Feet of Clay

This is a Fourth of July like no other. Instead of celebration, there is cancellation. Instead of enthusiasm, there is introspection. Instead of flag-waving, there is flag-burning. Our joy has been turned into mourning.

The word has gone out that the Founding was inherently corrupt, that this country has been so since its inception, say, 1619 or thereabouts. The reference to 1619 is to the introduction of slavery into the colony of Virginia. It will come as a shock to the sitting governor of Virginia, but that was nothing new for the continent (let alone the world), since indigenous tribes were already practicing it. But be that as it may, it is striking that slavery is used as a motif to characterize this country, for it directly contradicts the vision it has always had of itself as a “city on a hill,” championing the “sacred cause of liberty.”

“My country, ’tis of thee, sweet land of liberty, of thee I sing.” Indeed, it is of a country of liberty that we sing, not one of slavery. Liberty is America’s leading idea, and always has been. And yet, there is something ambivalent to that appeal. Liberty, yes – but what kind of liberty? That question goes to the heart of what ails America today. For liberty, not slavery, is the problem America inherits. This indicates a fly in the founding ointment. It implicates an unstable composition at the very foundation. America is a colossus with feet of clay. This essay, then, will be an exercise in philosophical podiatry.

One of the great misconceptions which regularly makes the rounds has it that America was founded on medieval natural-law doctrine, so that there is real, substantial continuity between the medieval philosophical tradition of law and the 18th-century version to which the Founders subscribed, and upon which they established our institutions.[1] Of course, as far as ethics is concerned, that can hardly fail to be the case. A basic Christian ethic, the product of the Western Christian tradition, was shared by Protestants and Catholics of whatever political persuasion. But we speak with reference to law and politics. Supposedly, a natural-law tradition along these lines, based on the teaching of Thomas Aquinas, was taken over by Protestants, mainly the Reformed, by which is meant Calvinists and many Anglicans. (For his part, Luther, it is said, opposed natural law and advocated the primacy of the will.)[2] And while America was founded by Protestants, mostly Calvinists,[3] “the provenance of the founders’ ideas was ultimately Catholic.”[4]

A key middleman in this continuity thesis is Richard Hooker, theologian and priest of the Church of England. Hooker authored the influential Of the Lawes of Ecclesiastical Politie, a more ambitious work than the title suggests, for it laid out a philosophy of law in general, including principles of civil and constitutional law. Now in this discussion, Hooker provided a summary of Thomistic legal philosophy which is said to have acted as a bridge toward the kind of natural law thinking that pervaded the Founders.

Building on Hooker’s legacy – so the story goes – John Locke weaved the various strands of the Western philosophical tradition into his theory of natural rights and social contract. This crystallized the tradition and provided the materials upon which to erect the constitutional superstructure.

To bolster this claim, Locke is shown to have quoted Hooker no less than ten times, “in support of the following views: that human law must agree with natural law; that the foundations of public society are man’s natural inclination to order and his agreement to form a government; that all laws are enacted by consent because the power to make them belongs to society; that no citizen is exempt from the law of society; and that the ruler must be bound by the law.”[5] And indeed, Locke himself acknowledged this stratagem: “I could send my Reader to Bracton, Fortescue, and the Author of the Mirrour, and others; Writers, who cannot be suspected to be ignorant of our Government, or Enemies to it. But I thought Hooker alone might be enough to satisfie those Men, who relying on him for their Ecclesiastical Polity, are by strange fate carried to deny those principles upon which he builds it.”[6]

So Locke himself laid claim to the continuity thesis. But this is disingenuous. A chasm lies between Hooker and Locke, one which cracked open during the wars of religion in the 16th century and widened into a canyon during the Thirty Years’ War. These wars pushed intellectuals to seek a new basis for common consent beyond confessional Christianity. They found it in nature in its various aspects and dimensions: natural science, natural religion, natural law, even (in the century to follow) natural economics – physiocracy, the basis for Adam Smith’s doctrine. And this natural law was something quite different from what it had been.

The change in mentality is captured iconically in Hazard’s classic work, The European Mind 1680–1715.

Never was there a greater contrast, never a more sudden transition than this! A hierarchical system ensured by authority; life firmly based on dogmatic principle – such were the things held dear by the people of the seventeenth century; but these – controls, authority, dogmas, and the like – were the very things that their immediate successors of the eighteenth held in cordial detestation. The former were upholders of Christianity; the latter were its foes. The former believed in the laws of God; the latter in the laws of Nature; the former lived contentedly enough in a world composed of unequal social grades; of the latter the one absorbing dream was Equality.[7]

Hazard is speaking of the general frame of mind: “One day, the French people, almost to a man, were thinking like Bossuet. The day after, they were thinking like Voltaire. No ordinary swing of the pendulum, that. It was a revolution.”[8] But among the philosophers and theologians, the war between the “ancients and the moderns” was already being waged, contemporaneously with the foot soldiers of Ferdinand II, Gustavus Adolphus, and Louis XIII.

One major area of conflict was precisely the doctrine of natural law, which went from being a transcript of the Decalogue[9] to being a set of principles amenable to autonomous reason apart from divine revelation, indeed consigning divine revelation to the status of positive law.

The pioneer in the genre and the true founder of modern natural law, Hugo Grotius, could not have been clearer about this. He forever dissociated natural law from eternal law – the sheet anchor of Thomist natural law[10] – by deriving natural law from human nature. As such,

The natural law is not dependent on God for its content, nor for its existence, but only for its implantation in us. It would exist even if God did not exist: Et haec quidem quae iam diximus, locum aliquem haberent etiamsi daremus, quod sine summo scelere dari nequit, non esse Deum, aut non curari ab eo negotia humana [What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness: that there is no God, or that the affairs of men are of no concern to Him]…. And although the natural law in either the strict or the broad sense flows from principles innate in human nature, it can be said to have a divine origin, because He willed that these be implanted in us.[11]

What is the content of this natural law? The Decalogue? By no means, for the Decalogue was only given the nation of Israel and is not binding on the nations.[12] The reliance on divine revelation is divisive; what is needed is a standard that all persons can resort to regardless of religious affiliation. This standard, which “flows from principles innate in human nature,” could be boiled down to contract, summarized in the maxim pacta sunt servanda (agreements must be kept). Natural law was reduced to a bare nub. “Grotius made a theoretical shift in which the law of nations was being dissociated from the law of nature and the will of God, and made purely the result of positive law, of human agreement, of autonomous contract. Thereupon the appeal to natural and divine law was made inconsequential.”[13]

Grotius furnished the initial iteration of natural-rights and social-contract theory. His approach relied heavily upon the contractual aspect, by which he argued – so as to refute the champions of a right to resistance – that a people can even contract away its freedom to a despot, just as an individual can contract away his freedom to a master. Rousseau would ridicule him for it. “Grotius denies that all human power is established in favour of the governed, and quotes slavery as an example. His usual method of reasoning is constantly to establish right by fact. It would be possible to employ a more logical method, but none could be more favourable to tyrants.”[14]

Regardless, Grotius established the foundation for what became known as modern natural law.[15] Locke was one of the many elaborators of natural-law systems erected on that foundation. Locke’s innovation was not so much what he considered to his “very strange Doctrine” of a right of private individuals to take up the sword and vindicate natural law against all violators (Two Treatises, II, § 9), since Grotius had already anticipated it. Rather, it was to establish as inalienable rights the right to freedom, thus outlawing slavery, and political participation, thus outlawing absolutism. Liberty both civil and political was thus established as an inalienable right.

This position has consequences. Liberty in the Western tradition had never been understood as an absolute inalienable right. In fact, medieval liberty was not absolute at all, but a relative concept correlate with subjection, so that the social order consisted in degrees of freedom, none of which were absolute.[16] Citizenship as it evolved was understood to entail a package of inherited rights and liberties. It was not the baseline condition of man, existing “by nature,” but a laboriously achieved cultural artifact, the preservation of which required attention and conviction. These were common-law rights and liberties, the components of the ancient constitution.

Christopher Brooke, a leading member of the House of Commons in the early 17th century, put it this way: “We hold our privileges by prescription and prescription is inheritance,”[17] whereby privileges signify prescriptive rights. William Penn placed great stock in this ancient constitution: “Above all Kingdoms under Heaven, it is England’s Felicity to have her Constitution so impartially Just and Free, as there cannot well be any Thing more remote from Arbitrariness, and Zealous of preserving the Laws, by which it’s Rights are maintained.”[18] Basic to this constitution are fundamental laws, of which the first part is the general principles of the common law of nations,[19] the second the specific rights of Englishmen:

But those Rights and Priviledges, which I call English, and which are the proper Birth-Right of Englishmen, and may be reduced to these Three.

1. An Ownership, and Undisturbed Possession: That what they have, is Rightly theirs, and no Body’s else.

2. A Voting of every Law that is made, whereby that Ownership or Propriety may be maintained.

III. An Influence upon, and a Real Share in that Judicatory Power that must apply every such Law, which is the Ancient Necessary and Laudable Use of Juries: If not found among the Britains, to be sure Practised by the Saxons,and continued through the Normans to this very Day.

That these have been the Ancient and Undoubted Rights of Englishmen, as Three great Roots, under whose Spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government, I shall endeavour to prove.[20]

The common-law tradition is the one upon which the Founders built. Their approach was in the first place practical, not philosophical; the resort to natural rights was an expedient to counter parliamentary opposition. John Adams made this clear in 1774, during the First Continental Congress, while sitting on the committee drawing up a statement of rights. To the question, “Whether we should recur to the law of nature, as well as to the British constitution, and our American charters and grants. Mr. Galloway and Mr. Duane were for excluding the law of nature. I was very strenuous for retaining and insisting on it, as a resource to which we might be driven by Parliament much sooner than we were aware” (The Works of John Adams, vol. 2, p. 374). Thomas Jefferson enshrined it in the Declaration of Independence. We have been dealing with the unintended consequences ever since.[21]

Natural-rights doctrine was utterly foreign to the medieval mindset as well as to the common-law mind. Edmund Burke realized this when that doctrine was put to use in the French Revolution. For the Founders, this doctrine served as a tool to declare independence from a sovereign who otherwise could lay claim to obedience precisely on the basis of common-law rights, which at the end of the day were grants of privilege by the crown. Burke showed that this provenance, far from being detrimental to the maintenance of liberty, was the sure basis for it.

In the famous law of the 3rd of Charles I, called the Petition of Right, the parliament says to the king, “Your subjects have inherited this freedom”, claiming their franchises not on abstract principles “as the rights of men”, but as the rights of Englishmen, and as a patrimony derived from their forefathers. Selden and the other profoundly learned men who drew this Petition of Right were as well acquainted, at least, with all the general theories concerning the “rights of men” as any of the discoursers in our pulpits or on your tribune; full as well as Dr. Price or as the Abbe Sieyes. But, for reasons worthy of that practical wisdom which superseded their theoretic science, they preferred this positive, recorded, hereditary title to all which can be dear to the man and the citizen, to that vague speculative right which exposed their sure inheritance to be scrambled for and torn to pieces by every wild, litigious spirit.

The same policy pervades all the laws which have since been made for the preservation of our liberties. In the 1st of William and Mary, in the famous statute called the Declaration of Right, the two Houses utter not a syllable of “a right to frame a government for themselves”. You will see that their whole care was to secure the religion, laws, and liberties that had been long possessed, and had been lately endangered….

You will observe that from Magna Charta to the Declaration of Right it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity – as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises, and liberties from a long line of ancestors.

This policy appears to me to be the result of profound reflection, or rather the happy effect of following nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know that the idea of inheritance furnishes a sure principle of conservation and a sure principle of transmission, without at all excluding a principle of improvement. It leaves acquisition free, but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims are locked fast as in a sort of family settlement, grasped as in a kind of mortmain forever. By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges in the same manner in which we enjoy and transmit our property and our lives.[22]

Our Declaration of Independence did not have to forswear this basis in inheritance, but needed only to establish it on more proper grounds, the grounds of nationhood come into its own.

Read Burke’s lines again, and ask yourself if any statement could be more directly contradictory of our Declaration. It is mind-boggling that conservatives today are so oblivious to this contrast. Many are not even aware of any difference between Jefferson and Burke, and blithely appeal to both. It is a testament to stupefying ignorance.

The tradition of common-law rights and liberties, stripped of their English provenance and shunted onto a timeless natural-rights basis, lost its moorings. The gambit delivered a hostage to fortune, issuing forth in civil war – the product of the inability to outgrow the bondman’s condition by virtue of “the idea of inheritance” which “furnishes a sure principle of conservation and a sure principle of transmission, without at all excluding a  principle of improvement.” After all, isn’t this how slavery was eliminated in the Christian West in the first place? It just so happens that this was the first time in history that such a thing occurred. But the Civil War was settled so disadvantageously that it ruined a generation of both white and black lives and left a legacy of hatred and embitterment which lingers to this day.

Further consequences: it paved the way for the radical subjectivism that plagues our social order. And it ensconced the entitlement mentality, which bases itself squarely on the natural-rights approach – to what is there not a natural right, when once politicians avail themselves of the magic wand? “What do we want? [Fill in the blank.] When do we want it? NOW!”

What ails us is the dual paternity, the unstable composition to which we owe our founding. Upon renouncing our allegiance to the English crown, we lost touch with the basis of our constitution’s legitimacy, and instead of recurring to the nation-oriented constitutionalism of an Althusius, we threw in our lot with the natural-rights framework of Grotius’ social contract.[23] Since then, the inexorable working of the mechanism that lies at its heart has slowly but surely ground our common-law freedoms into a pulp, an unrecognizable mush dribbling through our fingers. Human nature is an insufficient ground upon which to establish first principles. Only a return to the Decalogue will restore our liberties, and our fortunes.

For further reading: Common Law & Natural Rights: The Question of Conservative Foundations

[1] The latest iteration of this is Robert Reilly, America on Trial: A Defense of the Founding (San Francisco: Ignatius Press, 2020). A similar perspective was presented in 1989 by Prof. Gary Amos of Regent (then CBN) University: Defending the Declaration: How the Bible and Christianity Influenced the Writing of the Declaration of Independence (Brentwood, Tennessee: Wolgemuth and Hyatt, 1989). I was taking Prof. Amos’s class in government at the time he was getting this book published; we spent a great deal of class time working through it.

[2] Reilly argues this point specifically in an interview by Law & Liberty’s Richard Reinsch:

“That’s right, and you see in Luther, under Ockham’s influence, he explicitly denies popular sovereignty. The Medievals all thought no ruler rules by divine right, he’s just another human being. All authority comes from God, but God doesn’t …

Richard Reinsch: Pass through the people, yeah.

Robert Reilly: It’s mediated through the people who are sovereign. Luther explicitly denies popular sovereignty, he explicitly denies the requirement of consent representation, and he explicitly denies the right to revolution. So, this new theology of a voluntarist God, a God of pure will and power who, of course, is incomprehensible, such a God is not accessible to reason, you can’t know anything about His essence when that’s will, and it’s a will that is not under the control of anything and through anything, at any time.”

Luther was anything but a systematic thinker, and while his position initially looked like this, it evolved toward a right of resistance. The Lutheran position on constitutionalism paved the way for Calvin’s, as I show in Calvin and the Whigs, pp. 53–55. And through Philip Melanchthon, natural law would become a mainstay of Lutheran ethical and legal teaching.

[3] “Scholars regularly distinguish between Lutheranism and Calvinism, which is important in in the American context because only 1.5% of founding era Americans were Lutheran. On the other hand, between 50-75% of Americans are reasonably described as Calvinists.” Mark David Hall, “America’s Founders Acquitted,” Law & Liberty, June 29th, 2020.

[4] “Citing Bellarmine and Suarez is not meant to insinuate that America’s origins were Catholic. Most of the Founders were Protestant, after all, but the provenance of their ideas was ultimately Catholic in that they invoked natural law and natural rights to justify their cause.” Reilly, America on Trial: A Defense of the Founding (San Francisco: Ignatius Press, 2020), n.p. (ch. 7).

[5] Alice M. Justice, “Richard Hooker and John Locke: political theory in perspective” (1969). Honors Theses, Paper 598, p. 8.

[6] Locke, Two Treatises of Government, II, § 239.

[7] Paul Hazard, The European Mind 1680–1715 (Harmondsworth: Pelican Books, 1964 [1935]), p. 7.

[8] Ibid.

[9] “Those two principles [viz., love of God and love of neighbor] are the first general principles of the natural law, and are self-evident to human reason, either through nature or through faith. Wherefore all the precepts of the decalogue are referred to these, as conclusions to general principles.” Aquinas, Summa Theologiae, II.I., q. 100, art. 3, reply to obj. 1. The entirety of question 100 establishes the point.

[10] Even if a weak reed: see Stahl, The Rise and Fall of Natural Law, pp. 47ff.

[11] Grotius, De Jure Belli ac Pacis, Prologue, §§ 11–12; translation in Alvarado, The Debate that Changed the West, pp. 200–201.

[12] Ibid., p. 210.

[13] Ibid., p. 67.

[14] Jean-Jacques Rousseau, On the Social Contract, ch. II.

[15] “Hugo Grotius is the originator of the system of philosophy of law which goes by the name of ‘natural law’ and which for more than a century was the only one applied and cultivated; indeed, it was the only one held to be possible, because the various systems which were customarily distinguished during this period (sociabilistic system, system of fear, external peace, etc.), were merely particular implementations of one and the same system.” Stahl, Rise and Fall of Natural Law, p. 139.

[16] See Calvin and the Whigs, ch. 3, “Establishment,” for a detailed development of medieval constitutionalism and liberty.

[17] Quoted in Corinne C. Weston, “England: Ancient Constitution and Common Law,” in The Cambridge History of Political Thought: 1450-1700, p. 377.

[18] “England’s Present Interest Considered,” in The Political Writings of William Penn (Indianapolis: Liberty Fund, 2002)p. 26.

[19] “the Corner-Stones of Humane Structure, the Basis of Reasonable Societies, without which all would run into Heaps and Confusion; to wit, Honestè [sic] vivere, Alterum non laedere, jus suum cuique tribuere, that is, To live honestly, not to hurt another, and to give every one their Right, (Excellent Principles, and common to all Nations).” “England’s Present Interest Considered,” in The Political Writings of William Penn, p. 26.

[20] “England’s Present Interest Considered,” in The Political Writings of William Penn, pp. 26-27.

[21] See Deconstructing the Declaration and The Genealogy of Liberty.

[22] Burke, Reflection on the Revolution in France, vol. 2 of Select Works of Edmund Burke (Indianapolis: Liberty Fund, 1999), pp. 120–122.

[23] Althusius versus Grotius is the theme of my book, The Debate that Changed the West.