The American Founding as the Best Regime
The Bonding of Civil and Religious Liberty
By Harry V. Jaffa
Posted May 15, 2002
In the great journal of things happening under the sun, we, the American people, find our account running, under date of the nineteenth century of the Christian era. We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory, fertility of soil, and salubrity of climate. We find ourselves under the government of a system of political institutions, conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tell us.— Abraham Lincoln January 27, 1838
The Preamble of the Constitution crowns its enumeration of the ends of the Constitution by declaring its purpose to "secure the blessings of liberty to ourselves and our posterity." No words of the Constitution reveal the intention of the Constitution more profoundly than these. The Preamble is the statement of the Constitution's purposes, and this culminating purpose embraces and transcends those that have gone before. Alone among the ends of the Constitution, to secure liberty is called a securing of "blessings." What is a blessing is what is good in the eyes of God. It is a good whose possession — by the common understanding of mankind — belongs properly only to those who deserve it. We remember that the final paragraph of the Declaration of Independence appeals to "the Supreme Judge of the World for the rectitude of our intentions." It is by "the authority of the good people of these colonies" that independence is declared. It is because of this assurance of their rectitude that this good people, and their representatives, placed "a firm reliance on the protection of Divine Providence." We commonly call blessed those who enjoy in great measure wealth and health and freedom. And so it is that men pray for these things. Yet the sufferings of the innocent and the flourishing of the wicked — especially the great tyrants — teach us that to be blessed is not the same thing as to be in the enjoyment of worldly goods, of what Aristotle calls external goods. It is an element of the natural theology of mankind — that is partly implicit and partly explicit in the Declaration of Independence — that the compensations, both of evil and of good, are not altogether those visible in the natural order. Hence Aristotle says that what men should pray for is that these external goods be good for them. When men are poor, they seem to wish only for wealth. When they are ill, for health. When they are enslaved, they long only for freedom. This is altogether understandable.
Nevertheless, reflection teaches us that the possession of health, wealth, and freedom are not the ultimate measure of human well-being. We know that there have been human beings who, being in the full possession of health, wealth, and freedom, have yet committed suicide. Health, wealth, and freedom must be combined with something else before they become ingredients of the human good, before they become blessings, properly so called. Aristotle says that no man, even with all the other goods for which men pray, would wish to live without friends. And — although they are usually surrounded by flatterers — tyrants do not have friends, certainly not the kind of friends who make life worth living. The Virginia Bill of Rights of June 12, 1776, affirmed a fundamental principle of the Revolution and of the Founding — providing by anticipation a gloss upon the words of the Preamble — when it declared that:
. . . no free government, or the blessings of liberty,can be preserved to any people, but by a firmadherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence tofundamental principles.
The idea of liberty — or the liberty which is a blessing — being an emancipation of the passions from moral restraint had no place in the constitutional doctrine of the novus ordo seclorum. The liberty which is a blessing must be good for the one who possesses it. It must therefore be a good in the sight of God, who is the source of blessings. Such a good must point to felicity, whether in this world or the next, as its consummation. By calling the advantages of liberty "blessings," the Constitution, which in certain respects makes perhaps the most radical break in all human history with all that has gone before it, nonetheless, in its understanding of the connection between happiness and virtue, aligns itself decisively with traditional moral philosophy and moral theology.
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The Constitution of the United States meant to do what, in fact, it has done. By grounding the regime in the doctrine of human equality, proclaimed in the Declaration of Independence, it has, as Lincoln said, cleared paths for all, given hope to all, and, by consequence, enterprise and industry to all. To a degree hitherto unimagined as possible, it has lifted the burden of unjust inequality — "the oppressor's wrong, the proud man's contumely" — from the backs of the common people. As the Virginia Bill of Rights shows, the Framers never conceived the blessings of liberty in nonmoral terms. They never imagined it to encompass the exhibitionism of lesbians, sodomites, abortionists, drug addicts, and pornographers. The people are the source of the authority of the Constitution — of all lawful authority. In Jefferson's words, the people "are inherently independent of all but moral law" (letter to Spenser Roane, September 6, 1819) Let us not, however, forget, that "but." Absent the moral law, a people becomes a mob. And mobs give rise not to free government, but to despotism. That is the theme of Lincoln's Lyceum speech in 1838.
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In the beginning of the Lyceum speech, Lincoln speaks of our political institutions "conducing more essentially to the ends of civil and religious liberty, than any of which the history of former times tells us." Speaking thus has become so idiomatic that it is difficult to recapture the novelty it once possessed. The first amendment, in a single sentence — divided, however, by a semicolon — joins together its civil and religious guarantees. Although it is customary to speak of "civil" before "religious," the first amendment actually reverses this order. This is not accidental. Without the establishment of religious Liberty — without the removal from the political process of sectarian religious questions — a regime combining majority rule with minority rights is not a feasible enterprise. The problem of democratic constitutionalism was expressed succinctly by Jefferson in his inaugural address.
All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
It is clear from the foregoing that "rightfulness" and "reasonableness," being restraints upon the will of the majority, are not themselves mere expressions of will. Here Jefferson is not only saying what the Constitution is, but why it is what it is. In truth, the "what" of the Constitution is inseparable from its "why," and the attempt to understand the former without the latter is — all but the simplest cases
--vain. Yet this is precisely what Chief Justice of the Supreme Court William Rehnquist attempts when he writes, for example, that constitutional "safeguards for individual liberty" are grounded neither in "intrinsic worth" nor in "someone's idea of natural justice," but simply in the fact that "they have been incorporated in a constitution by the people." The Framers' ideas of natural justice were the very ground and origin of their intent. To appeal to the conception of "original intent" in interpreting the Constitution — as do Justices Rehnquist and Antonin Scalia and Judge Robert Bork — while denying the ideas of natural justice which formed the "why" of the Constitution, is to go to the uttermost limit of self-contradiction.
James Madison, in his essay on "Sovereignty," written near the end of his life, restated the theoretical arguments that had guided both him and Jefferson in their long political careers. The occasion, of course, was his bitter struggle against Nullification — the South Carolina doctrine whose principal author and exponent was John C. Calhoun. And the necessary condition for Calhoun's entire teaching was the rejection (like Justice Rehnquist) of the idea of natural equality — and natural justice — that had animated the Founding. Legitimate political authority, according to Madison, always arises from an agreement ("compact is the basis of all free government") made between men who are by nature — or originally — equal, none having more authority over another than the other has over him. It is the primordial fact "that all men are created equal" which is the ground both of majority rule and of minority rights. Hence it is that Lincoln would call this proposition "an abstract truth, applicable to all men and all times," and why he would, at Gettysburg, rededicate the nation to it.
Sovereignty, then, has its ground in the natural right to rule oneself that every human being possesses. Sovereignty in the political sense — what we ordinarily call sovereignty — arises when men transfer their right to rule themselves to a civil society, which can do for them what they cannot do for themselves. Civil society, according to Madison, is constituted by the unanimous consent of its constituent members. But civil society is ruled by the majority. The majority is the surrogate for that unanimity which brought the polity into being, but which cannot be the continuing basis for the decisions required by governments if they are to answer the purposes for which they are instituted. That the will of the majority should prevail is a "sacred principle" because the authority of the majority is derived from those natural rights with which all men have been equally "endowed by their Creator." A civil society is perfectly formed, to the extent that each and all of the contracting parties recognize in each other that equality of rights — and of right — which makes the will of the majority "sacred." For the majority, being the substitute or surrogate for the whole, must represent the minority as well as itself. The majority must understand that it is acting on behalf of the people as a whole, and hence the minority no less than the majority. And the minority must look upon the majority as governing in the interests of all, however much it may disagree with the particular measures adopted by the majority. We all recognize this when we speak, for example, of the representative from our congressional district as "our" representative whether we voted for him or against him. And we all recognize that the President of the United States is equally the President of every citizen of the United States. Majority and minority are then essentially divided only by the questions of what means ought to be adopted, for the sake of the ends which are common to all. Hence the Declaration of Independence proclaims "that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it. . . ." The Declaration is speaking here of the people as a whole, but this whole is constituted by its contracting individuals. The right to "alter or abolish" belongs to any majority faced with a will external to itself — as in the case of the King and Parliament of Great Britain. But it also belongs to any minority faced with a majority that ceases, as Jefferson says, to be "reasonable," and which passes laws which violate the "equal rights" of their fellow citizens. Madison, in his essay on "Sovereignty," defines the limits of the authority of the majority by reference to whatever might be done rightfully and by unanimity. The qualification of unanimity refers back to the original constitutive principle of the polity. Unanimous consent is, however, the necessary but not the sufficient condition of government that is nondespotic. The community of Jonestown apparently committed suicide by unanimous consent. Unanimity did not make that action reasonable, or even nondespotic — surely not for the hundreds of children who were put to death by their consenting but deluded parents. Rightfulness implies moral understanding, that "rectitude" upon which the "good people" of the colonies relied in submitting their consciences to "the Supreme Judge of the world." It implies, to repeat, that "moral law" mentioned by Jefferson, without which the authority of the people itself fails. For the rights set forth in the second paragraph of the Declaration of Independence, the rights to "life, liberty, and the pursuit of happiness," are not unconditional justifications for idiosyncratic behavior. They are rights under the "laws of nature and of nature's God." They are not rights authorizing actions which, by those laws, are wrongs. Slavery was, from the outset, no mere paradox in a land of freedom. It was a contradiction of every right to which the American people had themselves appealed when asserting their own right to nondespotic government.
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The constitutionalism of our Founding is inseparable from its moral realism and its natural theology. Tocqueville praised the effect of disestablishment in America and called religion the first of our political institutions precisely because of it. By removing theological differences from the political arena, men could worship God freely according to the dictates of their consciences. But however differently they might conceive of the divine attributes, or however different the forms of worship which in their eyes were pleasing to God, there was a common understanding of morality underlying — or transcending — religious differences. This common understanding was strengthened by all the churches, just by the fact that it was not called into question by their theological differences. By strengthening this moral consensus, disestablishment promoted confidence and even friendship among the citizens. By doing so, it promoted a regime in which the rule of the majority might be consistent with the rights of the minority. But the practical achievement of such a regime was a hard one nonetheless. Without the doctrine of disestablishment and religious freedom it would have been impossible.
The obstacle to Union that arose over slavery could never have been surmounted had not the bonds of Union been sowed in the idea of religious freedom, for the idea of religious freedom encompasses and promotes moral law independently of any particular dogmas of revealed religion. Equally important, it lays the foundation for the idea of limited government in its full extent, and not only with reference to the question of religion. Why this is so, we shall presently say. First, in attempting to define the nature of its limits, let us take note of the crucial tests in the early years of the Constitution — tests it could never have survived had not the doctrine of religious liberty placed the religious question outside its boundaries.
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In the election of 1800, the control of the government of the United States passed substantially from the hands of the Federalists to that of the Republicans. To the best of my knowledge, this was the first time in human history that any such change in the offices of government had ever occurred on the basis of a free popular election. No such election happened in England until well into the nineteenth century. It was not until long after the American Revolution that the King — who could not be constitutionally replaced by any electoral process — ceased to be the executive head of government. Ministers were responsible to the Crown, not to the Parliament. The King secured his majorities in Parliament, not by calling elections, but by manipulating the patronage. That is what Alexander Hamilton had in mind when he said that without corruption the British Constitution was unworkable. And, of course, not until after 1832 could there be said to be anything like a popular election even for the House of Commons.
During the 1790s in France, in the course of the French Revolution, something like ministerial responsibility to the elected Assembly did occur, anticipating the future course of parliamentary democracy. Unfortunately, the special ceremony for outgoing ministers made it impossible for them to form a loyal opposition or to contest future elections. The election of 1800 in the United States was the the first time that the losers gave up their offices peacefully and the winners did not proscribe their defeated opponents by death, imprisonment, loss of property, exile, or even the loss of civil or political rights.
Exactly what contested elections were to mean under the new Constitution was an unresolved question until 1800. The presidency of George Washington happily postponed many such questions, while the new government gained stability and strength under the shelter of Washington's towering prestige. The election of 1796, while hotly contested, returned the party in power to office. The fact that the Constitution of 1787 called for each elector to cast two ballots for President — with the vice-presidency going to the runner-up — showed that the Framers did not anticipate the kind of partisan contests that actually developed. When Jefferson and Burr received the same electoral vote in 1800, the Constitution had to be amended so that electors henceforth distinguished their votes for President and Vice President. The Alien and Sedition Acts of 1798 revealed profound uncertainties as to what a regime of liberty meant in the face of fierce party contests for control of the government.
It cannot be emphasized too strongly, however, that America was forging the principles of modern democracy for all humanity, and doing so with no precedents to guide her. The party contests of the 1790s were the bitterest in American history — more so, even, than those that preceded the Civil War. In part, this was because the very idea of settling such deeply felt differences by free elections was an idea struggling to be born. And we must never forget that that idea required a rebirth — a new birth of freedom — before it was in any sense finally accepted, for the achievement of the election of 1800 did not survive 1860. That year, the party that lost the decision of the vote withdrew from the government rather than accept that decision.
It was Lincoln's genius to explain more lucidly and compellingly than ever before the inner connection between the great proposition of human equality and the necessity and propriety of free elections. It was Lincoln's fate to explain — in the presence of a gigantic rebellion against the decision of the polls — why the decision of the ballots might not be reversed by bullets. And it was Lincoln's fate to explain why, in the end, the war to defend the sanctity of the ballot box and the war to end slavery had to become one and the same.
But Jefferson was Lincoln's teacher. And Jefferson, who in the electoral contest of 1800 had not been lax in the invidiousness of his description of his political opponents, nonetheless declared, in his inaugural address, that:
. . . every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists.
Jefferson did not mean by this that the electoral process was indifferent to differences of principle.
If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.
To tolerate error is not to be indifferent to error. Jefferson did not suppose that free government could survive in the absence of sufficient and authoritative opinion in its favor. To worship God according to the dictates of one's own conscience, and not to suffer any civil disability for doing so, is not a matter of tolerance. It is a matter of right. Nor does Jefferson think that there is a right either to dissolve the Union or to change its republican form. Those who would do so merit toleration, but only because of the "safety" with which such toleration may be extended. Yet the day came when it was no longer safe to repeat Jefferson's own condemnation of slavery in many states of the Union. The day came when those states, rather than tolerate anti-slavery speech or contemplate its political consequences, attempted to dissolve the Union. Then it was that Jefferson's confidence in the power of the truth to prevail was put to a supreme test.
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As we have noted, in the single sentence that is the first amendment, the religious guarantees come first. The guarantees after the semicolon — speech, press, assembly, petition — are all active elements in the political process and are intended to provide for its integrity. Freedom of religion is understood to be necessary for the integrity of the political process in the negative sense that such questions as what religion should be established would be an intolerable burden upon that process. Civil and religious liberty are distinct, yet it is good that we regard them as inseparable. Their "bonding" (to use a currently fashionable phrase) is, in a peculiar sense, the achievement of the United States of America.
Consider the status of religious liberty in England — deemed by all the Founding Fathers as the freest government to precede our own, and the model for many of its features. Let us recall Lord Macaulay's celebrated passage on the Toleration Act of 1689, a constitutional pillar of the Glorious Revolution:
The sound principle undoubtedly is, that mere theological error ought not to be punished by the civil magistrate. This principle the Toleration Act not only does not recognize, but positively disclaims. . . . Persecution continues to be the general rule. Toleration is the exception. . . . That the provisions . . . are cumbrous, puerile, inconsistent with each other, inconsistent with the true theory of religious liberty, must be acknowledged. All that can be said in their defense is this: that they removed a vast mass of evil without shocking a vast mass of prejudice. . . .
It was wonderful that such a vast mass of evil was removed by this great law. It was wise of the Parliament not to attempt to assert "the true theory of religious liberty" in the face of such "a vast mass of prejudice." We are reminded that a nation can proceed upon the ground of a "true theory" in the face of such prejudice only by imposing upon the nation a will external to the nation itself. This alternative was known to our Founding Fathers as "enlightened despotism," but they rejected it on the ground that the enlightened consent of the governed was the only durable foundation for free or good government. But the necessity for enlightenment in the consent of the governed was never far from their thoughts. Free government was never possible apart from it. The foundations of American government, wrote Washington in 1783,
were not laid in the gloomy ages of ignorance and superstition, but at an epoch when the rights of mankind were better understood and more clearly defined than at any other period.
And wrote Jefferson in 1816:
If a nation expects to be ignorant and free in a. state of civilization, it expects what never was and never will be.
The American Revolution and the American Constitution became possible only because the rights of man as man — the rights of an enlightened humanity under the moral order of the laws of nature and of nature's God — defined the ground of civic friendship, subordinating the ancient distinctions, not only of religion but of ethnicity and race. Among the most remarkable but least-remarked features of the Declaration of Independence is the passage in which, after assigning a measure of responsibility to "our British brethren" for the tyrannical acts of their government, the Americans "hold them, as we hold the rest of mankind, enemies in war, in peace friends." The ancient distinctions of Greek and barbarian, of Jew and Gentile, of Christian and infidel, here disappear as the ground of human friendship and therewith of civic association.
It is true that the distinction is made, within the Declaration, between civilization on the one hand, and barbarism and savagery on the other. The distinction between the first and the latter two is the distinction between those who do and those who do not respect the rights of others, under the laws of nature. Of course, the necessary ground for such respect is enlightenment: One cannot act on principles of which one is ignorant. As I have often written, the United States is the first nation in the world to declare its independence, not because of any particular qualities or merits of its own, but because of rights which it shared with all men everywhere. In so doing, it declared the ground of "government of the people, by the people, for the people" in a sense absolutely unprecedented. In so doing, it laid an equally unprecedented claim to the character of the best regime of Western civilization.
This latter claim cannot be understood in the light of the doctrine of the best regime as it is found, for example, in Plato and Aristotle. For them, the best regime was that of "the examined life" as defined by Socratic skepticism. Moral virtue, although necessary for human happiness, did not represent in itself the highest of all possible ends: that was to be found in purely contemplative activity. Biblical religion, however, found not the examined life, but the life of obedient love of the living God, to be the highest of all possible ends of human existence. Like classical philosophy, biblical religion finds that man's highest end transcends morality. For man's highest end, his relationship with God, is a transmoral end. Biblical religion presupposes a living God whose existence is primarily and essentially a matter of faith. Whatever demonstrations unassisted reason might make of God's existence and attributes may complement or supplement the teachings of faith. But they can never supplant faith as the ground of belief.
Philosophy, the way of life grounded upon the powers of unassisted human reason, can never refute the existence of the biblical God or the possibility that the best way of life is not that of the examined life. The skepticism that is the core of philosophy, the honest skepticism that must always be distinguished from dogmatic skepticism, always leaves philosophy open to the challenge of revelation. It always leaves philosophers open to the undeniable fact that the claims of autonomous human reason cannot be fully vindicated by that reason. It always leaves philosophers open to the possibility that the fully consistent life — the life that the philosopher himself longs for above all others — is possible only on the basis of revelation.
What we call Western civilization is to be found primarily and essentially in the confluence of the autonomous rationalism of classical philosophy and the faith of biblical religion. As Leo Strauss has said, the vitality — and the glory — of Western civilization is to be found above all in the "mutual influence" of these two irrefutable, irreducible principles of human life. The dynamic of Western civilization is the dynamic of their interaction. The triumph of Western civilization is to be found in the evidence, supplied by both philosophy and revelation, that the human soul, no less by the questions it asks than by the answers it believes it has discovered, participates in a reality that transcends all time and change. The tragedy of Western civilization has been the unfettered attempt, by political means, to vindicate claims whose very nature excludes the possibility that they can be vindicated by political means. To attempt to overcome the skepticism that is the ground of philosophy is like trying to jump over one's own shadow. To attempt to remove the necessity of the free and unconstrained faith that is the ground of the Bible and of biblical religion is like denying the existence of the shadow by jumping only in the dark — or with one's eyes shut!
The unprecedented character of the American Founding is that it provided for the coexistence of the claims of reason and of revelation in all their forms, without requiring or permitting any political decisions concerning them. It refused to make unassisted human reason the arbiter of the claims of revelation, and it refused to make revelation the judge of the claims of reason. It is the first regime in Western civilization to do this, and for that reason it is, in its principles or speech (leaving aside the question of its practice or deeds), the best regime.
But the virtue of the American Founding rests not only upon its defusing of the tension between reason and revelation, but upon their fundamental agreement on a moral code which can guide human life both privately and publicly. This moral code is the work both of "Nature's God" — reason — and the "Creator" — revelation. Religious freedom properly understood is a principle which emancipates political life not only from sectarian religious conflict, but from the far profounder conflict between reason and revelation. Indeed, it makes reason and revelation — for the first time — open friends and allies on the political level. For they are, to repeat, agreed upon the nature and role of morality in the good society.
But radical modernity is the enemy equally of autonomous human reason and of biblical revelation. The core of radical modernity is radical skepticism, a dogmatic skepticism that denies that we do have, or can have, any genuine knowledge of the external world. This dogmatic skepticism denies that either philosophy or revelation in the traditional understanding are possible. It denies that either Socrates or the prophets could ever have distinguished, as Thomas Hobbes put it, whether God had spoken to them in dreams or they had dreamed that God had spoken to them. Hobbes was the precursor of modern scientific positivism, which regards all knowledge as essentially hypothetical and experimental. Its core conviction is that we know only what we make. In constructing a world from hypotheses, we ourselves are the source of all creativity: there is neither need nor room for God. In constructing a world from hypotheses, we have a priori perfect knowledge of that world: there is neither need nor room for philosophy.
Since there is no a priori knowledge in nature or of nature (no "self-evident" truths) to guide the human will, the human will must itself be the a priori source of all knowledge. Unfettered will is the ground, then, of all morality. That is why National Socialism — which understood itself as "The Triumph of the Will" — is the prototypical modern regime. Long before Hitler, though, it was Marx who wrote: "The philosophers have hitherto only interpreted the world. The point, however, is to change it." Marx meant by this that traditional philosophy — an attempt to interpret or understand the world — was illusory. He believed that genuine knowledge of the world was possible only by changes in the world that originated in one's will. Hence the highest form of intellectual activity — of philosophy — was to be found not in speculation or theory, but in practice or revolution. The supreme revolutionary is the supreme philosopher. The outcome of the most radical revolution is therefore the highest form of wisdom. Hence "the inner truth and greatness" of Hitler's revolution and of Stalin's is one and the same. As such it is beyond skepticism. To doubt becomes treason and is punishable as such, for the aim or purpose of radical modernity — of modern philosophy in its final form — is the elimination of skepticism from human life, the transcendence of the opposition between reason and revelation by the abolition of both.
Dogmatic skepticism leads, then, to a scientism, of which totalitarian regimes are the natural and culminating manifestations. But the scientism of dogmatic skepticism is today endemic to the universities of the free world. This dogmatic skepticism is typically expressed as "value relativism," and is found in the writings of the Chief Justice of the United States as well as those of nearly all the so-called philosophers and social scientists of our universities. "Value relativism" is commonly but mistakenly associated with toleration of different opinions. In fact, it denies the rational or divine foundation of any virtue, including that of tolerance. But if there is no human or divine reason to prefer one opinion to another, neither is there any such reason to prefer one regime to another. If knowledge is power, the most powerful opinion is the best opinion. And there is no reason why the most powerful opinion — from which any skepticism concerning its own truth has been eliminated — should give place to any less powerful opinion. Relativism thus undermines the confidence that free government once had in its own truth, the kind of confidence with which the United States in 1776 proclaimed its right to an equal station among the powers of the earth. Relativism thus leads ultimately but inevitably toward the worst forms of tyranny.
It is sometimes said that the American Founding, as an expression of modern (notably Lockean) political philosophy, lowers the ends of human life in order to make them more easily attainable. For Americans, comfortable self-preservation, implemented by free-market economics and the scientific enhancement of man's productive powers, replaces eternal salvation or contemplation as the end of man. Whatever may be true of the thought of John Locke, this is not the way in which the American Founding understood itself. The American Founding limited the ends of government. It did not limit the ends of man. The ends of the regime, considered as ends of government, were lowered. But the ends both of reason and revelation served by the regime, in and through the limitations on government, were understood to enhance, not to diminish, the intrinsic possibility of human excellence. As long as the idea of human excellence itself survived, as understood by the great tradition of Western civilization — the civilization of the Bible and of classical philosophy — the dignity of the American Founding remained that of man's highest ends. It is the outright denial — within the very citadels of learning, the universities — of the dignity of reason and of revelation that threatens the eclipse of the American Founding, and therewith of Western civilization itself.
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We have noted Macaulay's reference to "the true theory of religious liberty." This theory has its classic affirmation in the Virginia Statute of Religious Liberty of 1786, whose author was Thomas Jefferson. It is often said, and correctly, that Jefferson wrote with Locke's Letters on Toleration before him. But Jefferson, in writing that "our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry," was more absolute and categorical than Locke. Jefferson allowed no exceptions for Jews, Catholics, or atheists. (This, incidentally, did not mean that he was an atheist any more than it meant that he was a Jew or a Catholic!) If "the true theory of religious liberty" was not recognized by the laws of England in the seventeenth or eighteenth centuries, neither was it recognized in the public laws of any other government before the American Founding. Indeed, it could not be so recognized as long as the ground of political authority was understood to originate in divine law. In the American Founding, the social contract theory of the Declaration of Independence and the doctrine of religious liberty in the Virginia Statute — both authored by Jefferson — are two sides of one coin. The rights with which all men are by nature equally endowed qualify any man to enter into an agreement with any other man (who is willing to agree with him) to form a civil society.
Political obligations are obligations flowing from such an agreement, and obeying the law is simply keeping one's promise. The authority of government is collective promise-keeping of all the parties to the social contract. Such a contract, by its nature, excludes religious stipulations, since any such stipulations or reservations would be inconsistent with the equality which is the foundation or condition of the contract. Moreover, the sovereignty of the individual who is the party to the social contract means that the government arising from this contract is limited government. This follows from the intrinsic nature of contract itself. A contract can only be made between equals, and can obligate no further than the intentions of the contracting parties.
Here we reflect upon the radical novelty, two hundred years ago, of the idea of limited government based upon the social contract of men created equal. The ancient city understood itself altogether as a creation of divine law. We are familiar, from the Old Testament, with the ancient Mosaic polity. We read it for the story of God's covenant with Israel and the origins of the Messianic promise which Christians believe was fulfilled in Jesus. However unique the Bible is in these respects, in others it is typical. The conception of political obligation — as set forth in the Declaration of Independence — simply did not exist for ancient man.
Plato's Laws begins with the Athenian Stranger asking the Cretan and the Spartan, "A god, is it, or some human being, who is credited with laying down your laws?" The Cretan answers for both himself and the Spartan, "A god, Stranger, a god." Ancient man obeyed the laws because they were of divine, not human origin. If a city was defeated in war, that meant its gods were defeated by stronger gods, and men might, without any sense of disloyalty, transfer their allegiance to the gods of their masters. Here the Jews were different in that by holding that their God alone was God, they would not admit that their God could be defeated — nor that they could have any just reason to be faithless to him.
The conception of religion, as we understand it, was as unknown to Socrates as it was unknown to Moses or to Jesus, for we distinguish religious from nonreligious spheres of life, just as we distinguish church from state, state from society, and society from government. In denying the charge of impiety, it seems never to have occurred to Socrates to deny that impiety was a crime. In defending his philosophical mission, he did so by discovering its origin in a command of the oracle of Delphi — a god recognized by the city of Athens. He insisted that it would be impious for him to disobey that command. The worship of the golden calf was a revolt against the authority of Moses — and of God. There was no ground for distinguishing the infidelity of the rebelling Israelites from their lawlessness, since there was no other source of law than God. In this, however, we see the principle of every ancient city, and not of Israel alone.
The laws of Moses regulated all aspects of human life, mental as well as physical, private as well as public. If we think of orthodox Judaism today, we think of freely chosen personal obligations. But in ancient Israel, these laws were inescapable. We have recently had something of a glimpse of the ancient city in the Islamic republicanism of the Ayatollah Khomeini and in the exhortations of Meir Kahane. How typical of the ancient city were the laws of Moses, however, we may glean from Aristotle's dictum: "Whatever the laws do not permit, they forbid." It took one of the greatest revolutions in human consciousness to change that to "Whatever the laws do not forbid, they permit."
In the New Testament, we see ancient Israel not as an independent polity, but as a conquered province of the Roman empire. When Jesus said to render to Caesar the things that were Caesar's and to God what was God's, he was making an eminently prudent statement. Contrary to a common opinion, he was not distinguishing between church and state, private and public, or religion and government. Jews had to pay tribute because the Roman legions were there to enforce payment — and to crucify anyone who resisted the authority of Rome. But the Romans were interested only in collecting tribute, and were content to let the peoples they had conquered live under their own laws and gods — these being indistinguishable. Had Jesus lived at the time of Moses or Joshua or David or Solomon, he would never have distinguished, as he did, between God and Caesar. Hence Jesus never meant to characterize all political authority as that of Caesar. When he spoke of "Caesar" he was not speaking symbolically; he meant the conqueror of his people, whose regime rested upon force alone. Government deriving its just powers from the consent of the governed is no more properly characterized as "Caesar" than is the government of ancient Israel under the laws of Moses. Nevertheless, it was the transformation of the Rome of the Caesars into the Holy Roman Empire that ended the ancient world and created the distinction — and opposition — of church and state.
The ancient world — the world of the ancient city — may be said to have come to an end when, in the third century of the Christian era, the Roman emperors extended Roman citizenship to the provinces. This, we observe, represented less of an elevation of the provinces than it did a leveling of Rome. Rome had become an imperial military despotism. The emperor's horse — or perhaps merely the latter half of his horse — could become a Senator. The self-governing institutions of republican Rome were dead. Rome was the administrative center of a regime that had no political center, because "the government of men had been replaced by the administration of things." The heart of the process whereby politics is replaced by administration is presented to us unforgettably in Shakespeare's Antony and Cleopatra.
Rome's conquest of the ancient world ended the civic life of the independent poleis. The gods of the conquered cities continued a shadowy existence for some time. When, however, everyone might become a Roman citizen, there was in principle but one authority for law. The gods who had been the many authors of the many laws of the many cities flickered out and died. There was only one city, which was no longer an ancient city, but the empire of the world. But by the logic of the ancient city — which to this point dominated the consciousness of civilized mankind — a single source of law implied a single God. It took little more than a century after the extension of Roman citizenship to the provinces before Constantine's conversion to Christianity began the process of transforming Rome (and the world understood as Rome) from polytheism to monotheism. Whether there was a providential necessity in this — as Aquinas and Dante and Shakespeare seem to have thought — there was certainly an inherent compulsion of reason in saying: one city, one law, one world, one God. That this God should be the God of Israel partakes of the same logic, for the God of Israel was not only understood to be the only God, but one who transcended the universe of which He was held to be Creator. Such a God could not be defeated by the legions of Rome or of any other power, whether in the world or out of the world.
The establishment of Christianity in the Roman empire obeyed the logic of the ancient city, in that membership in the political association carried the implied requirement of acknowledgment of, and obedience to, the God of that empire. The concept of heresy was virtually unknown to the ancient city. What Socrates was accused of is better understood as resembling what we might call being "un-American," that is, of disloyalty. Ancient cities lived on narrow margins of survival, and defeat in war could mean extinction or slavery. All the civic gods tended to be jealous gods for that reason. Belief as such was not central to fidelity. Obedience was central. But the Christian empire made belief central to fidelity, and heresy assumed an unprecedented gravity as an offense against the good order not merely of civil society, but of the world. While belief was elevated to an unprecedented level, obedience sank correspondingly. The decline and fall of the ancient empire replaced centralized Roman administration with the most decentralized, and most lawless, of regimes: feudalism. The Christian God of the Holy Roman Empire was not the author of the laws of France, Germany, England, Spain, or any other part of the Holy Roman Empire, in the sense in which He had been the author of the laws of Moses. He was the sanction for obedience to all the rulers — or laws — that were to be obeyed. But these laws were regarded as laws for a variety of reasons, ancient custom or tradition being foremost. And the divine law — the characteristic form of all law in the ancient world — was no longer the law of the earthly but of the heavenly city.
The extension of Roman citizenship to the provinces, followed by the establishment of Christianity, created a problem that went unsolved in the Christian West for a millennium and a half. That problem was how to discover a source of law for particular political communities within the larger framework of the cosmopolis of the city of God. A single political structure for all of Christendom, much less all of mankind, proved to be impossible. As Thomas Aquinas taught, human law must embody the prudence of the ruler. But who ought to be the ruler? And how are the governed to recognize their obligation to obey him? Aristotle addressed himself to the question of who should rule, and did so in terms of the moral and intellectual excellences that might comprise regimes. His answers were designed to gain acquiescence by philosophers and gentlemen. But he expected the generality of mankind to accept the judgments of the wise because they would be attributed to the gods. Thomas followed Aristotle, but Aristotle offered no solution to the problem of Christian empire. Dante, in one of the most remarkable works ever composed, developed an argument for universal empire based upon Aristotle's Metaphysics, while ignoring his Politics. This fact itself illuminates wonderfully the dilemma of the Christian West — and the causes of the wars of the Reformation — before the American Revolution.
In Protestant countries, the Reformation removed the anointing (and the excommunicating) of secular rulers from the jurisdiction of Rome. The doctrine of the divine right of kings was invented to enable kings to be anointed by bishops they had themselves appointed, rather than by appointees of the Pope. The interests of national kings and their peoples were certainly closer than those of popes or emperors. But however much the interest of kings and their peoples might seem close at a time of national peril — as at the time of the Spanish Armada — at other times they might be in the harshest conflict, with ensuing revolutions and civil wars. The national Church of England, established by Henry VIII's break with Rome, had as its most fundamental doctrine that of passive obedience to the king, under all circumstances and at any cost. But such a doctrine could not survive the contingency of the King himself becoming Catholic. In the Glorious Revolution of 1689, the Church of England itself was converted from the divine right of kings to popular sovereignty, exercised in and through the Parliament.
Long before the writings of Hobbes and Locke, Christianity sowed the seed of what we have come to call individualism by establishing a direct personal relationship between God and every human being. Nothing dramatizes this better than the opening scene in Bunyan's Pilgrim's Progress, in which Christian is fleeing from his family, crying out "What shall I do to be saved?" Salvation — citizenship in the City of God — is individual. Individuals are held to be saved by Christ's merit, but not by that of father or mother or brother. I do not mean to say that Christianity in any way devalued the family, only that family, clan, tribe, nation, the community of blood descendants, ceased to have the integral moral, political, and religious unity they possessed in the ancient city. A citizen of ancient Israel, living under the laws that God had given to Moses, believed himself to be already living in the city of God. In the ancient city — and the Old Testament here is typical — the individual sees himself primarily as a link in the chain of ancestors and descendants. Individuality — including personal immortality — plays virtually no role as a paramount concern. In the Christian Roman Empire, the Church was the visible representative of the City of God, but the City itself was not of this world. As personal immortality in the City of God came to be the paramount concern of Western man, political life was displaced from the central place in human life it had occupied in the ancient city.
The social contract theory embodied in the American Declaration of Independence solved a problem that had plagued Western civilization for more than a millennium and a half. Political authority was to be rooted in each particular political society as the result of the voluntary action of naturally free and equal individuals, whose natural freedom and equality was seen to be as much a dispensation of God as membership in the City of God. These free and equal individuals are enfranchised in the rights that they bring with them into civil society by the fact that they are a priori under the universal "laws of nature and of nature's God." There is then no tension between one's membership in that larger community, which in principle embraces all mankind, and one's particular obligations to one's own community, here and now. The Declaration of Independence recognizes, as did the medieval church, the divine government of the universe. But this government, while providing a pattern for human government, does not cause any divided allegiance in one's political obligation here on earth. The role played by the power of the Church to excommunicate rulers, and to dissolve the allegiance of their subjects, becomes in the Declaration the right of revolution.
But the power of the church — that is to say, of all the churches, or of whatever means a man may choose to direct his own way to his highest end — remains free of civil authority. This bonding of civil and religious liberty is the core of the idea of limited government, and hence of freedom in our world, for we are compelled both to rely upon and to enjoy a degree of personal autonomy that was inconceivable in the ancient city. But the principles by which this autonomy is to be guided — what Jefferson called the moral law — remain the same. And the ground of that autonomy is still the revelation and the reason that are our inheritance from the ancient cities of Athens and Jerusalem. The new order of the ages is radically novel in its solution of the political problem within the framework of a cosmopolitan, monotheistic universe. It is radically traditional in its conception of the ends, whether of reason or of revelation, to be served by that order.
Today we are faced with an unprecedented threat to the survival of biblical religion, of autonomous human reason, and to the form and substance of political freedom. It is important to understand why the threat to one of these is also the threat to all. It is above all important to understand why this threat is, above all, an internal one, mining and sapping our ancient faith, both in God and in ourselves. The decline of the West is the paramount reality facing us today. Perhaps our most immediate danger comes from the historical pessimism of those who counsel us that this is inevitable and that nothing can be done by taking thought. But this danger is itself a danger only if we believe it. It is precisely by taking thought that this superstition can be dispelled and, with it, the unreasoning fears that it breeds. As we enter this third century of the Constitution, let us renew our ancient faith, the faith of Abraham Lincoln,
that right make might, and in that faith let us, to the end, dare to do our duty as we understand it.
Harry V. Jaffa is a distinguished fellow at the Claremont Institute. He is Professor Emeritus of Government at Claremont McKenna College and the Claremont Graduate School. He received his B.A. from Yale, where he majored in English, in 1939, and holds the Ph.D. from the New School for Social Research. He is the author of A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War
Copyright © 2002, The Claremont Institute.