nearly every book of the Bible, were largely created through his teaching and preaching efforts.

Pastoral Formation in Geneva

During his years of ministry, Calvin maintained correspondence with many leaders of the Reformation all over Europe. His commentaries on various books of the Bible were published and widely read. Despite his devotion to scholarship, Calvin was active in the local community, particularly as an advisor to the consistory in Geneva.  Finally, he took a deep interest in the education of all Genevans. He taught regularly throughout his career.

His leadership in the Protestant Reformation made it inevitable that he would both engage in pastoral preparation and be consulted by others who desired to develop a Protestant clergy. His interest in education was to train citizens as well as pastors in both Christian faith and doctrine, but also with appreciation of classical and secular knowledge of his own day. It is because of this that Calvin is sometimes considered both a Reformation and Renaissance figure.

The historic commitment of Presbyterian and Reformed denominations to an educated clergy is a direct result of Calvin’s commitment to train well-educated leaders for the church with an understanding of the Bible and of Biblical principles, meaning Christian theology. If we believe, as I do, that Christianity in America is entering into a new phase, and that the historic ways Reformed pastors have been trained is becoming increasingly ill-adapted to the culture surrounding us, this commitment of Calvin and the Reformed churches to create new institutions and new ways to train pastors is an important inspiration to continue forward.

Church Based Nature of Genevan Academy

Calvin created the Genevan Academy to train students in Christian and humanist learning in preparation for both ministry and secular occupations. In particular, because of the antipathy between Protestants and Catholics, it was necessary for Protestants to form new institutions to train up a new generation of pastors. In areas under the control of Protestant leadership, properly educated Reformed ministers were often in short supply. Under these circumstances, church leaders came to believe that new ways were needed to educate clergy in the doctrines and practices of the Reformed faith. In particular, centers of the Protestant movement were encouraged to create places where pastors could be trained. Before Calvin created the Genevan Academy, he was aware than centers existed elsewhere, for example in Strasbourg and Wittenberg. [2]

The nature of the Genevan Academy was practical. Students were expected to preach and perform pastoral duties in addition to academic studies. This is a significant difference between the Genevan Academy and much contemporary pastoral training, where the seminary feels responsible only for intellectual formation, not for pastoral formation. This is a departure from Calvin’s vision, which involved the formation of the character of his students, not just imparting information. In contemporary language, Calvin’s approach was on the creation of a wholistic training experience for pastors.

Biblical and Theological Soundness

Calvin, like many of his Protestant contemporaries, was concerned about the perceived low quality of the clergy of his day. In the Institutes, he spends a good deal of time on the issues of pastoral character and formation. One of his primary critiques of the Roman Catholic clergy concerned quality. Decay in the teaching office of the church, characterized by “new doctrines” and “turning away from pure doctrine,” resulted in poor leadership and an inadequate church lacking in the first mark of the church: doctrine purely preached. Thus, Calvin concentrated on the creation of a clergy with sound doctrinal views necessary for a vibrant church:

“[O]nly those are to be chosen who are of sound doctrine and of holy life, not notorious in any fault which might both deprive them of authority and disgrace the ministry. The very same requirements apply to deacons and presbyters. We must always see to it that they be adequate and fit to bear the burden imposed on them, that is that they be instructed in the skills necessary for the discharge of their office” (4.3.12).

Calvin believed that the Roman Catholic Church of his day had failed in a central task training and providing good leadership for the church. Therefore, renewal of the church required first and foremost a renewed and restored leadership characterized by sound doctrine, good character, and with the skills and capacities needed to bear the burden of ministry.

Calvin understood that what he was doing in the Genevan Academy was nothing new.  From the earliest times, the church leaders took under care youths to be prepared for the pastoral office (4.4.9). This care can be traced as far back as the relationship between Paul and Timothy (See, Acts, and I and II Timothy). The purpose of this training was that “from early youth under sacred instruction and strict training they took on an exemplary life of gravity and holiness; and separated from worldly cares they became accustomed to spiritual cares and studies” (4.4.9).

Before such young people were admitted into the office of pastor, they were weighed as to their “merits and morals” in common council with the lay people of the church (4.4.10). Calvin realized that, in the initial life of the church, it was the local church that trained its pastors, and early church leaders considered it their responsibility to also train such leaders.

The first quality of those leaders was an understanding of the content of Christian faith and doctrine so that the “faith once delivered” was maintained. This meant that students at the Genevan Academy had to have an understanding of the Bible and Biblical theology. This is why he spent so much time and effort teaching students, writing commentaries, and revising the Institutes. If the church were to be well-led, it needed Biblically and theologically sound pastors.

Formation of Pastoral Character

As mentioned above, Calvin believed that there were both characterological and doctrinal requirements for church leadership. One of Calvin’ s most trenchant critiques of the Roman Church involved the growing characterological deficiencies of the clergy. In one passage he says:

This is certain, that for a hundred years scarcely one man in a hundred has been elected who has comprehended anything of sacred learning. I spare the previous centuries not because they were much better, but because our question concerns only the current church. If their morals are appraised, we shall find few or almost none whom the ancient canons would not have judged unworthy (4.5.1, emphasis added).

Calvin was a pretty harsh intellectual combatant, and he may have overstated the situation; however, his point is important: character is as important as learning when it comes to pastoral training and preparation for ministry.

Company of Pastors

In Geneva, before students were admitted into the office of pastor, not only their biblical and theological understanding was to be judged but also their character (4.4.10).

One practical way in which Calvin was able to encourage pastoral character was through his so-called, “Venerable Company of Pastors” formed as a part of the adoption of his Ecclesiastical Ordinances. [3] In 1559, pastors being trained in the Geneva Academy were included in membership. This Company of Pastors consisted of the ministers of Geneva’s three city churches and a dozen countryside parishes together with the students. Some estimates put the number of such members at over 100. [4] The Company of Pastors met weekly to examine candidates for ministry and discuss the theological and practical business of the church. Thus the pastors of the congregations for which Calvin was directly responsible and the students he was training had weekly meetings during which community was built among them, consistency was achieved in doctrine and morals, problems were solved, and character could be formed.

The purpose of the Company of Pastors was to create and maintain standards in ministry, to assist in maintaining the family life of its members, and to enhance and secure their personal piety. [5] It was a ministerial fellowship designed to create a better clergy than the Roman Catholic Church possessed and to give them love and support in the conduct of their affairs. One author put it this way:

The Venerable Company of Pastors was a disciplined community. Its meetings were more than conversation about abstractions, for their purpose was to encourage pastors to grow in faith and faithfulness. Once every three months the company engaged in a session of mutual support and correction. Among the faults that required correction were lack of zeal for study and an undisciplined life. All of this was for the sake of the gospel––its proclamation, reception, and fulfillment. [6]

One common critique of contemporary churches and their pastors has to do with the isolation of contemporary ministry and its lack of communal support, standards and spiritual protection for the local pastor. The problem was no less important in Calvin’s day, and he could see that there needed to be a mechanism to support, train, and hold accountable pastors, The Company of Pastors was his solution to the problem.

As we have analyzed the formation of a new program in San Antonio, one of the greatest issues we have faced has been how to create personal mentoring and communal learning in a world that is rapidly embracing digital learning. The Company of Pastors approach provides us with an authentic, Reformed alternative. Together with educational experiences in person and online, we should create a community of church leaders, a Company of Pastors, to provide the kind of intimate growth and accountability that is lacking nearly all contemporary pastoral education.

Interestingly, Reformed groups in both the Presbyterian Church (USA) and the Presbyterian Church in America have recognized that need and formed such groups. [7] While in seminary and afterward for a time, I participated in such a group. My own experience is that it is difficult in our culture to create the kind of mentoring, accountability and discipline Calvin desired. On the other hand, one of the authors cited in this little review reminds readers that Calvin himself had difficulties. We will not create a perfect solution, perhaps it will be enough to create a workable one.

Conclusion

A study of the Genevan Academy and the work of John Calvin supports the creation of church-based, Biblically-centered, theologically-grounded, and pastorally-focused seminaries by congregations who feel the need for a new and different form of pastoral education. Almost every Reformed denomination has seminaries that teach a pretty sophisticated form of their essential doctrines. It will be a priority in the future for seminaries to  form alliances and in hiring staff to take time to ensure that candidates have appropriate pastoral character.

As I have visited with churches and seminaries, the most common deficiency I have found in the emerging model of seminary education is in the area of mentoring new pastors so that they develop the character and practical capacities needed to be successful in planting and leading local congregations. It is almost certain that this cannot be done online. It must be done personally. Calvin’s Company of Pastors gives us a model to follow in meeting this need.

Copyright 2021, G. Christoper Scruggs, All Rights Reserved 

[1] John Calvin, Institutes of the Christian Religion, John T. Neill/Ford Lewis Battles, vol. II (Philadelphia: Westminster Press, 1960), 4.4.1. hereinafter, “Institutes”. References will be to Book, Chapter and Section (i.e., “x/y/z”) using Arabic numerals to avoid confusion.

[2] Robert Vosloo, “Calvin, the Academy of Geneva and 150 years of theology at Stellenbosch: historical-theological contributions to the conversation on theological education” University of Stellenbosch, Stellenbosch, South Africa

at http://uir.unisa.ac.za/bitstream/handle/10500/4543/Vosloo-SHEXXXV-Supplement-Dec2009.pdf?sequence=1

(Downloaded, November 4, 2021).

[3] See, John Calvin, Theological Treatises, “Draft Ecclesiastical Ordinances,” John Baille, John P. McNeill, Henry P. Van Dusen, ed. J.K.S. Reid, tr. Vol. XXII (Philadelphia: Westminster, 1944).

[4] See, Scott M. Manetsch, Calvin’s Company of Pastors: Pastoral Care and the Emerging Reformed Church 536–1609. Oxford Studies in Historical Theology (New York, NY: Oxford University Press, 2004).

[5] Gospel Reformation Network, “Companies of Pastors”  https://gospelreformation.net/companies-of-pastors/ (downloaded November 4, 2021).

[6] The quote is form John Burgess, Jerry Andrews, Joseph D. Small A Pastoral Rule for Today (Downers Grove, IL: Intervarsity Press, 2019) reprinted in Joseph D. Small, “All the Ministers Shall Gather Together,”  October 26, 2019. found at https://theologymatters.com/john-calvin/2019/all-the-ministers-shall-meet-together/ (downloaded November 4, 2021)

[7] See footnote 5 above for a PCA example. As to the PCUSA, it has a Company of Pastors for both pastors and seminary students. For more information, see https://www.pcusa.org/site_media/media/uploads/theologyandworship/pdfs/cnp_general_intro_brochure.pdf

In the Year of our Lord 2021

For freedom Christ has set us free; stand firm therefore, and do not submit again to a yoke of slavery (Galatians 5:1).

In the Year of our Lord 1949

For many years, the Wall Street Journal reprinted an editorial written by Vermont Royster in 1949 as its Christmas Eve message. The title was “In Hoc Anno Domini” (“In this Year of our Lord”). [1] It is probably the most famous editorial ever written by a journalist. At the time the editorial was written, the Soviet Union was spreading Marxism throughout Eastern Europe and the world, bringing tyranny wherever it gained power. This ideology was often seen by Western elites as fundamentally outlining the inevitable future of human social organization. Many educated people silently believed in the eventual defeat of the West and an inevitable victory of some form of the “dictatorship of the proletariat” that Marx, Lenin and Stalin promised—with the loss of economic and other freedoms that victory would entail.

For those who believed in freedom and other historic ideals of the West, the outlook appeared bleak. It seemed an invisible “Iron Curtain” was falling upon the West as surely a material wall would be built between East and West Germany. [2] In Fulton Missouri, three years earlier Winston Churchill raised a solemn warning in a speech known for the phrase “Iron Curtain”. [3] He said:

We cannot be blind to the fact that the liberties enjoyed by individual citizens throughout the British Empire are not valid in a considerable number of countries, some of which are very powerful. In these states control is enforced upon the common people by various kinds of all-embracing police governments. The power of the state is exercised without restraint, either by dictators or by compact oligarchies operating through a privileged party and a political police.”

His warning has meaning in every age, including our own.

In this situation, Vermont Royster wrote his 1949 Christmas message, which ended with the verse I chose to guide this week’s meditation. The article was a meditation on the roots and meaning of freedom for Western society. Royster began by describing the situation into which Christ was born. Freedom, for the average person, was a distant dream. Most of human history, and especially Jewish history, involved a series of enslavements by conquerors, Egyptian, Assyrian, Babylonian, Median, Persian, Greek, and finally Roman. The Roman Empire was as violent a regime as existed before or since—given its technology as oppressive as totalitarian states of today. Narrow elites governed cold-bloodedly. There was darkness on the face of the earth, and fallen “Powers and Principalities” ruthlessly reigned through their equally fallen earthly embodiments (Ephesians 6:12).

In the First Year of our Lord

Then, one night (we know not when, but celebrate the birth on Christmas Day), an unwed mother gave birth to a baby, who cried his first cry and was placed in a manger (Luke 2:6-7). No one in Rome or Jerusalem, or any other place of power, noticed or gave the slightest attention to the birth or the first solitary cry of the baby born that night. The child grew up in absolute anonymity at the fringe of the Roman Empire. About the age of thirty, he had a short public ministry until the powers and principalities rose up and had him killed. His death by crucifixion also went unnoticed, though the Roman Centurion assigned to the execution reflected that that he “surely was the Son of God” (Mark 15:39).

Everyone in power expected things to go back to normal, and for a long while as history unfolded, it seemed they were right. However, Love and Wisdom had come to dwell on earth in the person of that Babe of Bethlehem and begun a slow, patient, self-giving, and often sacrificial struggle for a place in every human heart. Where that Wisdom and Love grew, truth, goodness, beauty, justice, freedom, and true community slowly grew as well.

The disciples of the Man from Nazareth, declared that death could not and did not hold their teacher. They spread out into the known world to share the message that a personal Word of Grace and Truth had come and dwelt upon the earth with wisdom and love—albeit a wisdom and love the powers and principalities easily ignored. Most people disregarded the message, as did many who heard the message first-hand. However, the message had a mysterious power behind it. Men and women changed as they came into contact with the Babe.

The mysterious wisdom of God, what Apostle Paul declared to be “foolish to the Gentiles” (I Corinthians 1:23), had begun a slow march through history among those who responded. The love of the Man of Sorrows had a power to change hearts. Wherever the message gained traction, it slowly created a future of hope, justice, freedom, justice, and peace. People, families, towns and eventually an empire were changed. A kingdom of wisdom and love slowly formed in history and outlived the Roman Empire and many empires since.

In This Year of our Lord 2021

We are near the end of this “Year of Our Lord” 2021. The powers and principalities are on the loose, as always. Forces of darkness always seem to have grabbed a march on the forces of light in human history. Wisdom seems a powerless thing in the face of shrewdness and deceit. Love appears weak in the face of social, military and political power. However, for those who gaze at the manger and see a light the world cannot see, victory has already come “In Hoc Anno Domini.” The powers and principalities will not finally or forever withstand the Newborn King and his kingdom of love and light.

Merry Christmas,

Chris

[1] Vermont Royster, In Hoc Anno Domini (Wall Street Journal, December 24, 1949) To read a copy, see https://www.wsj.com/articles/in-hoc-anno-domini-1450915168 (Downloaded December 15, 2021).

[2] By 1948, the Russians had determined to drive the Western powers out of Berlin. The blockade of the West occurred prior to Royster’s message and was over by Christmas 1949. The wall itself was not built until 1961, and was finally torn down in 1989. See, Berlin Wall History.Com at https://www.history.com/topics/cold-war/berlin-wall (downloaded December 22, 2021.

[3] Winston S. Churchill, “The Sinews of Peace” (Westminster College, Fulton, Missouri, March 5, 1946). This speech is popularly known as the Iron Curtain Speech. I have made minor typographical corrections for readers of the text. Churchhill wrote “The Sinews of Peace” as a speech with conventions that appropriate to that genre.

From Darwin to Social Darwinism

Charles Robert Darwin (1809-1882) is without question one of the most important intellectual figures of what we call the “modern world.” His work in biology is the counterpart to the work of Isaac Newton in physics. In fact, his influence was not only felt in his own day, but continues to be felt in a number of areas, including philosophy. After Darwin, mechanistic metaphysical theories fell into dispute and organic metaphysical theories emerged. After Darwin, social organization and politics began to be visualized in ways that were compatible with evolutionary ideas. Darwin was, therefore, not just an important figure in his own day, but a seminal figure who has impacted many disciplines.

Before Darwin, others, including his ancestor, Erasmus Darwin, speculated on ways in which species might have developed through a process of emergence.  It was Darwin who gathered and organizes such a weight of evidence that his conclusions could simply not be scientifically ignored. Darwin was well-equipped for his discovery having studied medicine before his voyage. His views on evolution began to crystalize in 1837 when a young Charles Darwin left Plymouth Harbor aboard the H.M.S. Beagle on what was a five-year voyage around the world. The long voyage allowed Darwin to amass a huge amount of data which would support his version of the theory of natural selection, and especially this notion that small evolutionary changes were introduced as certain organisms showed a greater ability to survive and reproduce. During the course of his voyage, he was able to observe the differences between various species and the struggle for existence that characterizes much of the natural world. When he came home, he began to review his notes, thinking about his observations and making his scientific conclusions.

The exact nature of Darwin’s religious views is open to question. He was a self-proclaimed agnostic, disclaimed atheism, yet was somewhat active in his local Anglican parish. His wife was a devout Christian.  He suffered greatly from the death of his father and daughter, events which impacted his religious views. Darwin rarely attended religious services, and was not a believer in Biblical revelation or conventional trinitarian theism. He seems to have believed in a Creator God who set up the basic laws of the universe that allows the emergence of human life. He believed that there must be some First Cause of the world. [1] It might be best to consider as fundamentally Darwin a skeptical deist.

Origin of the Species

Darwin’s master-work, On the Origin of the Species by Means of Natural Selection, or the Preservation of Favored Species in the Struggle for Life published in 1859 was one of the most important pieces of scientific literature of the modern age. [2] The fundamental insight of Darwin was to recognize that random variations either increased or decreased the potential for a particular animal to survive and multiply, and over great lengths of time, those species or variants which had increased potential for survival would pass those qualities on to another generation, eventually producing an evolutionary effect. The process he described as the “struggle for existence” is the origin of the famous term, “survival of the fittest.”

Darwin was aware that Origin of the Species contained views that cast doubt on some features of conventional thinking. Four of these implications are:

  1. Members of a species or variety develop “individual differences,” some of which may be favorable to survival and others of which may be unfavorable. Over time, the favorable survive while those with unfavorable characteristics become extinct. This is the process of natural selection.
  2. Since all species and varieties are capable of reproducing at a rate greater than the environment can sustain, there is an inevitable struggle for existence, a struggle in which the weaker species or varieties eventually die out and those species more favored survive.
  3. The time frame involved in the evolution of the animal kingdom by an evolutionary process implies that the world is much older than traditionally believed. The slow process of natural selection would take immense amounts of time to produce the variety of species that inhabit the world.
  4. Evolutionary theory implies that the creative process is still on-going, for evolution has not stopped and new varieties and species of animals continue to develop over time. Thus, there is no fixed number of species or fixed characteristics of any species.

In Origin of the Species Darwin does not deal with the evolution of the human race, but restricts himself to defending the view that animal species developed in a long process of random modifications which over time allowed those species which were most adapted to survive and reproduce to emerge and thrive.

Decent of Man

In a second book, Descent of Man Darwin undertook to show that the human race was undoubtably descended from more primitive animals via the process of natural selection, the most recent of these being some form of ape. [3]Once again, in this book, Darwin sets out an incredibly complex and complete argument, sustained by massive amounts of evidence, that the human race is descended from members of the animal kingdom, in his view probably apes from the African continent.

There are many aspects of the Decent of Man that have interest for moral and political philosophy interesting connections between Decent of Man and the utilitarian movement previously discussed. The notion that human beings are the product of a long evolutionary history, includes the idea that there must have been biological impulses that led to the development of human moral and political capacities. Among Darwin’s most important observations are:

First, as the race developed, the increased intellectual abilities of human beings combined with the ability to reflect upon decisions made in the past allowed human beings to grow, change counter-productive instincts, and adjust behaviors to environmental changes. With the increased mental powers of human beings came also increased ability to feel shame, regret, remorse and repentance, all powerful agents of change. [4] These abilities convey important evolutionary advantages.

Second, among important human facets for morals and politics is the fact that human beings are instinctively social as are the apes from which the human race is descended. “Everyone will admit that man is a social being.” [5]Darwin considers the human social instincts central to human moral development. The instinct of sociability, inherited from his ape ancestors, is more highly developed in human beings because of their increased mental abilities and the nature of social pressures put on human beings in society. The development of a moral sense in society leads to the sense of duty that Kant emphasizes.  The ability to cooperate and discipline self-seeking in the interests of the community and obey the dictates of an abstract duty, of course, also convey an evolutionary benefit upon the human race. [6]

Third, Darwin embraces a version of utilitarian thinking. As the human species developed, the instinct to maximize pleasure and minimize and avoid pain would have guided the moral development of the species. [7] This guidance is not contrary to the social instincts of the human race but consistent with its social instincts:

No doubt the welfare and the happiness of the individual will normally coincide; and a contented, happy tribe will flourish better than one that is discontented and unhappy. We have seen that, even at an early period in the history of man, the expressed wishes of the community will have naturally influenced to a large extent the conduct of each member; and as all wish for happiness, the “greatest happiness principle” will have become a most important secondary guide and object; the social instinct, however, together with sympathy (which leads to our regarding the approbation and disapprobation of others) having served as the primary instinct and guide. [8]

The point that Darwin makes is that our natural instinct to avoid pain and death and to enjoy pleasure and success drives human beings in fundamental ways. A communal creature naturally considers the needs and desires of others and of the community as a whole, for in so doing that creature lives out the social instinct. Over time, other individuals and communities praise socially advantageous behavior and critique socially disadvantageous behavior. The result of this is the moral development of the individual and of society.

Roots of Social Darwinism

It Decent of Man that is most important from the perspective of the history of political thought.

With savages, the weak in body or mind are soon eliminated; and those that survive commonly exhibit a vigorous state of health. We civilized men, on the other hand, do our utmost to check the process of elimination; we build asylums for the imbecile, the maimed, and the sick; we institute poor-laws; and our medical men exert their utmost skill to save the life of every one to the last moment. There is reason to believe that vaccination has preserved thousands, who from a weak constitution would formerly have succumbed to small-pox. Thus the weak members of civilized societies propagate their kind. No one who has attended to the breeding of domestic animals will doubt that this must be highly injurious to the race of man. It is surprising how soon a want of care, or care wrongly directed, leads to the degeneration of a domestic race; but excepting in the case of man himself, hardly any one is so ignorant as to allow his worst animals to breed.

The aid which we feel impelled to give to the helpless is mainly an incidental result of the instinct of sympathy, which was originally acquired as part of the social instincts, but subsequently rendered, in the manner previously indicated, more tender and more widely diffused. Nor could we check our sympathy, if so urged by hard reason, without deterioration in the noblest part of our nature. The surgeon may harden himself whilst performing an operation, for he knows that he is acting for the good of his patient; but if we were intentionally to neglect the weak and helpless, it could only be for a contingent benefit, with a certain and great present evil. Hence, we must bear without complaining the undoubtedly bad effects of the weak surviving and propagating their kind; but there appears to be at least one check in steady action, namely the weaker and inferior members of society not marrying so freely as the sound; and this check might be indefinitely increased, though this is more to be hoped for than expected, by the weak in body or mind refraining from marriage. [9]

In these paragraphs, there is found much of the underlying thought that would result in a kind of “Social Darwinism,” popular in the 19th Century. The underlying notion is that protection of the weak is socially counterproductive, prevents the natural consequences of weakness, and allows the continued propagation of the weak. The popular philosopher, Herbert Spencer popularized these ideas and developed what is popularly called, “Social Darwinism.”  I hope to deal with social Darwinism at a later time, for it continues to influence the behavior of political actors, even actors who disclaim its importance. For the time being, it is enough to observe that a Christian view of reality reaches different conclusions.

Consequences of Darwin’s Thought

The 18th Century ended with reason enthroned, a mechanical vision of the universe in place, and the human race enthroned as the capstone of creation. Human intelligence would eventually eliminate all the ancient evils of human existence. Science would explain nature and enable human beings to master nature, including the ancient enemy of disease. Human beings were created equal, and had equal rights to life, liberty, property, and the pursuit of happiness. Liberal republican democracy was the best method of political organization. Rational politics would eliminate the suffering of the masses.

Darwin was the first piece of intellectual sand to begin to erode the false optimism of  this vision—a mechanistic vision of reality would be replaced by an organic vision. The human race seemed dethroned as unique among creatures. Finally, the foundation of the political ideas of the Enlightenment was undermined–and would continue to be undermined by Marx, Nietzsche, and others. With Darwin, history began a slow entry into a new era.

Social Darwinism

Politically, Darwin was a progressive, familiar with the work of Bentham and Mill and sympathetic to the utilitarian movement. However, the implications of Darwin’s theory were not entirely compatible with the progressive ideals of the Enlightenment. The following is a brief outline of the problems evolutionary theory possess for classic 18thCentury (and American) political ideals:

  1. If human beings, and the differences in intelligence and ability, were the results of random variations and the struggle for existence, then in what way is it proper to speak of human beings as created equal? The American Declaration of Independence, the Constitution, and the those of other nations were dependent upon a fundamental equality among human beings.
  2. If human beings are the result of chance variations which gave some individuals superior potential to survive and thrive, and if human institutions are the result of this same struggle, then by what logic should government protect the weak, the helpless, the unfortunate, and disfavored, who it would seem are simply the losers in the evolution of the world and society.
  3. If some human beings are more gifted, stronger, more intelligent, more capable, then should these individuals not rule, since they are the superior product of the evolutionary process?

While many scholars find these difficulties insuperable, I do not. [10] As this series of blogs enters the 20thcentury, my reasons will become clear. For the time being, it is enough to indicate that the kind of “equality” that justifies democracy is not an equality of physical, mental, or moral endowments. The fact that human beings are not equal in many areas does not mean that human beings are not fundamentally conscious beings capable of reason and feeling with an underlying common humanity.

The fact that human society and human political structures have evolved over time and will continue to evolve over time, does not mean that in each time there are not substantial and permanent improvements. While an evolutionary approach may (and I think does) cast doubt upon the general wisdom of radical changes in society the consequences of which are not understood, changes do occur and many of them are for the best. For example, I have critiqued “contract theory” of government as relying on a non-existent “first contract” that took the human race out of a hypothetical “state of nature.” This does not mean that social thinking and institutions did not in the 17th and 18th Century reach a point in which it was both reasonable and important to think of society and involving a kind of contract between those who rule and those who are ruled in which there are mutual obligations and responsibilities.

Finally, in every area of life there are structures of leadership, and functional organizations promote the best leaders and place every person in the organization in such a way as to maximize the benefit of the organization to all participants. I see no reason why such structures undermine democracy or democratic institutions. For example, most private corporations have mandatory retirement ages. Were our governments to have such constitutionally enacted restrictions, it would not undermine its fundamental democratic structure.

Conclusion

In the end, it is my view that the social instincts of human beings led to the development of families, tribes, and very small societies, all of which had internal rules and guides that had built up over the years for the safety and security of the community. From these fundamental units, over the long history of human society and political thinking and action, more and more complex structures of relations have emerged, as have a clearer understanding of both the reality of power and the need to limit the political power of elites. Thus, human social instincts have guided and still guide our thinking, and can guide wise societies into a better communal future. We need not despair of democracy or our democratic institutions, for the very discoveries that some people believe undermine them actually support their existence and future.

From a religious perspective Darwin’s scientific achievements do not undermine religious faith, though some aspects of religious dogma’s may need a restatement.  In many respects, the insight of Darwin and his followers give credence to seeing creation as a slow process put into motion by an all-wise, and particularly all-patient God. In a time like ours, when over-reaction seems to be the order of the day, the long view of evolutionary theory might be a tonic against the revolutionary impulses of a passing age.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Kevin Padian, “Ten Myths about Charles Darwin” Oxford Academic: Bioscience Volume 59, Issue 9, October 2009, Pages 800–804,https://academic.oup.com/bioscience/article/59/9/800/248702 (downloaded December 4, 2021).

[2] Charles Darwin, The Origin of the Species (New York, NY: Barnes and Noble Classics, 2004).

[3] Charles Darwin, Decent of Man Ed, Mortimer J. Adler (New York, NY: Encyclopedia Britannica, Inc., 1952). In Decent of Man, Darwin speculates that some form of African ape was the original ancestor, a conclusion current science is inclined to accept based upon scientific discoveries of the 20th Century.

[4] Id, at 313.

[5] Id, at 310.

[6] Id, at 318.

[7] Id, at 316. In this passage, Darwin evidences a familiarity and sympathy with John Stewart Mill’s work.

[8] Id, at 316-317.

[9] Id, at 323-324.

[10] See, Bertand Russell, A History of Western Philosophy (New York, NY: Simon and Schuster, 1945),725-719. Russell, in his work, reveals his own philosophical stances and I think the impact of his own religious skepticism. I have tried to follow faithfully the outline of his views as to the impact of Darwin’s thought on democratic theory, though I do not agree with it.

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.