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.

China Disappears Interpol ex-Chief

As if to confirm what I said in my previous post about disparate treatments of Saudi Arabia and China, you’ll note how this news is greeted by radio silence.

The wife of Meng Hongwei, incumbent president of Interpol who has been detained in secret by China, says she is not sure her husband is alive after he disappeared mysteriously last month, to turn up under investigation in China.

In an emotional interview with the BBC, Grace Meng said she and her children have been waiting for news of Meng Hongwei, who has not been seen or heard from since 25 September when he flew from France to China. “I tell them Daddy is on a long business trip … We want to hear his voice,” she said in an interview published on Friday.

In September she reported her husband missing after he sent her a cryptic message on WhatsApp saying: “Wait for my call,” followed by an emoji of a knife. After French police opened an investigation and Interpol appealed to Beijing for answers, Interpol received his resignation and Chinese authorities announced on 7 October that he was in their custody and under investigation for bribery.

Meng Hongwei was the first Chinese national to become president of the international law enforcement agency, and had been living in France with his wife and two children. He appears to be the latest victim of a years-long anti-corruption crackdown that most observers say is a thinly veiled political purge to root out rivals and officials disloyal to President Xi Jinping.

If you hear about this incident beyond this blog post, it will be a minor miracle.

The Federalist Solution?

It’s never not appropriate to post a scene from the only screen adaptation of a Clancy book that didn’t veer wildly from the novel*, but it seems especially apropos in this current environment.

* Except for the not entirely insignificant difference that in the book the US knows Ramius is defecting, whereas in the movie it’s a good guess on Jack Ryan’s part.

So, things are pretty nuts out there, huh? If you’ve had conversations with just about any other human being who is even remotely tuned in politically, it seems the country is bursting at the seams. Some think we’re on the precipice of a civil war, while others (or at least one other in my comments section) have compared it to the environment leading up to the American Revolution.

Here’s the thing: I don’t think these dire assessments are wide of the mark. Our political discord has been getting testier by the year, and no, it did not begin with the ascension of Donald Trump, nor do I think he necessarily hastened developments (though he certainly didn’t help). Violent fantasies about killing George W. Bush made their way to print and film, and life did not get quieter during Obama’s presidency. A quick perusal of twitter comment threads are a good reflection of the anger boiling over in every direction.

The Kavanaugh confirmation hearing has brought together several different threads, and that is why I believe it has been especially rancorous. Kavanaugh has been nominated to replace Anthony Kennedy, who has been a swing vote on the Supreme Court. Kennedy’s votes on cultural/social issues (which tended towards a leftist/broad interpretation of the constitutional text) and economic/regulatory issues (tending more towards a conservative/textualist approach) are themselves flashpoints in the political and cultural cold war we’ve been living with. And of course Kennedy’s appointment was the result of perhaps the most contentious Supreme Court confirmation battle before this one, when Robert Bork’s nomination was, well, borked by Senate Democrats. Ted Kennedy famously bellowed “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”

So you can see we’ve had a lot of anger billowing underneath the surface for quite awhile now. Kennedy’s nightmare vision of Bork’s America – to be contrasted with Ted Kennedy’s America, where helpless women are permitted to drown in automobiles just feet from shore – helped sink Bork. After Reagan’s next pick, Douglas Ginsburg, was sunk because of revelations of pot usage (oh for more innocent times), Kennedy became the compromise pick.

And so here we are. The proper role of the Supreme Court, the proper method of interpreting the Constitution, the appropriate scope of the federal government, and dealing with the question of sexual assault and abuse and the levels to which alleged victims should be believed unconditionally: these are just some of the small, minor issues this process has brought to the fore. I can’t imagine why we’re all at each other’s throats over this.

The question all this poses for us is whether we can actually function as something like a united nation in light of all this, or have our politics diverged to such an extent that there is no living with the other side?

Charles Murray was posed a question like this on an episode of Jonah Goldberg’s Remnant podcast, and he hinted at an answer: federalism. Actually, Murray dug a little deeper. He noted that there were liberal (and majority white) urban enclaves such as Portland, Burlington, and Austin who have essentially adopted the “we just want to be left alone” mantra typically ascribed to southern and more conservative outposts. “Keep Austin Weird” is, after all, a popular bumper stickers around that town. The idea is that there is a unique local culture, and outsiders should not come and mess things up.

A good compromise to my ears is that we’ll keep Austin weird as long as we keep the rest of the state an outpost for individual liberty. Refugees from California ought not flee from their state because of the onerous regulatory environment only to come to Texas and vote for the same types of politicians who made them relocate in the first place. In other words, states and localities should be given wide latitude to govern as they see fit without a larger group forcing change upon them.

In a sense this not far from the Catholic doctrine of subsidiarity,  which encourages decision making at the lowest (or smallest) level possible. In a nation of 320+ million souls, subsidiarity and its political cousin, federalism, are likely the best answer.

Moreover, this approach would solve the dilemma of one of the other concurrent heated debates: the role of the courts. We’re only having this moment right now because of the awesome power of the courts, and in particular the Supreme Court. The nationalization of every issue and the over-sized role of the Court in arbitrating constitutional disputes are self reinforcing problems. Simply because the other two branches have allowed it to happen, the Supreme Court has become a super-legislature, handing down binding decisions that impact every facet of American life. This is, shall we say, not optimal, and certainly not what the Framers envisioned.

And yet, it feels a bit like saying the solution to our fractured politics is to be a constitutional, federalist America. To save America, America must become America again. While this restoration of the American ideal might sound attractive to me and many of those reading this, it doesn’t exactly satisfy everyone. Furthermore, unless we’re willing to be proponents of the “constitution in exile” theory, it begs the question of how this awesome constitutional design left us where we are today. In other words, maybe bad actors didn’t subvert the constitutional design, but rather the constitution itself was fraught with unresolvable conflicts. To put it in ways that might hurt delicate ears: maybe the constitutional design itself is flawed. Maybe the anti-federalists had it right from the beginning.

When I started this blog post, there was no question mark at the beginning of the title. There is now because as I think through these problems, I’m less certain there is a solution.Then again, as Darwin Catholic put it, catharsis isn’t coming, so maybe we shouldn’t be aiming for it.

I put these questions out there not as a rhetorical ploy. This isn’t a case where I’m throwing out a question about the anti-Federalists only to reply strongly in the negative (or affirmative). I’m genuinely puzzling through these questions even as I type.

It’s easy to sit here and say the Supreme Court should not be the ultimate arbiter of constitutional questions. It is much more difficult to propose ways to curtail some of its authority in ways which would preserve the delicate checks and balances of our constitutional system in a way satisfactory to all – or heck, most. Pundits are supposed to confidently posit world-stopping solutions to all our problems. At this moment in time, I am not afraid to say that I have no easy solution to resolving the growing tensions in American society.

 

 

 

Early Morning Reads

A trio of good reads, none of which have to do with Brett Kavanaugh:

– Recent graduate Naweed Tahmas writes about life on the Berekeley campus as a conservative.

I have been harassed, stalked, chased, punched, and spat on during my time at UC Berkeley, and in early 2017, I was chased by a mob of masked, black-clad thugs. These thugs, members of a fringe political faction, threw bricks at police officers, launched Molotov cocktails, set fires, beat innocent bystanders, and cut a wide swath of destruction through the downtown area of an entire city.

This was not an outbreak of sectarian violence in a developing nation. This occurred here in the United States, on the campus of UC Berkeley, once home of the Free Speech Movement. The thugs who chased me were far-left anarchists styling themselves as “Antifa” (short for “anti-fascist”). They were responding to a planned talk by Milo Yiannopoulos, which administrators administrators canceled for the safety of the speaker and the attendees. Police made only one arrest that night.

-Dan McLaughlin with a fascinating look back on the 100th anniversary of the bloodiest battle (for Americans) of World War I.

– A brutal but fair analysis of Dinesh D’Souza.

The Lies They Must Tell Themselves

Saw this on a Facebook friend’s feed:

Another Facebook friend posted something along those lines:

Image may contain: one or more people

Neither of these people live in bubbles. They are both red-state Democrats who (I can attest) know enough conservatives/Republicans to presumably have a decent understanding of what we actually believe. And yet both posted these disgusting calumnies.

It’s bad enough to encounter play-actors like Cory Booker and Kirsten Gillibrand who mouth ridiculous caricatures of Republicans in order to rile up their base. But when people – intelligent people – propagate these falsehoods, you know we are the point of no return.

Emotion has completely swallowed reason. It will only get worse from here.

 

Random Observations

– One of the talking points going around is that Brett Kavanaugh is acting “entitled” to a SCOTUS seat, because showing emotion about being accused of a sex crime is assuredly a signal of one’s entitlement. These very same people have talked about the Merrick Garland “seat” as though President Obama’s mere nomination meant Garland was entitled to the seat.

– Speaking of double standards, the Catholic left is lining up against Kavanaugh. America Magazine has urged he be  voted down, shocking no one exactly. Meanwhile detective Steven Greydanus and Dr. Watson, err Mark Shea crack the code of Kavanaugh’s high school yearbook and thus conclude that he is guilty beyond a reasonable doubt. Shea is of course one of the members of the papal online guard who resort to ad hominem attacks anytime the current pontiff is alleged to have gone soft on clerics guilty of abuse. And of course these claims contain much more corroboration than those against Kavanaugh. But Shea, nevertheless, is on the lookout to tamp down those unreasonable Christianists. (I should emphasize here why I noted my Catholicism in my initial post. This internecine warfare is another topic I will be sure to deal with in the future.)

– Yale law students are certainly free to take time off to protest, but I do hope none of those protesting wearing “Believe All Women” shirts, or shirts with slogans to that effect, ever work in a public defender’s office. Similarly, I do hope all those other online warriors who have expressed similar opinions are never assigned to a jury on a rape case.

The Radicalization of a Conservative

I stands what I can stands and I can’t stands no more – Popeye

If you think kicking off the initial post of this blog with a quote from Popeye is an indication of a lack of seriousness on my part, I will encourage you now to go ahead and peruse social media. Check out the accounts of our elected officials. Look at the profiles of “mainstream” media “reporters.” Go ahead, I’ll wait.

Now then, doesn’t Popeye seem like a sage in comparison to the drek you just read?

Let me state up front who I am. I am a politically conservative Roman Catholic of a certain age. I strenuously opposed the nomination of Donald Trump, and did not vote for him in the general election. For technical and logistical reasons I do not call myself a “Never Trumper.” I have not become a fan of Donald Trump, though I support and appreciate many of his policy goals and initiatives, none the least of which are his judicial selections – but more on that in a second. A lifelong Republican, I changed to Independent days before the 2016 Republican convention. This November I intended to vote only to reelect my governor, and then leave all other offices on the ballot blank.

After what I witnessed yesterday, and have been witnessing for the past two weeks, I will be voting straight line Republican in November. Moreover, I will not be sitting on the sidelines anymore as the left – and yes, the American left does merit most of the blame for the circus our republic has become – becomes committed to acquiring power at all costs.

This does not mean I have become a “Trumpist,” nor will I become (I hope) a blind Republican partisan stooge. It does mean that recent events have, for lack of a better term, “radicalized” me. No, you don’t have to alert homeland security. The greatest extent my radicalization will take is writing angry screeds on the internet. But make no mistake: I am angry, or at least I am angry about what our politics have become.

I intend not just to write about current events. As the blog title indicates, history is important to me, and will endeavor to write historically-informed posts. The next few posts, however, will focus on the Kavanaugh confirmation hearings, and the disgusting treatment he received from Democrats on the committee, as well as what public reaction to those hearings has revealed about the mindset of the American left.