Cato and the Limits of Democracy

As has been established, John Trenchard and Thomas Gordon were passionate defenders of liberty, and prefigured the American revolutionaries in many ways. Another way they would prefigure the revolutionaries is the manner in which they tempered their libertarian ardor with expressed reservations about the limits of human reason. Like the Framers, they did not embrace the sort of full-throated democracy that would seemingly flow from their liberalism. Writing as Cato, they discussed the problem with “passion,” employing language that would be echoed six decades later by Madison and Hamilton.

Cato writes early on about how the passions can dupe men into acting against their better interests. In the sixth letter, Cato talks about the causes of the South Sea bubble:

Self-love beguiles men into false hopes, and they will venture to incur a hundred probable evils, to catch one possible good; nay, they run frequently into distracting pains and expences, to gain advantages which are purely imaginary, and utterly impossible.

Were the passions properly balanced, men would act rationally; but by suffering one passion to get the better of all the rest, they act madly or ridiculously.

This idea that the passions lead men to act irrationally would become a recurring theme throughout the letters. In the 22nd letter, Cato writes:

From the present spirit of this nation, it is still further evident to me, what I have always thought, that the people would constantly be in the interests of truth and liberty, were it not for external delusion and external force. Take away terror, and men never would have been slaves: Take away imposture, and men will never be dupes nor bigots. The people, when they are in the wrong, are generally in the wrong through mistake; and when they come to know it, are apt frankly to correct their own faults.

This is a common sentiment, and another one which would be echoed to some degree by the Framers. The average man is essentially good, but is apt to being gullibly deceived and to act against their better interests. In this way he is unlike powerful men, who are driven by baser motives. This is an idea that Cato repeats in the 24th letter:

The people have no bias to be knaves; the security of their persons and property is their highest aim. No ambition prompts them; they cannot come to be great lords, and to possess great titles, and therefore desire none. No aspiring or unsociable passions incite them; they have no rivals for place, no competitor to pull down; they have no darling child, pimp, or relation, to raise: they have no occasion for dissimulation or intrigue; they can serve no end by faction; they have no interest, but the general interest.

The same can rarely be said of great men, who, to gratify private passion, often bring down publick ruin; who, to fill their private purses with many thousands, frequently load the people with many millions; who oppress for a mistress, and, to save a favourite, destroy a nation; who too often make the publick sink and give way to their private fortune; and, for a private pleasure, create a general calamity. Besides, being educated in debauchery, and pampered in riot and luxury, they have no sense of the misfortunes of other men, nor tenderness for those who suffer them: They have no notion of miseries which they do not feel. There is a nation in Europe, which, within the space of an hundred years last past, has been blessed with patriots, who, void of every talent and inclination to do good, and even stinted in their ability for roguery, were forced to be beholden, for most of the mischief which they did, to the superior arts and abilities of humble rogues and brokers.

Cato pits the common man against their rulers, judging the former to be basically good at heart and the latter to be true knaves.

This does read as though Cato is trying to have it both ways. Man is basically good and wise, but is also prone to being led into error. But if man is so easily deceived, then that doesn’t necessarily speak well of his innate judgment. It also seems a bit like flattery. The readers of these letters would assume they are among the good folk Cato is describing here. It’s those others who are rascals. We see this down to our age, where it’s always someone else who is a bad person – not the intended audience.

Nonetheless, if Cato writes glowingly of mankind here, he takes a turn to the pessimistic side in the 31st letter. For what it’s worth, Gordon wrote (or principally wrote) these particular letters. In the 31st letter, he would definitively take the “men are not angels” line of argument. He begins the letter thusly:

The study of human nature has, ever since I could study any thing, been a principal pleasure and employment of mine; a study as useful, as the discoveries made by it are for the most part melancholy. It cannot but be irksome to a good-natured man, to find that there is nothing so terrible or mischievous, but human nature is capable of it; and yet he who knows little of human nature, will never know much of the affairs of the world, which every where derive their motion and situation from the humours and passions of men.

It shews the violent bent of human nature to evil, that even the Christian religion has not been able to tame the restless appetites of men, always pushing them into enormities and violences, in direct opposition to the spirit and declarations of the gospel, which commands us to do unto all men what we would have all men do unto us. The general practice of the world is an open contradiction and contempt of this excellent, this divine rule; which alone, were it observed, would restore honesty and happiness to mankind, who, in their present state of corruption, are for ever dealing treacherously or outrageously with one another, out of an ill-judging fondness for themselves.

In the course of seven letters we’ve gone from “man is basically good” to human nature is generally wicked. And it is this very wickedness that necessitates the creation of human laws.

The truth is, and it is a melancholy truth, that where human laws do not tie men’s hands from wickedness, religion too seldom does; and the most certain security which we have against violence, is the security of the laws. Hence it is, that the making of laws supposes all men naturally wicked; and the surest mark of virtue is, the observation of laws that are virtuous: If therefore we would look for virtue in a nation, we must look for it in the nature of government; the name and model of their religion being no certain symptom nor cause of their virtue. The Italians profess the Christian religion, and the Turks are all infidels; are the Italians therefore more virtuous than the Turks? I believe no body will say that they are; at least those of them that live under absolute princes: On the contrary, it is certain, that as the subjects of the Great Turk are not more miserable than those of the Pope, so neither are they more wicked.

Religion can’t even tame man’s base passions, so laws become necessary. Note the language here: “the making of laws supposes all men naturally wicked.” David Hume would expresses almost the exact same sentiment years later in writing that all men should be supposed to be knaves (though it’s important to remember that David Hume never says that all men are knaves, a distinction often forgotten when writing about Hume). Hume, of course, would have a tremendous influence on Madison and Hamilton in their respective views of human nature, and all of these writers in turn sound very much like Cato.

Cato continues in this vein:

Of all the passions which belong to human nature, self-love is the strongest, and the root of all the rest; or, rather, all the different passions are only several names for the several operations of self-love. Self-love, says the Duke of Rochefoucauld, is the love of one’s self, and of every thing else for one’s own sake: It makes a man the idolater of himself, and the tyrant of others. He observes, that man is a mixture of contrarieties; imperious and supple, sincere and false, fearful and bold, merciful and cruel: He can sacrifice every pleasure to the getting of riches, and all his riches to a pleasure: He is fond of his preservation, and yet sometimes eager after his own destruction: He can flatter those whom he hates, destroy those whom he loves.

Man is driven by self-love into a lack of compassion and empathy for others. In turn, men will treat each other basely based on this lack of other-regard.

It fills me with concern, when I consider how men use one another; and how wretchedly their passions are employed: They scarce ever have proper objects for their passions; they will hate a man for what he cannot help, and what does them no harm; yet bless and pray for villains, that kill and oppress them.

In the 44th letter, Cato (still Gordon) would return to this theme, arguing that men are ruled by passions and not reason. It isn’t reason that drives men to do good, he writes, but self-interest and fear.

The good that they do to another, they do not because it is just or commanded; nor do they forbear mutual evil because it is unjust or forbid: But those things they do out of choice or fear, and both these center in themselves; for choice is pleasure, and fear is the apprehension of pain. So that the best things that men do, as well as the worst, are selfish; and self-love is the parent of moral good and evil.

Cato continues in this letter to outline the ways men act out of self-interest and fear rather than reason. This is why so many seem to act against principle: they are motivated by things other than human reason. If men were actuated by reason, we would not witness so many seemingly contradictory actions and behavios.

Cato here represents the tensions which have always existed in liberal philosophy. Like John Locke before them and the Framers after them, Gordon and Trenchard believe just enough in the innate goodness of man to argue for a liberal social order wherein the people are afforded wide latitude to live life free of coercion. Yet they dial back this laudatory rhetoric, citing self-love and irrationality as for why men behave foolishly and wickedly. Because of this basic irrationality, pure democracy is just as non-viable alternative as absolute monarchy.

This seeming contradiction – man is basically good but also wholly irrational – is one of the guiding philosophies of the Framers. It could be summed up thusly: man is generally good, but is an imperfect animal often guided less by reason than their passions. Left to his own devices, man is usually a force for good. But because of this tendency towards irrationality, he should not be given absolute power, either as a member of the demos or as an autocratic ruler. Society should allow for humans to flourish as they will, but there should be enough safeguards in the constitutional order to mitigate the ill-effects of human irrationality.

Whether or not one agrees with this approach, it is impossible not to see Gordon and Trenchard as clear influences on the thought of the framers of the American constitiution.

Fighting Back Against Civil War Myths

Jesse Kelly tweeted this out the other day:*

1. Slavery is a repulsive thing and a stain on the history of our country. 2. Did you know in the beginning Lincoln would have stopped the war and let the South keep their slaves? See? Complicated.

*This was either before or after he was suspended, which is another matter in and of itself.

This is a fairly standard talking point about the civil war. The longer form of it goes something like this: “The civil war wasn’t really about slavery, and as proof, look at Lincoln. Abraham Lincoln was perfectly willing to go back to the status quo ante had the confederates laid down their arms early on in the war. So see – the civil war wasn’t really about slavery because Lincoln himself was willing to allow slavery to continue.”

This is one of several arguments about the war that I come across with some regularity, so I’ve decided to post about it and a few of the other common myths I’ve heard repeated.

Before I begin, let me note that I use “myth” with some reservation, because many of these arguments have a grain of truth. Therefore they are not complete myths or fabrications. Rather, they are arguments that either distort the context or leave off important bits of information. For simplicity’s sake, though, that’s the title I’ve gone with.

Myth #1: Lincoln’s aim was to preserve the union, not to end slavery.

I’ll start with the above-stated one first. As I said, there is a grain of truth to it. Lincoln’s primary aim truly was to restore the union, and he was willing at first to retain slavery if it meant an early end to the war. What’s more, Lincoln was anti-slavery, but he was not an abolitionist, meaning he desired the eventual eradication of slavery, but did not advocate immediate measures for its end. (Of course this is a point against another myth, which I’ll get to later.)

That being said, there are several reasons this argument is misleading. First of all, it leaves the impression that Lincoln wasn’t concerned about slavery at all, or that his passion for emancipation was lacking. While he may not have favored immediate abolition, he nonetheless spent almost the entirety of his public career forcefully and unequivocally condemning slavery, expressing a desire for its eventual abolition.

Also, one has to consider his House Divided speech. Only in the context of a united country could we arrive at a nation that was totally free. If the slave states removed themselves from the union, then abolition no longer is a possibility. So whole Lincoln was primarily interested in maintaining the union at all costs, it was to preserve a union which would eventually pave the way for the total eradication of slavery.

What’s more, as the war progressed, it became a war for emancipation. The Emancipation Proclamation is often dismissed as a cynical prop for perpetuating the war, but the proclamation changed the moral arc of the war. That most of Lincoln’s cabinet urged Lincoln not to issue the proclamation would seem to be a point of proof in how passionately Lincoln felt about this measure.

Myth #2: Lincoln wanted to send all freed slaves to an African colony.

This is another half-truth that is spread with the intent of harming Lincoln’s reputation. Again, there is an element of truth to it, but it’s not the whole truth. Lincoln did initially advocate and develop colonization plans – both before he was president, and then during the early days of his presidency. He did not have much hope that freed slaves would be treated well by their former captors, so thought it would be best for them to remove them to another location.

However, Lincoln’s views changed as the war progressed. He had regular audiences with Frederick Douglass and other freed slaves. During these conversations they made him aware of how much they desired to be part of the American experience. When he realized they didn’t want to be shipped off to a colony and instead wanted to make a life in this country, he shifted course. In his final public address, he specifically addressed reconstruction efforts and his hope that the franchise would be given to freed slaves (if tempered by the qualifications that they be deemed to be intelligent and/or to have fought in the war). These very words only fueled the fire in the heart of one audience member: John Wilkes Booth. So Lincoln may have initially favored colonization, but had clearly and definitively abandoned those plans by the close of the war.

Myth 3: The war had other major causes than slavery, especially tariffs.

This would have had more merit had the civil was been fought thirty years earlier (or maybe now), but there’s very little to support the notion that what drove southern voters to declare their independence was fury over tariff rates. One could spend several posts (or an entire book) just discussing this one point, so I will have to simplify this tremendously.

Kansas didn’t bleed over tariffs. John Brown didn’t raid Harper’s Ferry to protect federal agents collecting tariffs. Dred Scott wasn’t a Supreme Court case declaring tariffs unconstitutional. Abraham Lincoln and Stephen Douglas didn’t travel around the state of Illinois in 1858 participating in a series of debates about tariffs.

I’m fairly confident that northern politicians, newspapermen, record keepers, etc. did not go through pre-war records, deleting all references to tariffs. Read history books. Read primary sources. They can tell you more than some “yankee” behind a computer screen in 2018 what animated decision makers in 1860 and 1861. And they’ll tell you that there was one primary animating issue, and it sure as hell wasn’t freaking tariffs.

Myth #4: Regardless of the specific cause, the confederate states had a right to secede.

Now we’re getting into trickier and more subjective territory. As a blogger who is using the pseudonym also used by two writers who had very liberal views on revolution, I couldn’t possibly argue that the confederate states didn’t have a right to secede, could I? I could, and I do.

The Declaration of Independence talks about a “long train of abuses” suffered by the colonists before they rebelled against the king. No one has ever adequately explained the long train of abuses suffered by the confederate states which justified their rebellion. If anything, as Lincoln alluded to in the House Divided speech, the abuses were in the other direction. The repeal of the Missouri Compromise, the Lecompton constitution, the Dred Scott decision – all these major events were decided in favor of  slave-holder interests. One could even go back to the Mexican-American war as an event where the outcome favored the slave states. Every major American political decision and event for the better part of the decade showed southern, not northern domination of American politics. The election of 1860 merely promised to halt this trend.

Besides, the argument laid out in myth #1 would seem to contradict this point. Conceding that Lincoln had no plans to immediately abolish slavery or even fight for legislation in that direction, what justification was there for secession? You basically have an administration and Congress that was no longer willing to lay down and play dead for the slave interest, and you consider that sufficient justification for revolution?

Myth #5: Lincoln proved himself a tyrant, particularly with regards to his suspension of habeas corpus.

Let’s look at Article I, section 9, of the Constitution:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

I honestly don’t know how much more black and white the text could be. In cases of rebellion – and this was a pretty clear-cut case of rebellion – the writ of habeas corpus can be suspended. The only case that can be made against Lincoln is that this language is placed in Article 1, and thus is implicitly a legislative act. While there’s some merit to that argument, Congress did retroactively approve Lincoln’s decision once they came into session.

Lincoln himself justified his actions more succinctly than I ever could in this letter to Erastus Corning. Lincoln gets to the heart of the matter:

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?

Anyone trying to compare Lincoln’s actions with, say, Woodrow Wilson during World War I, would be conflating two drastically different situations. A war being fought on one’s own soil presents a much different challenge, and the constitution very clearly provides for an exception in the privilege of the writ of habeas corpus.

It should be noted that Lincoln’s treatment of individuals like Vallindingham was much softer than would have been expected in almost any other time in history up until that point. Vallandingham didn’t exactly have to survive the Tower of London.

That’s it for now. If you have other oft-repeated civil war myths, please share.

 

The Libertarian Cato

In the previous posts I explored Gordon and Trenchard’s writings regarding the origins of government and the justifications for revolution. In this post I’ll examine what I would describe as their more libertarian writings. Cato’s musings on freedom of speech and freedom of conscience are perhaps the most important in reference to the American founding.

Cato consistent advocates a broad grant of freedom to speak one’s mind. Freedom of speech, Cato would write in the 15th letter, is essential to free government:

Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech: Which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know.

This sacred privilege is so essential to free government, that the security of property; and the freedom of speech, always go together; and in those wretched countries where a man cannot call his tongue his own, he can scarce call any thing else his own. Whoever would overthrow the liberty of the nation, must begin by subduing the freedom of speech; a thing terrible to publick traitors.

Later on in the same letter, Cato would write that “freedom of speech is the great bulwark of liberty.” A free society would die if it did not grant citizens the ability to speak without fear of censorship or imprisonment. Tyrants feared the pens of great thinkers, and tyranny flourished where these great minds were shut up.

Rulers have stifled this essential liberty by contending that they are often libeled. Cato argues that a good ruler need not fear libel, writing at the conclusion of his 32nd letter:

The best way to escape the virulence of libels, is not to deserve them; but as innocence itself is not secure against the malignity of evil tongues, it is also necessary to punish them. However, it does not follow that the press is to be sunk, for the errors of the press. No body was ever yet so ridiculous to propose a law for restraining people from travelling upon the highway, because some who used the highway committed robberies.

It is commonly said, that no nation in the world would allow such papers to come abroad as England suffers; which is only saying, that no nation in the world enjoys the liberty which England enjoys. In countries where there is no liberty, there can be no ill effects of it. No body is punished at Constantinople for libelling: Nor is there any distinction there between the liberty of the press, and the licentiousness of the press; a distinction ever to be observed by honest men and freemen.

Honest rulers don’t have to fear a malignant press, and should suffer the slings and arrows lest they suppress a fundamental right. Well at least the Framers understood the truth of this concept. 

In the 81st and 82nd letters, Cato would employ similar logic in arguing for the rights of religious dissenters. First of all, many of the religious dissenters, especially the Quakers, have no desire to hold ecclesial power – after all, they don’t even have any priests. The Episcopal Establishment would therefore have nothing to fear in granting such groups liberty to worship. Others, like the Presbyterians, are too small in number to threaten the Established Church. These dissenting sects merely want to govern themselves, and pose no threat to the established order.

While this may not seem like a very principled argument for religious freedom, Cato consistently pushes back against the Episcopal Establishment. I’ll cover more about Cato and religion in another post, but both Gordon and Trenchard themselves were not members of the established church, and would certainly oppose efforts to force conformity.

If freedom of speech and religion are vital natural rights, what mechanisms can ensure a liberty-loving government protective of those rights? In the 61st letter, Cato would lay out a few essential principles which should sound familiar to American ears: frequent elections and rotation in office.

So that I can see no means in human policy to preserve the publick liberty and a monarchical form of government together, but by the frequent fresh elections of the people’s deputies: This is what the writers in politicks call rotation of magistracy. Men, when they first enter into magistracy, have often their former condition before their eyes: They remember what they themselves suffered, with their fellow-subjects, from the abuse of power, and how much they blamed it; and so their first purposes are to be humble, modest, and just; and probably, for some time, they continue so. But the possession of power soon alters and vitiates their hearts, which are at the same time sure to be leavened, and puffed up to an unnatural size, by the deceitful incense of false friends, and by the prostrate submission of parasites. First, they grow indifferent to all their good designs, then drop them: Next, they lose their moderation; afterwards, they renounce all measures with their old acquaintance and old principles; and seeing themselves in magnifying glasses, grow, in conceit, a different species from their fellowsubjects; and so by too sudden degrees become insolent, rapacious and tyrannical, ready to catch at all means, often the vilest and most oppressive, to raise their fortunes as high as their imaginary greatness. So that the only way to put them in mind of their former condition, and consequently of the condition of other people, is often to reduce them to it; and to let others of equal capacities share of power in their turn: This also is the only way to qualify men, and make them equally fit for dominion and subjection.

A rotation therefore, in power and magistracy, is essentially necessary to a free government: It is indeed the thing itself; and constitutes, animates, and informs it, as much as the soul constitutes the man. It is a thing sacred and inviolable, where-ever liberty is thought sacred; nor can it ever be committed to the disposal of those who are trusted with the preservation of national constitutions: For though they may have the power to model it for the publick advantage, and for the more effectual security of that right; yet they can have none to give it up, or, which is the same thing, to make it useless.

These two concepts thus go hand-in-hand. Frequent elections and rotation in office will mitigate the potentially negative consequences of office-holders being stuck in the same position for years and years. These ideas would be echoed years later, perhaps more so by anti-Federalists, who felt the terms of Congressmen were far too long.

In letter number 70, Cato would turn to the notion of mixed forms of government, and would contend that mixed forms of government were essential to preserve liberty.

All men desire naturally riches and power; almost all men will take every method, just or unjust, to attain them. Hence the difficulty of governing men, and of instituting a government equally proper to restrain them and protect them; and hence the insufficiency of simple forms of government, to provide for the happiness and security of societies. An arbitrary prince will quickly grow into a tyrant; the uncontrolled dominions of the nobles will as certainly produce oligarchy, or the tyranny of a few; that is, pride, combination, and rapine in the sovereigns, and misery and dejection in the many; and the unrestrained licentiousness of the multitude will beget confusion and anarchy. To provide against these certain and eternal evils, mixed forms of government were invented; where dominion and liberty are so equally tempered, and so mutually checked one by another, that neither of them can have interest and force enough to oppress the other.

In language that would be echoed in another famous, pseudonymous letter, Cato lays out the advantages of this mixed form of government:

The nature and reason of this sort of government, is to make the several parts of it control and counterpoise one another; and so keep all within their proper bounds. The interest of the magistracy, which is the lot and portion of the great, is to prevent confusion, which levels all things: The interest of the body of the people, is to keep people from oppression, and their magistrates from changing into plunderers and murderers; the interest of the standing senate, which is, or ought to be, composed of men distinguishable for their fortunes and abilities, is to avoid ruin and dissolution from either of these extremes: So that, to preserve liberty, all these coordinate powers must be kept up in their whole strength and independency.

One might say ambition is to counteract ambition.

It is clear from the letters I’ve discussed thus far that the themes Cato touches upon would resonate for our liberty loving founders. In the next post, I’ll look at some letters which temporize this libertarian streak to some degree, and also in a way which would resonate years later in America.

So You Say You Want a Revolution

Getting back to my series on Cato’s Letters, written by John Trenchard and Thomas Gordon, we’re going to take a deeper dive into the subject matter which may have had the most influence on America’s revolutionary generation.

In the previous post, I discussed Cato’s writings about the origin of government. These writings had clear Lockean overtones. Cato’s views on revolution also had a very Lockean tone to them, though Gordon and Trenchard develop and build upon Locke’s theories and present a wide-ranging justification for revolution.

In the 25th letter, Cato writes about arbitrary power: “There is something so wanton and monstrous in lawless power, that there scarce ever was a human spirit that could bear it; and the mind of man, which is weak and limited, ought never to be trusted with a power that is boundless.” Cato adds, “The state of tyranny is a state of war.” For Cato, tyranny is a description of lawless governance where the ruler governs not for the good of his subjects, but for personal advancement. Even good men can become tyrants if they set themselves above the law. In other words, tyranny describes governance based on the arbitrary whims of the ruler rather than in observance of the laws.

Following the Lockean model, if men only enter into political society to guarantee their safety, arbitrary and tyrannical governance does not not merit obedience. While lawful rulers do merit loyalty, tyrants are assured of no such loyalty. From Letter 36:

To obey a prince, who does himself obey the laws, is confessed on all hands to be loyalty: Now, from hence, one would naturally think, that, by every rule of reason, it might be inferred, that to obey one who obeys no law, is a departure from all loyalty, and an outrage committed upon it; and that both he who commands, and he who obeys, are outlaws and disloyalists: And yet these same ungodly pedants shall maintain it to your face, that though loyalty consist in obeying a good prince, it also consists in the very contrary, and in obeying a wicked prince; who, though he be an enemy to God, is the vicegerent of God; and though he commit all wickedness, yet does it by divine right; and though it be a sin to obey him, yet it is a damnable sin to resist him: In short, that all the instruments and partners of his crying crimes are loyalists; and all who defend law, virtue, and mankind, against such monsters, are rebels, and assuredly damned, for preventing or resisting actions which deserve damnation: And thus men become rebels, by acting virtuously against the worst of all rebels, who are restrained by no consideration, human or divine.

In the 42nd letter, Cato would add there is no duty to obey unjust laws.

The violation therefore of law does not constitute a crime where the law is bad; but the violation of what ought to be law, is a crime even where there is no law. The essence of right and wrong does not depend upon words and clauses inserted in a code or a statute-book, much less upon the conclusions and explications of lawyers; but upon reason and the nature of things, antecedent to all laws.

This is language that would be echoed by our Framers, and all the way through the civil rights movement. Bad law, or law which violates natural rights, is no law at all.

He expands on this later in the letter:

But every man, who consents to the necessary terms of society, will also consent to this proposition, that every man should do all the good, and prevent all the evil, that he can. This is the voice of the law of nature; and all men would be happy by it, if all men would practice it. This law leads us to see, that the establishment of falsehood and tyranny (by which I mean the privilege of one or a few to mislead and oppress all) cannot be justly called law, which is the impartial rule of good and evil, and can never be the sanction of evil alone.

Then he writes:

The two great laws of human society, from whence all the rest derive their course and obligation, are those of equity and self- preservation: By the first all men are bound alike not to hurt one another; by the second all men have a right alike to defend themselves: Nam jure hoc evenit, ut quod quisque ob tutelam corporis suifecerit, jure fecisse existimetur [“For this comes from the law: that which someone does for the safety of his body, let it be regarded as having been done legally.”], says the civil law; that is, “It is a maxim of the law, that whatever we do in the way and for the ends of self defence, we lawfully do.” All the laws of society are entirely reciprocal, and no man ought to be exempt from their force; and whoever violates this primary law of nature, ought by the law of nature to be destroyed. He who observes no law, forfeits all title to the protection of law. It is wickedness not to destroy a destroyer; and all the ill consequences of self-defence are chargeable upon him who occasioned them.

This is, dare I say, revolutionary stuff. Cato (specifically in this case, Gordon) ties the first principles of government and argues that man is not obligated to follow laws which would do harm to his natural rights. Moreover, man has an affirmative obligation to overthrown an unjust ruler. Here he lays out, in clear language, that we have a natural right to revolution.

Many mischiefs are prevented, by destroying one who shews a certain disposition to commit many. To allow a licence to any man to do evil with impunity, is to make vice triumph over virtue, and innocence the prey of the guilty. If men be obliged to bear great and publick evils, when they can upon better terms oppose and remove them; they are obliged, by the same logick, to bear the total destruction of mankind. If any man may destroy whom he pleases without resistance, he may extinguish the human race without resistance. For, if you settle the bounds of resistance, you allow it; and if you do not fix its bounds, you leave property at the mercy of rapine, and life in the hands of cruelty.

In a sense, not only do we possess the right to rebel against unlawful authority, we have an obligation to do so lest further injustices are committed. He writes:

The law of nature does not only allow us, but oblige us, to defend ourselves. It is our duty, not only to ourselves, but to the society; Vitam tibi ipsi si negas, multis negas, says Seneca:[“If one denies life to oneself, one denies it to many.”] If we suffer tamely a lawless attack upon our property and fortunes, we encourage it, and involve others in our doom. And Cicero says, “He who does not resist mischief when he may, is guilty of the same crime, as if he had deserted his parents, his friends, and his country.”

The idea that revolution is a duty, not just a right, is a step beyond anything written by Locke. Locke justified the right of revolution, but only within very narrow parameters. Cato broadens Locke’s conception of the right of revolution to intimate that subjects are duty bound to resist unlawful tyrants. This would certainly have great reverberations fifty years later in the colonies. Indeed, if one considers what was at issue in the American Revolution, Gordon and Trenchard would seem to be of greater applicability than Locke. It is certainly a broader justification for the right of revolution than what is expressed even in the Second Treatise of Government.

Later on, in his 55th letter, Cato looks back on history to justify the overthrow of tyrants. Specifically, he lauds those who assassinated Julius Caesar. “Every body, I believe, will own, that when he first made war upon his country, his country had a right to make war upon him; and to destroy him, who fought to destroy them.” Not only were Caesar’s assassins meritorious, the greatest men in history have been those who slayed tyrants, and in doing so saved millions from abject servitude.

If we read the stories of the most celebrated heroes of antiquity (men of whom the present world is not worthy) and consider the actions that gained them their highest reverence and renown, and recommended their names to posterity with the most advantage; we shall find those in the first rank of glory, who have resisted, destroyed, or expelled tyrants and usurpers, the pests, the burdens, and the butchers of mankind. What can be more meritorious, what more beneficent to the world, than the saving of millions of men at the expense of one grand murderer, one merciless and universal plunderer? And can there be any better or other reason given for the killing of any guilty man, but the preserving of the innocent?

These ideas could certainly prove dangerous. Who gets to decide when a ruler is governing arbitrarily? Isn’t this an open invitation to anarchy?

In his 59th letter (already discussed in some detail in the previous post), Cato addresses this concern directly:

But here arises a grand question, which has perplexed and puzzled the greatest part of mankind: Yet, I think, the answer to it easy and obvious. The question is, who shall be judge whether the magistrate acts justly, and pursues his trust? To this it is justly said, that if those who complain of him are to judge him, then there is a settled authority above the chief magistrate, which authority must be itself the chief magistrate; which is contrary to the supposition; and the same question and difficulty will recur again upon this new magistracy. All this I own to be absurd; and I aver it to be at least as absurd to affirm, that the person accused is to be the decisive judge of his own actions, when it is certain that he will always judge and determine in his own favour; and thus the whole race of mankind will be left helpless under the heaviest injustice, oppression, and misery, that can afflict human nature.

But if neither magistrates, nor they who complain of magistrates, and are aggrieved by them, have a right to determine decisively, the one for the other; and if there be no common established power, to which both are subject; then every man interested in the success of the contest, must act according to the light and dictates of his own conscience, and inform it as well as he can. Where no judge is nor can be appointed, every man must be his own; that is, when there is no stated judge upon earth, we must have recourse to heaven, and obey the will of heaven, by declaring ourselves on that which we think the juster side.

These words have a certain resonance in our age. Rulers themselves cannot be the arbiters of the merits of their own actions. It thus comes down to the informed reason of subjects to judge for themselves. Their actions, in turn, will be judged by the Ultimate Judge: God Himself.

Cato (in this case, now Trenchard) thus argues that the governed have the right and duty to judge their rulers.

In truth, I think it is as much the business and right of the people to judge whether their prince be good or bad, whether a father or an enemy, as to judge whether he be dead or alive; unless it be said (as many such wise things have been said) that they may judge whether he can govern them, but not whether he does; and that it behoves them to put the administration in wiser hands, if he be a harmless fool, but it is impious to do it, if he be only a destructive tyrant; that want of speech is a disqualification, but want of humanity, none.

It’s instructive to note that in subsequent letters Cato writes forcefully against the idea of the “divine right of kings.” Kings were not appointed by God to rule over men. Instead, rulers were appointed by men to rule over men. If that is the case, then it is only right and natural that these same men can judge their rulers to be tyrants and lawfully overthrow them.

Cato further outlines what he deems to be arbitrary rule in the 63rd letter:

Such are arbitrary princes, whose laws are nothing but sudden fury, or lasting folly and wickedness in uncertain shapes. Hopeful rules these, for the governing of mankind, and making them happy! Rules which are none, since they cannot be depended upon for a moment; and generally change for the worse, if that can be. A subject worth twenty thousand pounds today, may, by a sudden edict issued by the dark counsel of a traitor, be a beggar tomorrow, and lose his life without forfeiting the same. The property of the whole kingdom shall be great, or little, or none, just at the mercy of a secretary’s pen, guided by a child, or a dotard, or a foolish woman, or a favourite buffoon, or a gamester, or whoever is uppermost for the day; the next day shall alter entirely the yesterday’s scheme, though not for the better; and the same men, in different humours, shall be the authors of both. Thus in arbitrary countries, a law aged two days is an old law; and no law is suffered to be a standing law, but such as are found by long experience to be so very bad, and so thoroughly destructive, that human malice, and all the arts of a tyrant’s court, cannot make them worse. A court which never ceaseth to squeeze, kill, and oppress, till it has wound up human misery so high, that it will go no further. This is so much fact, that I appeal to all history and travels, and to those that read them, whether in arbitrary countries, both in Europe and out of it, the people do not grow daily thinner, and their misery greater; and whether countries are not peopled and rich, in proportion to the liberty which they enjoy and allow.

Arbitrary rule is, in a sense, no rule at all. It is governance by the arbitrary whims of the king or prince rather than by the rule of law. Arbitrary rule being no just rule at all, once again, men are simply under no obligation to obey such a rule.

All men own, that it is the duty of a prince to protect his people; And some have said, that it is their duty to obey him, when he butchers them. An admirable consequence, and full of sweet consolation! His whole business and office is to defend them, and to do them good; therefore they are bound to let him destroy them. Was ever such impudence in an enlightened country? It is perfectly agreeable to the doctrines and followers of Mahomet: But shall Englishmen, who make their own laws, be told, that they have no right to the common air, to the life and fortune which God has given them, but by the permission of an officer of their own making; who is what he is only for their sakes and security, and has no more right to these blessings, nor to do evil, than one of themselves? And shall we be told this by men, who are eternally the first to violate their own doctrines? Or shall they after this have the front to teach us any doctrine, or to recommend to us any one virtue, when they have thus given up all virtue and truth, and every blessing that life affords? For there is no evil, misery, and wickedness, which arbitrary monarchies do not produce, and must produce; nor do they, nor can they, produce any certain, general, or diffusive good.

TL:DR version: Men do not have to obey the ruler who is harming them.

Having said all this, it would seem Gordon and Trenchard have delivered an open invitation to perpetual strife. As witnessed in our modern age, it is easy enough for individuals to claim they are being unjustly ruled. This would make all defiance of the law permissible so long as the individual claimed conscience protection.

Not quite. Gordon and Trenchard expect people to reach reasonable conclusions, and therefore they must be guided by right reason before deciding to rebel. More than a year after the letters outlined above were written, there was a period of turmoil as certain clergy and other disaffected religious minorities began clamoring for change within the Established Church. In his 129th letter, Cato firmly slams the door on the idea that any of their murmurings for revolution were in any way justified.

For God’s sake, Gentlemen, think what you are doing: Your lives, your estates, your religion, your conscience, your trade, your country, your honour, are all at stake, and you are wantonly throwing them all away; you are pursuing a false and miserable shadow; and it would be happy for you, were it only a shadow: In reality, you are going to catch in your embraces, superstition, beggary, and servitude. I approve your love and pursuit of liberty, which ever was, and ever will be, a grateful and charming sound in my ears; and I will be always ready to lead you, or to follow you, in that virtuous and noble pursuit. This is wisdom! This is honour! But honour is to be acquired by honourable means, and not by rapine, perjury, and murder.

In this particular case revolution would subject the people of Great Britain to worse rule. He urges the audience to recognize how blessed they are to be citizens of a free and prosperous country.

You are born, Gentlemen, to liberty; and from it you derive all the blessings which you possess. Pray, what affection have these your leaders ever shewn to the cause of liberty? It is plain that they have never taken the sacred sound into their mouths, but to profane it; nor pretended to cherish it, but in order to destroy it, and make it an unnatural ladder to tyranny. As often as dominion has been in their own hands, liberty became a crime, and a sign of sedition; and as often as they wanted to destroy power, that is, as often as they were out of it, they prostituted the spirit of liberty to the service of treason. Hence their late cries for liberty, to animate you against a government that protected it; and under the pretence of affecting liberty, to introduce a tyranny that would destroy the soul, body and property. They could, however, have made no dangerous progress in this mischief and hypocrisy, if those who have always professed, and whose interest it would have been always to have supported and practised, free and beneficent principles, had not deserted those principles, and armed by that desertion the enemies to all that is good and virtuous, with an opportunity of turning liberty upon herself. Let the real friends to the government support the maxims upon which it stands, and upon which only it can stand, and they have nothing to fear from the well or ill-grounded popularity of its enemies.

Though addressing a specific situation, Cato tempers the revolutionary spirit. It is not enough to merely feel downtrodden. One must soberly reflect upon his current situation. Then, and only then, can an individual or a people make a reasoned decision about revolution. Given the context of Great Britain at the time, any calls for revolution were thus unreasonable.

It can certainly be objected that Gordon and Trenchard have not adequately addressed concerns about the abuse of this right of revolution. They are leaving too much up to the arbitrary whims of subjects themselves. I would suspect that they would respond that a consequence of liberty is for people to get it wrong, but that the alternative would be far worse as it would be an invitation to continued tyrannical rule with no opportunity for redress.

Having said all that, I would argue that these words, more than any except those written by Thomas Paine, are the most important inspiration for the American revolutionaries.

The Misunderstood Genius of the Revolutionary Era

At some point I will write extensively about Hamilton. For now, please read this excellent profile by Don McClarey. It’s a magnificent summary of his life. It also has a picture perfect conclusion:

Poor Alexander Hamilton, the most misunderstood of the Founding Fathers. He was defamed by both John Adams and Thomas Jefferson in life, and had his life cut short before he could correct the record. The popular play about him gives a totally false representation of the man. None of this is too surprising. He was always a man ill suited for his time. He could see the industrialization of the US and the growth of the Federal government decades before almost any one else. He derived from his experiences in the Revolution, as did Washington, the evils of a too weak Federal government. His was a voice for the long term, and short term exigencies were always his downfall. Not half the politician that Jefferson was, he had a knack for making needless enemies. His personal scandal helped ensure that his enemies would ever have potent ammunition against him. A Greek tragedy, no, an American tragedy, of a life in many ways.

Go here to read the rest.

An Election Where Neither Party Can Be Happy

The media and the punditocracy like to weave neat narratives after every election, but I am not sure there is a neat narrative following this election, other than that neither party should be crowing about the results.

Contra President Trump, the Democrats winning a House majority is no victory for him and the GOP. It wasn’t a wave, but the entire wave terminology is only a narrative spinning device anyway. The Democratic win was probably big enough to ensure that Nancy Pelosi will become Speaker of the House once again, though that may wind up being a net negative for the Democrats in the end.

I’d note that Donald Trump is the first Republican president since Dwight Eisenhower to lose a House majority in his first term, except he’s only the second Republican president since Eisenhower to even have a House majority, and GWB’s first mid-term was the post-9/11 midterm, so it’s not exactly a fair comparison. It is also completely absurd to paint this is as being on par with Obama’s first midterm, especially considering the Senate and state results – but more on that in a moment. The net Democratic pickup is about half of what the GOP achieved in 2010, and many of those pickups could be easy GOP take backs depending on how 2020 goes.

That being said, the Democrats managed a fairly nice haul in the midst of dynamic economic growth. We’re practically at the point of what is essentially negative unemployment (more jobs open than people seeking them), and despite some blips in the market, the economy keeps generally humming along. There was also no massively unpopular GOP legislative measure for Democrats to run on. Sure they demagogued the tax cuts and it was unpopular in many quarters, but it hardly garnered as much negative heat as Obamacare. Speaking of which, though the GOP also created some heartaches by its efforts to reform Obamacare, it didn’t actually succeed. So if the Democrats could have as much success as they did in this environment, what happens if the economy takes a turn for the worse?

Republicans should also be very concerned about the suburban vote. It is the suburban vote that has carried them for the better part of a century, and it continues to slip away, and the Trump presidency may be hastening the turnover.

Yet Democrats can hardly be reassured themselves. Winning the House will give them more oversight power, but it’s absolutely possible, if not likely, that they will massively overreach. And did I mention Nancy Pelosi is probably going to be Speaker again? And while they can claim they have stalled the Trump legislative agenda, the obvious retort is: what Trump legislative agenda? Who really thinks anything of substance was going to pass in the next two years if Republicans had retained the majority? And even if the Democrats might be able to work with Trump to advance their own agenda, it doesn’t mean much because they got absolutely thumped in the Senate.

Yes, the Democrats always had a very challenging map, as they say, but if last night was going to be a massive repudiation of Trump, they should have been able to staunch the bleeding and at least keep the Senate close. Instead, the Republicans flipped Florida, Indiana, Missouri, North Dakota, and quite possibly Montana. Meanwhile, the Democrats achieved a pickup in Nevada, but that’s likely it. Arizona is still close, but it looks like McSally has the edge there.

And let’s face it: it was more important for the Senate to remain in Republican hands than the House. Cocaine Mitch is no doubt giddy that he has a comfortable margin to get judges confirmed, and will no longer have to sweat how Lisa Murkowski and Susan Collins will vote (not to mention Jeff Flake, who is gone and replaced by a presumably more iron-willed individual). That these were all comfortable Trump states should not mask the significance of these results, especially considering that some of these races were not as close as predicted, and it is always difficult to knock off incumbents, as Republicans have done it at least four and likely five states.

And of course there’s Beto. Sweet Beto. So many hopeful people cried tears last night, but most of those tears fell outside of the state of Texas, where once again Democrats looked something like this last night:

Lucy

There’s already a ton of talk about how this was a moral victory, and Beto is already a shining star who is a front-runner for the Democrats in 2020. And you know what: he probably is. But what does it say about the state of the Democrat party that one of its stars is a guy who lost a statewide race by three points after spending $70 million? That’s an awful lot of money to get a handful more votes than Ted Cruz’s last opponent. I’m not sure John Tester, Ben Nelson, and Claire McCaskill are sharing in this enthusiasm this morning.

Then again, perhaps progressives should feel good about Beto’s loss. After all, many of them have spilled a lot of digital ink crying about the pernicious influence of money in politics, so Cruz’s victory should be a reassuring sign that money isn’t everything in politics. Huzzah for the outspent underdog!

The state races are a mixed bag. Democrats did win a few governorships, including Wisconsin, where Scott Walker was finally narrowly defeated. But in three substantial states, the Republicans retained control, and in two cases by a wider margin than anticipated. Georgia, like Texas, is supposed to be a red state where the demographics are trending blue, but once again, the statewide results show otherwise. Georgia may get there, but it’s got a ways to go.

The Ohio and Florida elections are the most important results. Not only did Republicans narrowly carry both the Senate and governor’s races in Florida, but Mike Dewine had a fairly comfortable win in Ohio. This matters quite a lot for 2020, and I’ll get to that in a moment. What’s more, even Sherrod Brown had a much closer race than anticipated. Ohio is looking less and less like a swing state, and more like a fairly solid Republican state at this point. It is the flipside of Virginia, which is only a purple state if there is a shade of purple that lacks any red.

As for the portents for 2020, I’ve already alluded to some of them. A Democratic win actually gives Donald Trump a more effective foil. How the Democrats act in the majority will go a long way in determining Trump’s path to re-election. And while much was made of the rough night Republicans had in the rust belt, particularly in Wisconsin, Michigan, and Pennsylvania, I’m not so sure that the results were that ominous for the GOP. Pennsylvania was indeed a wipeout for the Republicans, and that is likely going to be the toughest state for Trump to defend in 2020. But Michigan and Wisconsin are different stories. The House results were not as tumultuous there for Republicans, and as I mentioned, Walker narrowly lost. Debbie Stabenow also had a closer than anticipated call against John James (who had 1/1000 the media attention of Beto and about 1/100 the money). Minnesota, meanwhile, feels a bit like the GOP version of Texas and Georgia: so many expectations, but not so many wins. And I already mentioned Ohio, which I’m not even sure can be considered a true battleground state.

Long story short, reading tea leaves off of election results is always a risky venture, but perhaps never more so than after last night. Either way, no partisan should be feeling completely great after last night.

Well, feel good about Ted Cruz and Larry Hogan, but that’s about it.

Cato and the Origins of Government

Thomas Gordon and John Trenchard, aka Cato, covered a lot of ground in three years, but several themes kept-emerging, and would sound familiar to students of early American political thought. This post will cover Cato’s musings on the origins of civil society, and the purposes for which man consents to be governed by others.

There are certainly echoes of John Locke in Cato’s writings, though neither Gordon or Trenchard delve as deeply into the concept of the state of nature as does Locke or even Hobbes. But Cato sees the origins of government in Lockean terms. In the 11th letter, Cato (here Gordon) writes*:

Salus populi suprema lex esto: That the benefit and safety of the people constitutes the supreme law, is an universal and everlasting maxim in government; It can never be altered by municipal statutes: No customs can change, no positive institutions can abrogate, no time can efface, this primary law of nature and nations. The sole end of men entering into political societies, was mutual protection and defence; and whatever power does not contribute to those purposes, is not government, but usurpation.

This minimalist interpretation of the origins of political society is certainly in accord with a Lockean conception of government. Yet Cato concedes that governments may retain the power to punish transgressions which are not statutorily unlawful. Rogues may devise ways to violate “the laws of God and nature” that nations do not have the foresight to prevent. Nations should not be powerless to punish these transgressions, as England’s legislature has done, though only in extraordinary circumstances. “Jove’s thunderbolts were only launched against such as provoked the thunderbolts of Jove.”

Nonetheless, punishing transgressors of the law is the primary purpose for which governments are instituted, a sentiment repeated in the 20th letter: “Parcere subjectis & debellare superbos; to pay well, and hang well, to protect the innocent, and punish the oppressors, are the hinges and ligaments of government, the chief ends why men enter into societies.”

Considering the limited aims of government, personal liberty is at a maximum in Cato’s conception of civil society. In future posts we’ll look more closely at Cato’s views on freedom of speech and religion, but for now we’ll just look at the principles Cato lays down, best expressed in letter 62:

By Liberty, I understand the Power which every Man has over his own Actions, and his Right to enjoy the Fruit of his Labour, Art, and Industry, as far as by it he hurts not the Society, or any Members of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys. The Fruits of a Man’s honest Industry are the just Rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is sole Lord and Arbiter of his own private Actions and Property.–A Character of which no Man living can divest him but by Usurpation, or his own Consent.

The entering into political Society, is so far from a Departure from his natural Right, that to preserve it was the sole Reason why Men did so; and mutual Protection and Assistance is the only reasonable Purpose of all reasonable Societies. To make such Protection practicable, Magistracy was formed, with Power to defend the Innocent from Violence, and to punish those that offered it; nor can there be any other Pretence for Magistracy in the world. In order to this good End, the Magistrate is intrusted with conducting and applying the united Force of the Community; and with exacting such a Share of every Man’s Property, as is necessary to preserve the Whole, and to defend every Man and his Property from foreign and domestick Injuries. These are the Boundaries of the Power of the Magistrate, who deserts his Function whenever he breaks them. By the Laws of Society, he is more limited and restrained than any Man amongst them; since, while they are absolutely free in all their Actions, which purely concern themselves; all his Actions, as a publick Person, being for the Sake of Society, must refer to it, and answer the Ends of it.

This is perhaps an even more libertarian conception of government than Locke’s. Indeed, later on this letter Cato develops a very narrow view of permissible governmental action.

And it is as foolish to say, that Government is concerned to meddle with the private Thoughts and Actions of Men, while they injure neither the Society, nor any of its Members. Every Man is, in Nature and Reason, the Judge and Disposer of his own domestick Affairs; and, according to the Rules of Religion and Equity, every Man must carry his own Conscience. So that neither has the Magistrate a Right to direct the private Behaviour of men; nor has the Magistrate, or any body else, any manner of Power to model People’s Speculations, no more than their Dreams. Government being intended to protect Men from the Injuries of one another, and not to direct them in their own Affairs, in which no one is interested but themselves; it is plain, that their Thoughts and domestick Concerns are exempted intirely from its Jurisdiction: In Truth, Mens Thoughts are not subject to their own Jurisdiction.

Idiots and Lunaticks indeed, who cannot take Care of themselves, must be taken Care of by others: But whilst Men have their five Senses, I cannot see what the Magistrate has to do with Actions by which the Society cannot be affected; and where he meddles with such, he meddles impertinently or tyrannically. Must the Magistrate tie up every Man’s Legs, because some Men fall into Ditches? Or, must he put out their Eyes, because with them they see lying Vanities? Or, would it become the Wisdom and Care of Governors to establish a travelling Society, to prevent People, by a proper Confinement, from throwing themselves into Wells, or over Precipices; Or to endow a Fraternity of Physicians and Surgeons all over the Nation, to take Care of their Subjects Health, without being consulted; and to vomit, bleed, purge, and scarify them at Pleasure, whether they would or no, just as these established Judges of Health should think fit? If this were the Case, what a Stir and Hubbub should we soon see kept about the established Potions and Lancets? Every Man, Woman, or Child, though ever so healthy, must be a Patient, or woe be to them! The best Diet and Medicines would soon grow pernicious from any other Hand; and their Pills alone, however ridiculous, insufficient, or distasteful, would be attended with a Blessing.

It’s easy to see why the Cato Institute may have chosen its name. Essentially, according to Cato, as long as a man is not harming anyone else, government should not interfere in his actions. Considering this narrow prescription, governments that step outside of their lawful authority become illegitimate. Circling back to the 59th letter, Cato writes:

All governments, under whatsoever form they are administered, ought to be administered for the good of the society; when they are otherwise administered, they cease to be government, and become usurpation. This being the end of all government, even the most despotick have this limitation to their authority: In this respect, the only difference between the most absolute princes and limited magistrates, is, that in free governments there are checks and restraints appointed and expressed in the constitution itself: In despotick governments, the people submit themselves to the prudence and discretion of the prince alone: But there is still this tacit condition annexed to his power, that he must act by the unwritten laws of discretion and prudence, and employ it for the sole interest of the people, who give it to him, or suffer him to enjoy it, which they ever do for their own sakes.

Man is naturally born in a state of liberty, and he cannot alienate this freedom by consent. The magistrate has a narrow scope under which he can punish.

The right of the magistrate arises only from the right of private men to defend themselves, to repel injuries, and to punish those who commit them: That right being conveyed by the society to their publick representative, he can execute the same no further than the benefit and security of that society requires he should. When he exceeds his commission, his acts are as extrajudicial as are those of any private officer usurping an unlawful authority, that is, they are void; and every man is answerable for the wrong which he does. A power to do good can never become a warrant for doing evil.

This is, once again, a fairly Lockean conception of government. We enter into civil society and convey to the magistrate the right to punish transgressors of the law – those who violate the property and personal rights of others. Beyond this, the magistrate’s power is quite constrained.

This brings us to the precipice of a central question: what recourse do citizens have if the magistrate exceeds his rightful authority? Cato’s answer to this question is one which would reverberate decades later in colonial America, and we’ll address that in the future as well. In the meantime, observe what Cato has to say on restraining the natural impulse of magistrates to exceed their authority in letter 60:

The only Secret therefore in forming a Free Government, is to make the Interests of the Governors and of the Governed the same, as far as human Policy can contrive. Liberty cannot be preserved any other Way. Men have long found, from the Weakness and Depravity of themselves and one another, that most Men will act for Interest against Duty, as often as they dare. So that to engage them to their Duty, Interest must be linked to the Observance of it, and Danger to the Breach of it. Personal Advantages and Security, must be the rewards of Duty and Obedience; and Disgrace, Torture, and Death, the Punishment of Treachery and Corruption.

Cato will repeat this theme frequently in his letters. If rulers govern for their own sake, and care only for their own gain, then they will be prone to abusing their authority. As long as magistrates are concerned primarily with the common good, then the governed will have less to fear.

What’s notable about these letters and their conceptions of the origin of government is how much they presage the Framers. It is impossible not to hear echoes of Publius in these words, or in the words quoted further up above regarding “checks and restraints appointed and expressed in the constitution itself.”

These are radical words: perhaps more radical than Locke, and certainly more radical than Hobbes. This is a libertarian vision of government in which the sovereign authority is extremely constrained, and where checks and limits of said authority are ingrained in the constitution. Hobbes would not have countenanced such a limit on the sovereign’s authority, whereas Cato has made clear that abuses of the sovereign authority justify revolution. But more on that next time.

* The text I am using has kept much of Cato’s original grammatical structure.

Origin Story

It’s time explain the man behind my blogging name, as well the inspiration for the blog’s title.

Cato the Younger’s full name was Marcus Porcius Cato Uticensis – but his friends just called him Cato. He was a Roman citizen born in the final century before Christ. He was a well-educated stoic who fought in the war against Spartacus, and who later served as a tribune. His fame, though, stems from his opposition to Julius Caesar. He was one of the leading voices calling for Caesar’s removal as preconsul, and unsuccessfully commanded forces in the civil war to beat back Caesar. Cato wound up in Utica, and in 46 BC committed suicide.

Cato’s name has passed through history as symbol of republicanism and opposition to tyranny. Several founding fathers used his name as a pseudonym writing political tracts in the pre-revolutionary era, and by anti-Federalists opposing the constitution.

The “letters” from Cato that inspired the name of this blog, however, were written by John Trenchard and Thomas Gordon. The two men were “country” Whigs who wrote about corruption, the dangers of tyranny, freedom of religion, and other “libertarian” values.

Gordon and Trenchard wrote a series of 144 letters published in The Independent Whig from 1720-1723 under the name “Cato.” The original impetus for their letters was the bursting of the South Sea bubble and the financial crisis it precipitated. Thus their first few letters focused on the corruption of the English government, and attacked the speculators and financiers who imperiled the country’s finances through their backroom bargaining.

But the letters move beyond this subject into fierce polemics concerning basic premises of political philosophy. They delve into Lockean natural rights theory, but move beyond Locke into hearty defenses of civic republicanism. As I will discuss in later posts, they are both very concerned about civic virtue, thus contra Patrick Deneen, they promoted a brand of liberalism that was not at all indifferent to public morality. They were also low Church Protestants who wrote savagely of the Catholic Church – or rather the Papist sect, and I will also delve into that in later posts as well.

So why should we care? Many who have studied the foundations of American political thought, including Forrest McDonald, have written of the influence Cato’s Letters had on the founding generation. While the influence of this or that thinker on early American political thought is often overstated – never more so than with John Locke – it is difficult to avoid the conclusion that Americans were indeed widely influenced by Cato, aka Gordon and Trenchard. Even though Gordon and Trenchard were themselves influenced by Locke, as already alluded to, they go beyond Locke and establish what I would term a brand of liberal civic republicanism, emphasizing the importance of property rights, freedom of speech, the right of revolution – and even the limits thereof.

Therefore, I think examining Cato’s Letters provides a clear distillation of both English and American republican thought in the 18th century. The next several posts will summarize the key elements in these letters, and what their influence on American thought means for our country’s origins.

Against the Filibuster

There’s a meme that goes around Twitter every now and again: express your unpopular opinion. Based on conversations I’ve had through the years, my views on the filibuster might be unpopular with large swathes of the right and probably even the left.

I’ve never been comfortable with the filibuster. The 60-vote threshold seemed like an especially onerous and unfair threshold when it came to judicial appointments, and I advocated nuking the filibuster long before Harry Reid helpfully did so a few years ago. Therefore, I was happy when Harry Reid and the Democrats abandoned the judicial filibuster, and not just because I knew then it would eventually come back to bite them on the ass.

But the filibuster’s artificial 60-vote threshold seemed unfair even when it came to ordinary legislation. While it is not unconstitutional, it is certainly an extra-constitutional mechanism. Sure, the Senate is free to set its own rules, and the constitution’s language doesn’t prohibit a higher floor either in the context of the Senate’s advice and consent role or for legislation to be deemed as passed by the Senate. Yet it seemed then, and still seems now an extra barrier to getting things done.

Conservatives in particular view the filibuster as a device that works in the interests of limited government. And whichever party happens to be the minority at the moment values the filibuster as a mechanism to help preserve their interests. But the constitution itself is already a document designed to slow the machinery of government. The filibuster is a cheat, and arguably does more to diminish reliance on these other constitutional designs. For instance, the higher threshold to get legislation through the Senate could lead (and has lead) presidents to make end-runs around Congress. In these cases, the filibuster not only doesn’t prevent whatever ill-considered action from going through, it promotes other unconstitutional behavior from the president. It also eliminates the opportunity for compromise that would minimize the potential deleterious effects of ill-advised action.

The filibuster is also unevenly applied. Depending on the specific type of legislation under consideration, it may not even be applicable. Now it no longer is available in the context of judicial nominations. This just leads to more parliamentary maneuvering that further undermines faith in the legislative process.

As alluded to above, reliance on the filibuster draws attention away from other constitutional mechanisms designed to restrain the government. The concentration of power in the executive and judicial branches is a much more serious threat to our constitutional order. If anything, the filibuster might prevent reforms from being enacted to address those concerns. The filibuster, especially if a conservative majority ever emerged in the Senate (I won’t hold my breath), actually would become a tool of the very administrative state we’re supposed to be fighting.

The filibuster is really designed to ensure debate takes place on contentious issues. I would have no problem with a system in which failure to invoke cloture simply meant debate would continue for some amount of time. But real debate would have to take place. Then, after the pre-determined period elapsed, a vote would occur regardless of whether the 60-vote threshold is met.

I thus have no problem with the filibuster as a means of slowing down the process to allow for more debate and potential compromise. It should not be an artificially high upper threshold meaning nothing gets by the Senate without a super-majority.

On the Death of Liberalism

Last week I finally had the opportunity to read Patrick Deneen’s Why Liberalism Failed, a book that had been on my “to read” list for several months now.

Understand that Deneen’s critique includes classical liberalism – the liberalism of our Framers and which has influenced many on the right today.

I’m not going to write a critique of the book. National Review has published several reviews of and rebuttals to the book, and Jonah Goldberg wrote a comprehensive G-File on the subject (and was also on a panel with Deneen a couple of weeks back debating the topic). I agree with most of the critical takes on Deneen, and would add only a few sparing thoughts.

The book is a bit disappointing, frankly. I expected to disagree with much of Deneen’s argument, but expected, based on the hype, a more thorough and systematic argument than Deneen presented. Deneen’s treatment of the subject was shockingly shallow. He seemed content to make sweeping generalizations about the thinkers he cited, as though he assumed that those generalizations were self-evidently true. For instance he writes of the “utopianism” of the liberal enlightenment tradition. He makes no distinction between French and Scottish/British enlightenment writers. But has anyone who has seriously studied the works of, say, David Hume, ever considered him a utopian?

Furthermore, Deneen makes the same mistake other critics of the Framers make: assuming theirs is a sort of value-less liberalism unconcerned with virtue. Thomas West’s Theory of the American Founding is a good rebuttal to this theory (not to Deneen directly), as is the David French review I linked above.

As I said, though, this is not a critique of the book per se. Rather, I’d like to focus on a couple of aspects of the book that fascinate me. First of all, Deneen’s critique of liberalism, root and branch, is a common one in both left-wing and right-wing Catholic circles. Anthony Annett, who used to blog under the handle Morning’s Minion, routinely disparaged the pernicious influence of liberal thought (or what he perceived liberal thought to be) on modern Catholic political thinking. R.R. Reno indirectly attacked the liberal tradition in his (really wide of the mark) critique of Jonah Goldberg’s Suicide of the West.

Michael Brendan Dougherty also notices this trend:

Why have we come to this point? Some Catholic political thinkers — Patrick Deneen comes to mind — have energetically argued that this is the inevitable outcome of liberalism itself. That political liberalism makes false promises, holding out the possibility of liberty and pluralism but ultimately demanding conformism. Predictably enough, a subset of younger Catholics are re-evaluating the work of their co-religionist elders who made various terms of peace with liberalism, men such as Michael Novak and George Weigel. Like the English thinkers G. K. Chesterton and Hillaire Belloc, the younger, more-radical thinkers turn to Catholic social teaching or to the popes for guidance on political and economic matters. Some, calling themselves integralists, say that it’s past time to give up arguing for our claims under the guise of natural law. Instead, we should make our claims unabashedly for the social kingship of Christ.

MBD urges that instead of liberalism being at fault, these Catholics need to take a closer look inside the Church.

Catholics operate a massive portion of the U.S. health-care industry, a significant part of the nation’s university system, and a vital part of its charitable foundations. But Catholic citizens have socially conformed themselves to the American norms set by Protestant faiths. Catholic birth and divorce rates have, respectively, moved toward Protestant norms. In their catechisms, many Protestant denominations have accepted abortion and homosexuality as moral goods. And many prominent Catholic personalities — even those with imprimaturs of Catholic bishops — are urging Catholics to do likewise. This phenomenon practically invites the public authority to test the commitment of Catholics to their distinct set of doctrines.

And here then is another modest suggestion. The more urgent need for the Church’s liberty in the United States may not demand an attempt to transcend 500 years of a mistaken political philosophy. Instead it may be a matter of looking at a decades-long problem of disaffection and apostasy. The Church also suffers from a massive scandal of immorality and criminality among its prelates. These crimes, so long unaddressed by higher authorities in the Church, manifestly call into question not just the Church’s commitment to its doctrines but its fitness to lead so many civic institutions and to control so many resources. Are America’s Catholic bishops conducting themselves “as worthy members of the community?” And if not, can we expect their religious liberty to remain sacrosanct?

If the Church recovered its vigor and its authority internally, then the neighbors with whom it lives peaceably, and among whom we do so many good works, would be less inclined to test our commitments, or our patience. The social Kingship of Christ may proceed to impose duties upon all nations, but it begins with the words: Physician, heal thyself.

I think MBD is largely correct, but I would also emphasize the almost strawman-like mischaracterization of what classical liberalism is as being a detriment to serious Catholic engagement with the philosophy. As long as Catholic writers of both the left and right treat this sort of liberalism as a kind of hedonistic, amoral philosophy unconcerned with civic virtue, then I don’t think we can have a meaningful conversation about topic.

I’m also intrigued by Deneen’s argument that individualism can lead to statism/authoritatrianism, because I think he has a much stronger case here (although he never quite develops it as much as he could have). I’ve posited that Jeffersonian style individualism naturally progresses to statism. Though Jefferson had an appreciation for civic virtue, his basic philosophy eschewed many of the traditional components of society, including the concept of abiding by perpetual constitutions. When Jefferson’s radical conception of perpetual revolution is married to his extreme libertarian ethos, it’s no surprise when a rootless society emerges in which individuals are left isolated, dependent primarily on the government as a source of moral guidance.

The problem, again, is that Deneen takes his axe and swings it wildly against all forms of classical liberalism. He takes no notice of the significant differences in the liberalism of Jefferson on one hand, and Madison and Hamilton on the other. This inability to distinguish between the fine contours of different strands of liberalism mars what could have otherwise been a valuable contribution to political dialogue. Alas.