George Will’s Natural Rights Judicial Philosophy

George Will has established a reputation for being an idiosyncratic thinker, and in his masterful new tome, The Conservative Sensibility, Will demonstrates this idiosyncrasy in his chapter on judicial philosophy. Will rejects originalism, preferring instead what could be described as libertarian or natural rights activism. Will chides originalists for bowing to legislative majorities – state or federal – unless they have clearly circumvented the constitutional text. Will argues that the judiciary should be active guardians against encroachments of the natural rights of citizens.

Will’s approach is reflected in his discussion of Brown vs. Board of Education. He dismisses the Warren court’s rationale for overturning the separate but equal doctrine established in Plessy vs. Ferguson. The Warren court’s decision was seeped in social psychology, twisting itself to find a justification for its decision.  Brown has been a source of dissension among some conservatives. For instance, Michael McConnell agrees with the outcome but not the rationale, while others think that – lamentably – there really was no originalist justification for the outcome (a point many progressives make in attempting to debunk originalism in toto).

Will casts aside all of these approaches and instead postulates:

The threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the Court’s conclusion in Brown; the conclusion invalidates any theory that rejects it. If a theory of constitutional interpretation cannot find in the document’s text, when the text is construed to serve the document’s purpose of framing a government that secures natural rights, grounds for striking down racial segregation in schools, a practice facially inimical to equal enjoyment of the blessings of liberty, then this theory must be discarded.

Will follows up with an important framing of his basic constitutional philosophy: “The phrase the ‘blessings of liberty’ is of course from the Constitution’s Preamble. But the Preamble is not a mere decorative filigree on the Constitution. It is a statement of the objectives of all that follow.”

To Will, the Constitution “is John Locke’s political philosophy translated into institutional architecture.” He thus views the Constitution as the written document making concrete the principles established in the Declaration of Independence. He echoes Abraham Lincoln in calling the Declaration the “apple of gold,” surrounded by the “frame of silver” which is the Constitution.

Will sides with Randy Barnett in professing what Ilan Wurman (A Debt Against the Living: An Introduction to Originalism) describes as “libertarian originialism.” The case which distinguishes Barnett and Will from most originalists is Lochner vs. New York, the 1905 Supreme Court case involving a New York state law limiting worker hours. In a decision Will applauds, the Court overturned New York’s law, invoking the idea of the “liberty of contract.” This is a right that is not enumerated specifically in the Constitution, but which is implied via the Ninth Amendment.

In supporting the Lochner court’s decision, Will accepts a concept anathema to many conservative originalists: substantive due process. Will writes, “The Due Process Clause, properly construed, prohibits arbitrary government actions, particularly actions that unjustifiably restrict individuals’ liberties. The Due Process Clause is not purely about process.”

This reading of the due process clause would animate many Supreme Court decisions over the next three decades. These cases generally centered on economic questions. It was not until FDR appointed an entirely new court over his tenure in office that substantive due process would die a sudden death, only to be revived by the Warren court, only this time generally to protect socially libertarian ideas.

Will also does not completely dismiss the idea of a constitution as a living, breathing document. Will himself uses the term “living originalism,” a term coined by Jack Balkin. He quotes Balkin’s description: “In every generation, We the People of the United States make the Constitution our own by culling upon its text and its principle and arguing about what they mean in our own time.” The prohibition against cruel and unusual punishment is used as an example. What was considered “cruel and unusual” in 1789 America is not the same as what would be considered cruel and unusual in 2019. Each generation can read the constitutional intent in light of new revelations and modes of thinking. This differs from progressive judicial activism because the constitution would still be interpreted to support a Madisonian respect for natural rights, just with a more modern flavor.

Will lambasts the conservative originalist approach because it is far too deferential to majorities. He specifically calls out Antonin Scalia’s dissent in Lawrence v. Texas, where the majority struck down Texas’s anti-sodomy laws. Will accuses Scalia of being a majoritarian, and decries the originalist impulse to defer to legislative majorities.

There are thus two principles which underlay Will’s judicial philosophy: a defense of natural rights, and a suspicion of majoritarianism. While there is some division within conservative circles, both of these ideas are within the mainstream of traditional conservative thought, particularly the anti-majoritarian impulse. Will is on solid ground in citing Madison and the Framers and their distrust of majorities and the damage that unrestrained majorities could wreck on our republic. Neither of the principal authors of the Federalist Papers – Hamilton or Madison – were exactly Jeffersonian democrats. (Madison may have forged a political partnership with Jefferson, but he never shared similar philosophical ground with Jefferson when it came to ideas such as democracy and the permanency of the constitution.)

Will might encounter more resistance to his passionate advocacy of natural rights. Again, though, he is on generally solid ground in interpreting the Framers as being natural rights advocates. Thomas West, in The Political Theory of the American Founding, does a convincing job of demonstrating the Framers’ commitment to natural rights, sorting through varied and various writings to demonstrate this propensity.

Yet there are three fundamental issues with this judicial philosophy. Neither one is perhaps lethal to Will’s argument, though in combination they suggest that it is not an approach conservatives should take.

The first issue with manifests itself is that of states’ rights, a concept Will himself defends in the book. Leaving aside the judiciary’s rulings on federal matters, absent a clear contradiction of the constitutional text and meaning, a philosophy of judicial restraint with regards to state laws would be not only sensible, but in fact would be the correct way to honor the Framers’ intent as Will calls us to do.

Will defends this seeming tension with respect for state sovereignty by noting that states cannot abrogate the constitution. That is certainly true. Obviously no state can take it upon itself to legalize slavery, which is clearly prohibited by the 13th Amendment. Will wants to go a step further to recognize that the Ninth Amendment is not just an empty set of words, and establishes a principle for supporting rights not clearly laid out in the Bill of Rights and the Constitution in general.

The problem for Will is that the Constitution is a document meant to lay out the rules for the federal government, and not the states. As originally drafted and ratified, there was very little in the constitution that directly impacted and/or curtailed state actions. The republican guarantee and commerce clauses, for instance, constrained state actions. Otherwise, the Constitution was meant to enumerate (and limit) the powers of the federal government.

The reluctance to superimpose a federal viewpoint over the states is best demonstrated by the convention’s rejection of Madison’s proposal for Congress to have a veto over state laws, a veto Madison thought to be essential for the Constitution to have any teeth. Initially it was generally supported, but as the convention wore on, more delegates – particularly from the small states – argued against this provision, and it ultimately went down to defeat. Madison greatly lamented this, and he thought the lack of such a provision was one of the severest flaws in the Cconstitution.

But even Madison’s advocacy of a veto over state laws stemmed largely from his fear of state interference with federal laws. He didn’t begrudge the states from passing their own laws per se, but rather worried that certain state laws would contradict federal action. Thus even this proposal is less about protecting natural rights and more about protecting the federal government from state encroachment.

Will would rightly counter that the 14th Amendment changed the relationship of the Constitution to the states, at least in practice. He laments the Court’s Slaughterhouse decision, which practically nullified the privileges or immunities clause. But the due process clause has been used to bring the states to heel on a number of issues, and has essentially federalized the Bill of Rights. The question conservatives have to tackle is: how much power do the states retain?

This leads to the second problem with Will’s approach. Progressives mock originalism by contending that it turns judges into historians. A conservative could contend that Will’s natural rights approach turns judges into philosophers, arguing over the meaning of natural rights.

Many (though not all) on the right would agree with Will about the natural rights inclinations of the Framers. Natural rights advocates also believe that we’re constantly discovering what our natural rights entail. And that’s the rub. While a natural rights reading of the Lochner decision could stand upon the idea of the liberty of contract, it is not implausible to picture a progressive natural rights reading of the New York law as supporting the legislation. FDR’s “four freedoms” should provide insight into how a much different concept of natural rights would lead to outcomes Will – and conservatives – would very much disapprove of. Though I agree with Will’s natural rights reading of the Lochner decision and the liberty of contract, it’s not at all far-fetched to see a much different philosophy of natural rights reaching the opposite conclusions.

It’s commendable that Will recognizes that the Ninth Amendment and the privileges or immunities clause of the 14th Amendment are still parts of the Constitution, but how much power to interpret the meaning of those clauses in light of natural law should we give the courts? That leads us to the final objection. While Will again should be commended for not taking the easy conservative path of bashing the courts and questioning the judicial branch’s legitimacy, and is correct in highlighting the anti-majoritarian impulse of the Framers, this approach tilts the balance far too much towards the judiciary.

Conservatives have an uneasy relationship with democracy. I am certainly guilty of being reflexively anti-majoritarian. But we run the risk of going too far in our – let’s call it suspicion of democracy, or at least the democratic aspects of republicanism.

But it is, nonetheless, a republican form of government the Framers created and we’re trying to keep. And what is a republican government? According to Madison, in Federalist 39:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

This broad definition doesn’t necessarily lead us to a satisfactory conclusion as to the rightful powers of the judiciary, but it indicates Madison’s frame of mind. Suspicious as he was of democratic majorities and of state power in general, he recognized there had to be an element of popular choice. Ultimately the people of the United States are sovereign. That sovereignty may be expressed in incompletely democratic forms, and the judiciary is itself a tangential product of popular sovereignty, as they are appointed by (indirectly) elected presidents and confirmed by (indirectly, at the time) elected Senators, and served during good behavior (thus subject, theoretically, to impeachment).

Though we created a republican government with limited democratic forms, there is a general sense that the genius (to borrow from Madison) of the people requires some aspect of popular choice and control. An unelected judiciary consistently overturning legislative majorities based on philosophy rather than the constitutional text will only embitter the citizenry, especially if it feels it has no ability whatsoever to undo the judiciary’s actions. This notion of almost complete judicial supremacy over the legislature, one which extends beyond the original concept of what the judicial branch was intended to be, goes well beyond simple anti-majoritarianism and is seemingly at odds with the very core of our national identity.

That’s not to say there isn’t a good deal of merit in Will’s advocacy of greater judicial activism. First of all, the term judicial activism, like so many political terms, has been abused to the point it merely means “Courts rendering decisions I don’t agree with.” And Will is right to urge courts to adjudicate based on the constitution. In other words, judicial restraint can itself be a form of political activism. For example, John Roberts deciding to find a curious rationale for upholding Obamacare was almost certainly motivated by his desire to restrain the Court from becoming involved in a political debate. Yet this decision itself was political, and lacked any defensible constitutional merit. Judges should judge, and then they may let the political chips fall where they may.

In general, Will isn’t far afield of the Famers. Though Will takes his cues from Madison, it is perhaps unsurprisingly Alexander Hamilton who comes closer to providing support for Will’s judicial philosophy. As Hamilton writes in Federalist 78, “[the judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.” Hamilton adds:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This supports Will’s counter majoritarian argument. Hamilton here expresses the idea that judges must rule against democratically elected legislators when the latter act against the Constitution. But only the most ardent majoritarian would dispute that. The question remains: how do we know precisely when legislators have acted in defiance of the Constitution? And which aspects of the Constitution apply to state legislators? Hamilton provides something of an answer in Federalist 80:

It seems scarcely to admit of controversy, that the judicial authority of the Union ought to extend to these several descriptions of cases: 1st, to all those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the PEACE of the CONFEDERACY, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.

The first point is most relevant here. As Hamilton explains, “What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government.”

It is this last point which resounds: the principles of good government. It is sufficiently vague to countenance a higher degree of judicial interference in state affairs than one would have imagined by the plain text of the Constitution. But again, this doesn’t quite provide a wholly satisfactory answer. State laws that contravene the Constitution should be declared null by the federal judiciary. But what of laws that run amok against “the principles of good government?”

Hamilton even addresses the privileges and immunities clause of Article IV, but here the reference is to states violating the rights of citizens from other states. This does not address internal laws impacting the state’s own citizens.

Will is on solid ground in defending the importance of an independent judiciary. Conservative frustration with court decisions has led many to call for reforms, some of which would strip the courts of their independence, or would limit their jurisdiction. While understandable, it is as true today as it was over two centuries ago that there must be an independent branch of government acting as a barrier against untrammeled majoritarianism.

But Will goes further than that. It would be an exaggeration to suggest Will is proposing the courts act like a council of ephors, but not much of one.

In a sense, Will is contradicting his own philosophy, and not just because this is a nationalistic judicial philosophy disruptive of state’s rights. As a libertarian-conservative, Will understands that human nature cannot be perfected, and that not all social ills can be corrected or cured. His is an anti-utopian philosophy. Will is also rightly at odds with the “post liberal” strand of conservatism which is so much in vogue, precisely because it has the faintest whiff of utopianism. Yet Will’s vision of an omnipotent judiciary acting as the guardian of natural rights is also semi-utopian. States may err in judgment and pass laws offensive to libertarian sensibilities. But just as post-liberals don’t seem to recognize the dangers of giving the government more power to discern “the good,” Will doesn’t seem to fully appreciate the dangers of giving the judiciary the unrestrained authority to declare what does and does not accord with natural rights. A court so fully invested with such a power may not act in strict accordance with libertarian principles. Just as conservatives should appreciate the importance of pluralism in acting as a safeguard for their practice of their values, a “libertarian orginalist” ought to appreciate the necessity of judicial deference. The alternative system may look a lot different than what is hoped for.

George Will has left us what an important contribution to the world of not just conservative thought, but political philosophy in general. His defense of natural rights and an independent judiciary, along with his anti-majoritarian impulse are all important countertrends to what we see in much of the conservative movement today. His judicial philosophy may place too much trust in the Solomonic wisdom of judges, but it is a worthwhile contribution and important guidepost.

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Conservatism Undefined

It’s a battle over the true meaning of conservatism, and for once it doesn’t solely involve individuals on the right.

Kevin Williamson of National Review and Professor Kevin Kruse of Princeton recently had a bit of a back and forth that was essentially over the question of whether it was accurate to call the segregationist southern Democrats whom Joe Biden once buddied up to “conservative.” Williamson, answering in the negative, originally responded to a series of tweets sent by Kruse in response to Tom Cotton. Kruse took to Twitter to reply to Williamson. Williamson replied here, and Kruse in turn answered back here and here.

Just summarizing the exchange would take about 3,000 words, and I’m not doing another one of those right now*, so I am counting you all to look through each link and carefully read every word of it. I’ll wait.

Now that you’re back, I’m not going to go all Hot Air on you now and copy and paste a whole bunch of stuff with commentary intermingled until you are just about nauseous. The quick summary is that Williamson thinks it is absurd to categorize the southern Democrats of this era as conservative. As a counterpoint Kruse cites the words of men like William F. Buckley and Richard Nixon who thought these southern “conservatives” could be won over to the GOP (indeed belonged in the GOP), as well as Congressional voting scorecards to prove that they were indeed conservatives, properly understood.

I think Williamson is largely right in hitting back at Kruse on the fallibility of WFB, who was just frankly wrong when it came to segregation. As for Kruse’s reliance on scorecards, I think it leaves a lot to be desired when it comes to measuring ideological coherence. It’s a bare step up above using those Facebook quizzes to measure where you are on the ideological spectrum. First of all, the scorecard is in the eye of the beholder. What counts as a “liberal” vote is determined by the person doing the scoring. If voting for (or against) civil rights legislation is the major criterion by which one is judged, and voting for such legislation is considered “liberal,” then it makes sense that the southern Democrats would be adjudged to be less conservative. But is that really a good measure when a majority of Republicans voted the same way? It’s at best debatable. As for other scores, who knows how these votes are being scored. Moreover, these scorecards are limited to actual legislation before Congress, and in the context of the 1960s, are further skewed by the dramatic over-representation of Democrats. For example, the 89th Congress (1965-1966) had 67 Democratic Senators as opposed to 33 Republicans, and the proportion was similar in the House. The Democrats lost a few seats in the 90th Congress, but still had a significant majority. That is going to affect the nature of legislation being proposed in Congress, as well as the relative partisan scores.

It would be much better to look at the careers of these southern Democrats and the specific legislative focus before determining they are conservatives. Herbert Talmadge, for example, voted in favor or Medicare and Medicaid and was generally a reliable supporter of Great Society programs. It is true that other southern Democrats, such as Eastland and Stennis of Mississippi, voted against these programs, but southern Democrats largely fell in line. Moreover, Talmadge sponsored the legislation that created foodstamps (albeit with then proviso that the able-bodied must work to receive them), and his legislative history was one that wasn’t exactly a model of Hayekian fiscal libertarianism, even if he was a bit of a budget hawk towards the end of his career.

Kruse waves away Williamson’s quite accurate depiction of southern Democrats as being progressive supporters of the New Deal by pointing out that they started to align with Republicans in the late 30’s to vote against New Deal expansion. But this is both misleading at the same time as it is subtly damning to Kruse’s general thesis.

First of all, Kruse overstates the amount of southern Democrat defection from the New Deal, as neither the entire southern delegation nor their electors completely turned against the New Deal. As a crass generalization, it would be more accurate to label most of these southern Democrats as populists: generally socially conservative, but also economically interventionist. Ironically, they would be a better fit in today’s Republican party than the GOP of their era, but more on that in a moment.

But if one concedes that the Dixicrats and other southern Democrats were generally to the right of their own party, and some Republicans thus saw an opportunity to recruit them into the GOP, that in and of itself refutes the long-held contention that Republicans and Democrats “switched places” ideologically. Though the original histories of both parties are complicated to place on an ideological spectrum, the relative right/left configuration of both was pretty clear by the end of World War I. Woodrow Wilson had begun the process of moving the party in a Progressive direction, while the waning influence of men like Robert LaFollette, combined with the presidency of Calvin Coolidge and the leadership of Robert Taft, moved the Republican party inexorably to the right.

It’s true that “American” conservatism became much more of a true ideology as a reaction to the New Deal, but the GOP had become the more rightward tilting party long before then. What’s more, the right-wing of the Republican party, generally speaking, were not opposed to civil rights. Opposition to civil rights on the right was generally due to states rights and libertarian purity rather than racial animus (though I won’t pretend the latter no doubt played a part in some right-wing thinking).

It is also important to note that men like Talmadge were replaced in the Senate not by populist conservatives, but traditional Reagan conservatives. When the south began slowly moving to the Republican column beyond the presidential level, one of the first Republicans voted into Congress was Newt Gingrich. I think it’s safe to say Gingrich, at least at this period, was a more emblematic of conservative thought than Talmadge. As for Talmadge, he was ultimately defeated by Mack Mattingly, whose political thought was in tune with Gingrich’s. It would take another couple of decades for southern Republicans to become dominant in the south, and there are two notable aspects about these Republicans: they were by and large much orthodox in their conservatism than men such as Talmadge, and they were very much not segregationists.

The south moved slowly towards the Republican party because older southerners – many of whom maintained some of their original racial sentiments – continued to vote Democrat, while younger voters generally shed the racism of their forebears and tended to vote Republican. That is not to say every younger southern Republican was completely pure on race, or that racism is a uniparty phenomenon. But by the time the Republicans truly came to dominate the south in the late 1990s and early 2000s, race had become a drastically less important issue, at least on the surface.

In a way, this confrontation between Williamson and Kruse is another round in the debate about what conservatism truly means. I think Williamson is grounded in traditional conservative thinking, and thus sees at least the economic voting record of southern Democrats as being wholly incompatible with true conservatism. As I alluded to above, Kruse would actually be on more solid ground if we defined conservatism as it is being practiced (or promoted) by the more “Trumpist” Republican party. If conservatism is defined as a culturally reactionary and economically interventionist philosophy dedicated to helping the forgotten American, then indeed Kruse might have the better of the argument. As a matter of historical accuracy, Williamson has the better of the argument. Going forward, I only hope Williamson’s conservatism is what we all recognize as conservatism.

*Stay tuned.

Populism and Conspiracy Thinking

Last week Tucker Carlson blew up the right side of the internet when he delivered this 15 minute monologue on his nightly show. It was ostensibly a response to Senator Mitt Romney’s op-ed in the Washington Post, blasting President Trump for his rhetoric and character. But in reality it was so much more, and represents a sharp divide between “populist” and traditional conservative/libertarian economic thought. It has spurred a number of critical responses as well as defenses. David French had one here, and Ben Shapiro has now written a pair of pieces as well.

This is just the tip of the iceberg. Frankly, I find this debate a refreshing change of pace because the focus is on fundamental principles. Most of Carlson’s critics concede the truth of much of what he says, though they are critical both of his solutions (or lack thereof) and the level of blame he places on elites.

There is a lot here to discuss, and indeed it touches on some of the topics I had been hoping to cover. Here I am just going to focus on one very narrow issue, and it’s one David French touched upon. Listening to – or reading – Carlson’s talk, I heard a lot of familiar notes. Whenever I read through populist screeds in various social media settings, a common refrain is that some external force is the reason for all that ails either the individual or society as a whole. By external force I mean some force outside the person himself. Some kind of nefarious group – politicians, Democrats, Republicans, masons, etc. – is pulling the strings and are the cause of our woes.

Carlson’s monologue was full of these indictments. Here’s French quoting Carlson:

And he talks about wealthier Americans as if they’re indifferent to the plight of their fellow Americans. Here’s Carlson: “Those very same affluent married people, the ones making virtually all the decisions in our society, are doing pretty much nothing to help the people below them get and stay married. Rich people are happy to fight malaria in Congo. But working to raise men’s wages in Dayton or Detroit? That’s crazy.”

As French notes, this just isn’t true.

In 2017, Americans gave more than $410 billion in charity, and the idea that this charity flows principally overseas is ludicrous. Gifts to international charities represented only 6 percent of total giving, and foreign aid represents roughly 1.2 percent of the federal budget, an inconsequential sum compared with the immense sums we spend in the United States on economic development and social welfare. America is consistently one of the most charitable countries in the world, whether measured by volunteerism or money.

The more subjective aspect of this claim is that the rich just don’t care about the plight of poor people or the folks in Appalachia. While it’s easy to pin bad policy choices on a lack of concern, this is not necessarily accurate. Or as French puts it, it’s less about rich Americans not caring as them just making poor policy decisions.

What struck me about all this is that there’s a common subtext with conspiracy thinking. For conspiracy theorists, there’s always some cabal working behind the scenes to destroy everything. The World Trade Center didn’t get taken out by a pair of planes flown by Islamic terrorists – oh no, it was Bush and Cheney and a neocon plot to eventually invade the Middle East and take all their oil. No, those kids in Connecticut weren’t gun down by a madmen, it was a plot by the US government to force gun control upon us.

The thing about conspiracy theorizing is that in some ways it serves as a comfort to those who espouse these ideas. Here’s why. It is unfathomable to think that terrible events could be random. Or, better yet, it’s difficult to accept that these truly events could have happened in the United States without some sort of sign off by the deep state. Because if some random mad man can just shoot up a school, or if 19 well-funded terrorists could take out the World Trade Center and the Pentagon and kill thousands, the world becomes a much less ordered place. I mean just look at the paranoid discussion centering around the new world order – and I don’t mean that one, brother. The key word there is “order.” Because if the world isn’t being run by such cabals, then there’s decidedly less order in the world.

In many ways I think this is what motivates populist thinking. If there is an opioid crisis in Appalachia, then the remote cause can’t be the choices those individual living there made. The crisis must have been precipitated by men of evil intent. Because the flip side of conspiracy and populist thinking is that if we get rid of the bad men and replace them with well-intentioned people, then there is a solution to the world’s ills.

The chaos and tragedy of the world is not just that – it’s not the natural state of a fallen world, but a predetermined outcome. It’s unthinkable that bad things could just happen in the United States or the citizens of the country. Ultimately, if we just adjust the gears, then things will be okay.

I recognize that this this is not an entirely fair comparison, and there’s a little bit more complexity to Carlson’s and others thinking. Yet I can’t help but see this underlying connection. It’s an outlook that is both fatalistic and yet naively optimistic, because the subtext is that a fix is just a flick of the light-switch away. It is a shared worldview that is uncomfortable with disorder. Ultimately both modes of thinking are dangerous in their own ways, but more on that to follow.

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.

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.

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.

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.