Friday, July 28, 2017

West on the American Founding (3): The Legal Enforcement of Religion?

In 1964, I was a student in Big Spring High School in Big Spring, Texas.  At the beginning of each school day, there was a reading of some Bible verses and a prayer over the public address system.  The next year, this stopped, because the school district chose to follow the decisions of the U.S. Supreme Court in Engel v. Vitale (1962) and Abington v. Schempf (1963), which declared that state sponsored Bible reading and prayer in public schools violate the First Amendment prohibition of any establishment of religion.

According to Tom West, these Supreme Court decisions were contrary to the American founders' belief that state governments should promote religious belief to form the moral and religious character of the citizens in a manner that supported the good order and liberty of American public life, and that one way to do this is to have Bible reading and prayers in public schools. 

West also points out that the no establishment of religion clause of the First Amendment applies only to the national government ("Congress shall make no law . . ."), and not to the states, because the Founders wanted state governments to legally enforce morality and religion.  The fact that the United States Constitution says nothing about the legal enforcement of morality and religion does not mean that the founders thought this was not a proper function of government, because they assumed that this would be a matter for the state governments rather than the national government.  Of course, West recognizes, the founders thought the legislative promotion of religious belief would have to be consistent with the natural right of religious liberty, so that no one would be compelled by government to profess a religious belief contrary to their conscience.

I agree with West that the founders thought religion was important for the moral order of a free society.  I agree that they thought that the best way to promote religion was to secure religious freedom so that families, churches, and other private associations could provide religious instruction, with everyone being free to embrace any religious tradition that respects the liberty of other religious groups.

I disagree, however, with West's claim that the founders thought the coercive enforcement of religious belief by law was a necessary function of government that was consistent with religious liberty.  When I was a high school student in Big Spring, I was a devout fundamentalist Baptist.  But this had nothing to do with the few minutes of Bible reading and prayer at the beginning of the school day.  My religious beliefs came from my daily reading of the Bible early in the morning before I went to school and from my membership in a Baptist church. 

If there is a natural desire for religious understanding rooted in our evolved human nature, then we can expect that in a free society religious belief will arise spontaneously in the natural and voluntary associations of society without any need for governmental enforcement.  That is what the founders wanted to happen.  But West seems to believe that the founders would have been distressed by the possibility that religious belief must disappear if it is not legally enforced by government through means such as state-sponsored Bible reading and prayer in the public schools.

West identifies eight ways in which American governments have supported religion (208-212).  Oddly, most of these means of supporting religion turn out to be remarkably weak, and many were rejected during the founding period.  In fact, West even admits that many of them were contrary to what the founders wanted.  As he says, "some means of support were already contentious in the founding and were mostly abandoned soon afterwards" (208).

First, taxpayer funding of particular Christian denominations was common in the American colonies.  But West admits that after 1776 only four New England states--Vermont, New Hampshire, Massachusetts, and Connecticut--continued to do this.  By 1833, even these four states had rejected this policy.  Doesn't this contradict West's argument for how the founders wanted state governments to promote religion?

Second, churches in most states were exempt from property taxes, and this has continued up to the present.

Third, West notes that many state governments supported teaching "a sort of generic Protestantism" in the public schools through prayers, Bible reading, and religious themes in some of the instruction.  This is what the Supreme Court overturned in the early 1960s.

West is silent, however, about the evidence that there was very little religious instruction in the public schools in the 19th century, evidence that is surveyed by R. Laurence Moore (2000).  When Horace Mann became the first secretary of the Massachusetts Board of Education in 1837, he complained about the "alarming deficiency of moral and religious instruction" in the schools.  In 1846, the General Assembly of the Presbyterian Church issued a report lamenting that "the common school system is rapidly assuming not a mere negative, but a pointedly anti-Christian character."  After the Civil War, many states had legislation that explicitly limited Bible reading in the public schools to no more than five minutes at the beginning of the school day as a "morning form" exercise.  So religious instruction was not an important part of the regular school day.  That was my experience at Big Spring High School.  There was no religious instruction in the school at all.  The Bible reading and prayer at the beginning of the day was nothing more than a ceremonial exercise that lasted no more than a few minutes.

Fourth, West thinks that state laws for punishing blasphemy promoted religious belief.  He weakens his argument, however, by agreeing with historian Mark McGarvie that these laws "were generally ignored as anachronisms of an earlier age."  The anti-blasphemy laws were almost never enforced.

Nevertheless, West observes that there were "a few reported cases" of people being punished legally for blasphemy.  He doesn't tell his readers how many cases there were.  He is silent about the report of one historian that he could identify no fewer than 20 blasphemy cases in the first half of the 19th century, which is less than one blasphemy case per state in 50 years.  Chris Beneke (2015) reports this in an article that West quotes favorably, but he does not mention this.

The one case that West highlights is People v. Ruggles, a 1811 New York Supreme Court case with a famous opinion written by James Kent, which is often quoted by those who want to make the argument that America was intended by the founders to be a "Christian nation."  Kent upheld the defendant's conviction for blasphemy in saying "Jesus Christ was a bastard, and his mother must be a whore."  Such words were surely uttered with a "wicked and malicious disposition" to be publicly offensive, Kent wrote, and "not in a serious discussion upon any controverted point in religion."

"The free, equal, and undisturbed, enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured," Kent insisted, "but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right."  So, for example, Kent indicated Tom Paine's attack on Biblical Christianity in The Age of Reason should be protected as a "decent discussion."  And, in fact, the publication of Paine's book in America was not punished as blasphemy.

Kent also indicated that blasphemy against Islam should not be punished, because Muhammed was obviously an "impostor."

In reporting this case, West does not tell his reader that Mr. Ruggles' punishment for blasphemy was remarkably light--three months in prison and a $500 fine.  According to the Mosaic law (Leviticus 24:16) adopted in Massachusetts and other American colonies, blasphemy was a capital crime.  West is very clear in declaring that the natural right to religious liberty does not include the right of religious believers to kill infidels, because "religious liberty must be exercised without harming others" (33).  West often appeals to this libertarian principle of "no harm" as part of the founders' understanding (33-35, 140, 148-53). 

Should we say that a New Testament Christianity that enforces the Mosaic law of the Old Testament violates natural rights?  If so, we would have to accept the argument of Roger Williams that the New Testament demands an absolute separation of church and state, and thus a rejection of Old Testament theocracy, but this would contradict West's argument for the legal enforcement of religious belief.

Jefferson is famous for declaring: "it does me no injury for my neighbor to say there are twenty gods or no god.  It neither picks my pocket nor breaks my leg."  But West says that "almost every leading founder" disagreed with this claim.  In fact, even Jefferson himself contradicted it in asking, "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?"  If too many of my neighbors say "there is no god," West asserts, the liberties of the people will have no "firm basis," and thus my atheist neighbors will have done me a great injury (205).

Well, then, why wasn't Mr. Ruggles executed?  And why were there no more than 20 cases of people tried for blasphemy over 50 years in America?  Why didn't the founders continue the colonial tradition of legally enforcing the Mosaic law with capital punishment for blasphemy and infidelity?

West does not mention that in one of John Adams' letters to Jefferson (January 23, 1825), Adams said that he hoped that all the state laws against blasphemy would be repealed, and only then would religious liberty be secure.

The fifth means for legally enforcing religion is to have a religious test for public office.  All of the state constitutions except for Virginia and New York had such tests.  West quotes the oath that members of the Pennsylvania state legislature had to take: "I do believe in one God, the creator and governor of the universe, the rewarder of the good and punisher of the wicked, and I do acknowledge the scriptures of the Old and New Testament to be given by divine inspiration."

West explains: "The argument for religious tests was the same as for other forms of government support: that religion supports morality" (210).  He then quotes from a speaker at the Massachusetts ratifying convention who condemned the "no religious test" clause of the U.S. Constitution: no religious tests "would admit deists, atheists, etc., into the general government; and, people being apt to imitate the examples of the court, these principles would be disseminated, and, of course, a corruption of morals ensue."

West identifies religious tests as part of the "founders' consensus."  But if this is so, why did the founders at the Constitutional Convention vote unanimously and without any controversy for "no religious tests" in the Constitution?  And why did all of the states with religious tests abolish them during the founding period, thus following the example of the national constitution?

To explain this, West says that Chris Beneke "rightly notes" that in "founding America . . . libertarian principles . . . repeatedly triumphed over local prejudices and discriminatory laws."

So now it seems that the "founding consensus" is based on "libertarian principles" dictating that the legal enforcement of religious belief is not necessary to avoid a corruption of morals.  But this contradicts West's argument for the legal enforcement of religion as essential to the "founding consensus."

West does not mention the most revealing evidence that most of the founders were not Christians, which comes from a notorious episode in the Constitutional Convention of 1787 in Philadelphia. On June 28th, the delegates appeared to be deadlocked in their debates because of the opposing interests of large States and small States. Benjamin Franklin rose to propose that the Convention invite some local minister to attend and offer daily prayers to invoke the aid of God. "If a sparrow cannot fall to the ground without God's notice, is it probable that an empire without his aid?" According to a popular legend, the Convention accepted Franklin's proposal, and from the moment that they had these prayers, the deadlock was broken by God's providential intervention. This story has been repeated by many American ministers as evidence that the American Constitution was divinely inspired. 

I first heard this story as a child when it was part of a sermon at the First Baptist Church of Wills Point, Texas.  But years later, as a college student in a class at the University of Dallas on the American Founding, I was shocked when I looked at James Madison's notes for the Convention as edited by Max Farrand in the Yale University Press edition (particularly 1:450-52, 3:470-73, 3:499, 3:531), and I saw that this story was false. Franklin did make a motion for daily prayer at the Convention, which was seconded by Roger Sherman.  But the response was silence.  Finally, Alexander Hamilton offered a quip about how they did not need "foreign aid." The motion was dropped without a vote.

This is not the action of good Christians. It is the action of men who respected religious belief, but who did not believe that God would answer their prayers and intervene to promote their political success. Since the meetings of the Convention were kept secret, they were not concerned about public appearances. If the meetings had been open to the public, they surely would have felt compelled to accept Franklin's motion.

West might say that this only confirms his claim that the founders support for religion was based not on their belief that religion was true but on their belief that it was useful for supporting morality, because while a few human beings are enlightened enough to see the rational argument for morality, the great multitude of human beings lack such rationality, and for them morality must be based on religious faith, regardless of whether that faith is true (see 198-203). 

But if West is right about this, why did the founders decide that there was no need for religious tests for those in public offices?  Did they assume that those in public offices would be the enlightened few who did not need religious belief to support their moral character?  Or did their "libertarian principles" lead them to believe that public officeholders would have their moral character shaped by American society in ways that did not require any legal enforcement of religious belief?  After all, even though there are no legally enforced religious tests for public office in America, there is an informal social expectation that officeholders will not publicly identify themselves as atheists.

The sixth means of enforcing religion mentioned by West is the support for chaplains in legislatures and the military and the use of government buildings for religious activity.

The seventh means is Sunday closing laws.  Oddly, however, West is silent about the intense controversy in the 19th century over the federal law mandating delivery of the mail on Sundays.  From 1775 to 1912, mail was delivered seven days a week.  For Christians, this was a violation of the Sabbath.

The final means of enforcing religion noted by West is official proclamations and ceremonies with religious themes, such as national days of prayer and thanksgiving.

As one looks over West's list of eight means of legally enforcing religion, one has to notice how remarkably weak they are, and how the "libertarian principles" of the founders "repeatedly triumphed over local prejudices and discriminatory laws."

West often appeals to the libertarian "harm principle"--that the government should punish individuals only for conduct that harms others (33-35, 140, 148-53, 234).  For example, he notes that while the state laws regulating sex were strict during the founding period, they were hardly ever enforced except when the violations were "open and notorious."  "Conduct that is not harmful if kept private could safely be ignored."  The strict enforcement of these laws punishing victimless crimes began at the end of the 19th century through the influence of "moralistic Progressivism," which was contrary to the founding (233-34).

One can also see in the state laws concerning religion a fundamental contradiction that is clearly conveyed in the Delaware Constitution of 1792: "Although it is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted; yet no man shall be compelled to attend any religious worship, [or] to contribute to the erection or support of [any church]."

On the one hand, the state needs the piety and morality promoted by religious activity; on the other hand, the state cannot compel that religious activity without violating religious liberty.

There are only two ways to escape this contradiction.  The theocratic way is to legally establish a religion and thus give up religious liberty, which is what the colonial governments like Massachusetts did before the Revolution.  The libertarian way is to erect a "wall of separation" between church and state, as Roger Williams called it, which is what Williams did in Rhode Island.  In some previous posts (here and here), I have argued that Williams was correct, and that his Christian libertarianism was rooted in New Testament Christianity.

When Williams was forced to leave the Massachusetts Bay Colony in 1637 and move with his followers to Providence, they established a new government by signing this agreement: "We whose names are hereunder, desirous to inhabit in the town of Providence, do promise to subject ourselves in active and passive obedience to all orders or agreements as shall be made for the public good of the body in an orderly way, by the major consent of present inhabitants, masters of families, incorporated together in a Towne fellowship, and others whom they shall admit unto them only in civil things." 

Since the town meeting was limited to "civil things" as opposed to "spiritual things," this was the first expression in the new world of the absolute separation of church and state.

The state of Virginia followed the libertarian path of Williams.  Section 16 of the Bill of Rights in the 1776 Constitution guaranteed "free exercise of religion," asserting that "the duty which we owe to our creator, can be directed only by reason and conviction, not by force or violence."  The Virginia Statute for Religious Freedom, adopted in January 1786, stipulated that "our civil rights have no dependence on our religious opinions" and guaranteed that "all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities." No Virginian would be required to "frequent or support any religious worship, place, or ministry whatsoever."

West tries to argue that this Virginian separation of church and state, as promoted by Jefferson and Madison, was not typical for the American founders.  But West has to admit that the historical movement in the states after 1787 was toward the "libertarian principles" of Williams, Jefferson, and Madison.

Tuesday, July 25, 2017

West on the American Founding (2): Midwest Straussianism

I have written some posts on Midwest Straussianism (here) and on Tom West as a former West Coast Straussian who has become a Midwest Straussian (here).

Michael and Catherine Zuckert--in The Truth About Leo Strauss (2006)--have pointed to the tension in Leo Strauss's position on American liberal democracy as shown in three propositions:

1. America is modern.

2. Modernity is bad.

3. America is good.

To resolve the obvious contraditions between these three propositions, each of the three schools of Straussian thought has had to deny, or at least downplay, one of the three propositions.  The Midwest Straussians (led by Martin Diamond) deny or at least express doubts about the second proposition, because they are impressed by the apparent improvements in the human condition brought by modernity that seem to show clear progress beyond ancient thought.  In this way, the Midwest Straussians cast doubt on what the Zuckerts identify as Strauss's "signature idea"--his "return to the ancients."

I have identified myself as a Midwest Straussian--as someone who combines Aristotelian ethics and Lockean politics, in affirming (contrary to Strauss) that one can embrace both ancient virtue and modern liberty.  If I have anything special to contribute to this Midwest Straussianism, it's my argument that Aristotelian liberalism can be rooted in a biological naturalism that is supported by Darwinian science.

In a comment on one of my posts, Tom West denied that he was rightly identified as a Midwest Straussian.  He observed: "The implication of my argument is that the American Founders do not have to be viewed as breaking with Locke (or as embracing some sort of incoherent 'amalgam' in their political theory) in their simultaneous concern with natural rights and with the moral and religious character of the people."

West's new book--The Political Theory of the American Founding--is an elaboration of this argument for his interpretation of the American founding as based on a coherent theory of natural rights--and not an "amalgam" of contradictory traditions of thought--that is concerned both with securing individual liberty and with forming the moral and religious character of the community. 

But despite his denial of the label, this is exactly what I see as Midwest Straussianism, which argues that Strauss was wrong to see the Lockean modernity of America as morally and intellectually degrading in promoting liberty for selfish individualism, while failing to cultivate the higher moral and intellectual virtues of human excellence, because in fact the Lockean liberalism of the American founding aims to secure both liberty and virtue as being mutually dependent.

That I am right about this is suggested by West's account of the three stages in his intellectual development as shaped by Strauss and Harry Jaffa (ix-x).  First, as a graduate student, he reports, he accepted the idea from Jaffa, Diamond, and others influenced by Strauss that the American founding was based on a Lockean individualism that liberated the acquisitive materialism of human beings, while providing no support for moral or religious duties or for the classical virtues.  At this point, I would say, West was an East Coast Straussian (like Harvey Mansfield, Walter Berns, and Allan Bloom), who accepted the American founding as "low but solid" in securing individual liberty, without any aspiration for cultivating the human excellences as was sought in the ancient regimes praised by Plato and Aristotle.

Later, Jaffa changed his mind and argued that Strauss's Locke of acquisitive individualism was the "esoteric" Locke, but that the Locke as read by the American founders was the "exoteric" Locke who linked himself to Richard Hooker's natural law teaching, who could be seen as an Aristotelian Locke.  West says that he accepted this modified position.  At this point, West was a West Coast Straussian, who believed that the American founders were not purely modern, because they interpreted Lockean modernity as compatible with the ancient Aristotelian tradition.

Finally, West reached the third stage of his thinking, when he began to disagree with the thought of Strauss and Jaffa that "there is something wrong with the unvarnished Locke," and he began to see that the American founders saw correctly that Lockean modernity promoted both liberty and virtue, and therefore there was nothing morally or intellectually dubious about it.  At this point, West has become a Midwest Straussian, who affirms that the modernity of America is good.  1. America is modern.  2. Modernity is good.  3. America is good.

West claims, however, that he does not concern himself in his new book with the question of the European origins of the founders' political theory, and so he does not argue here for Locke as the primary source for the founders' political thought.  He prefers to avoid that debate, so that he can concentrate on the founders' views considered on their own terms, without being distracted by the question of European influence.  But while this is what West says, at the beginning of his book, the book has many references to Locke, indicating that West is reading the founders through the lens of his interpretation of Locke (see, for example, 21-22, 47, 56, 75, 90, 94, 103, 107-108, 172-75, 201, 226-27, 240-41, 311, 315-17, 406).

The Zuckerts originally pointed to Diamond's essay "Ethics and Politics: The American Way" (1992) as the first statement of Midwest Straussianism.  West's book is in some ways a response to and modification of the argument in that essay.

In 1959, the American Political Science Review published Diamond's influential article "Democracy and The Federalist: A Reconsideration of the Founders' Intent," in which he argued that the founders thought that government should not be concerned with shaping the moral character of its citizens.  In making this argument, West says, Diamond "reads the founding through a Straussian lens" that assumes that the Lockean modernity of the American founding rejects the ancient teaching that government must be concerned with the moral formation of its citizens (172). 

West observes that in Diamond's "Ethics and Politics," originally published in 1977, he "substantially revises his earlier argument," and he "admits there that the founders did care about citizen virtue, although he continues to underrate the extent" (170, n. 13).  So while West agrees with Diamond's position in this second essay, West thinks he didn't go far enough in recognizing the extent to which the founders were devoted to forming the character of the citizens.

West seems to disagree with Diamond in two ways.  First, West criticizes Diamond for saying that the founders promoted only what Diamond called the "less lofty" and "modest excellences" of the "bourgeois" and "republican virtues" (181).  In fact, West claims, the founders also saw the need for the "manly and assertive virtues," particularly in wartime, and for all the "higher virtues," including the intellectual virtues of the philosophic life (281-91, 296-306). 

Actually, Diamond seems to agree here with West, because Diamond sketches an ascent of the virtues from the "bourgeois virtues" and the "republican virtues" up to the higher virtues of the "natural aristocracy of virtues and talents," as Jefferson called them, and then finally the intellectual virtues of the "love of learning" (Diamond 1992, 360-63).  So here West is mistaken in seeing a disagreement with Diamond.

On a second point, however, there does seem to be a fundamental disagreement.  Diamond and West agree that the American founders wanted America to form a common character among American citizens.  But for Diamond, the founders wanted "character formation, but not by use of the laws" (364), because they separated state or government from society, and while government would be limited to protecting individual rights, the social realm of private life would shape the character of people in civil society in their families, churches, schools, and other voluntary associations (345-46).

For Diamond, this separation of state and society is what sets modern liberalism apart from the ancient understanding of politics:

"In the old, broader view, government was inextricably linked with society.  Since it was the task of the laws to create a way of life or to nurture among citizens certain qualities of character, then the laws necessarily had to penetrate every aspect of a community's life; there could be no separation of state or government and society, and no limitation of the former with respect to the latter.  But under the new liberal doctrine, with its substantive withdrawal of the character-forming function from the domain of the political, it became natural to think of state and society as separated, and of government as limited to the protection of individual life, liberty, property, and the private pursuit of happiness.  It became both possible and reasonable to depoliticize political life as previously conceived, and that is precisely what happened wherever the new view came to prevail.  Perhaps above all, religion was depoliticized; belief and practice regarding the gods, which classical political philosophy had held to be centrally within the purview of the political community, was largely relegated to private discretion.  Similarly depoliticized were many other traditional political matters, such as education, poetry and the arts, family mores, and many of the activities we now lump under the term 'economics.'  In the premodern understanding, these were precisely the matters that had to be regulated by 'laws with teeth in them,' because they were the essential means by which a regime could form human characters in its own particular mold" (345-46).

But while Diamond thus presented the founders as rejecting the ancient understanding that government must coercively enforce moral character and religious belief by law, West argues that the founders agreed that the enforcement of moral and religious law was the purpose of government (177-81).  While Diamond thought that the founders separated government and society, and relied on society, rather than government, to enforce morality and religion through family life, churches, and other private voluntary associations, West argues "that according to the founders, virtue is necessary for freedom, and that government cannot rely solely on private institutions such as families and churches to sustain it" (270).  Moreover, according to West's interpretation of the founders' understanding of politics, this governmental enforcement of moral law includes the governmental promotion of religious belief and practice (201-14).  Thus, West seems to present the founders as agreeing with the ancient understanding, as interpreted by Diamond, that in forming the moral and religious character of the citizens, "the laws necessarily had to penetrate every aspect of a community's life."

But then, in some parts of his book, West pulls back from this position and moves closer to Diamond's position.  "No founder," West observes, "wanted an extreme Spartan regimen that inculcates morality at the expense of liberty" (6).  So, one might ask, if the founders did not want "an extreme Spartan regime," did they want a moderate Spartan regime?

West even endorses, in some parts of his book, Diamond's liberal separation of government and society.  The founders rightly separated the public from the private sphere, West argues, and they saw that while the purpose of politics is securing life, liberty, and property, the purpose of life is pursuing happiness.  Government can secure the conditions for pursuing happiness, but it cannot rightly define the content of happiness.  Nor can government rightly define the one true religion.  "The higher things were expected to be found not in public but in private life. . . . The true home of religion and philosophy and science, of revelation and reason, of the family and domestic happiness, is in private society" (301-306, 407-408).  This separation of government and society and the securing of individual liberty in private life from coercive supervision by government makes modern America different from ancient Sparta, although much of colonial America prior to 1776 looked like a Christian Sparta (264, 268, 288).

Notice that West and Diamond seem to agree in seeing Sparta as the model of the ancient understanding of politics, in which the governmental enforcement of a communal moral and religious character makes impossible any individual liberty in a private sphere of life.  Neither West nor Diamond say anything about Athens.  Neither considers the possibility that Athens might have shown an ancient Greek form of liberalism that foreshadowed some of the features of the modern American liberal social order.

West and Diamond--like many Straussians--seem to agree with Fustel de Coulanges (in The Ancient City, book 3, chapter 17) that "the ancients knew nothing of individual liberty," because the state was omnipotent, and there was no private life free from state control.  But as many scholars of the ancient world have noted, this ignores the evidence for some individual liberty in the ancient world, particularly in Athens.

West and Diamond do implicitly refer to Athens by appealing to Plato and Aristotle's understanding of politics.  But West and Diamond are silent about those passages in the writings of Plato and Aristotle that recognize the claims of Athenian liberalism. 

This is an important point for judging the modern liberal theory of natural rights.  If it is true that all human beings are born free and equal by nature, if the state of nature is really natural in expressing human nature, then one would expect that the natural human propensity for claiming natural rights would manifest itself throughout human history--from the original hunter-gatherer ancestors in the primitive state of nature without government to ancient Athens to modern America.  If for hundreds of thousands of years, human beings never claimed natural rights until the last few centuries, wouldn't that suggest that this idea of natural rights is not grounded in human nature, but is a purely artificial construction of recent liberal thought?  (In some previous previous posts, I have argued that there is evidence supporting the Lockean evolutionary history of politics.)

We know that there were liberal political thinkers in ancient Athens who saw government as arising from a social compact limited to securing individual rights by protecting citizens from violence and enforcing contracts.  We know this because Aristotle identifies Lycophron and Hippodamus as proposing this. 

West quotes the passages from the Politics on this (362).  But he emphasizes that Aristotle rejects these ideas, because the polis of Lycophron and Hippodamus is not concerned with making its citizens virtuous, and therefore it is not truly a polis.  West claims that the American founders would agree with Aristotle's criticism, because they agreed that a good political community must legally enforce moral virtue.

If West is right in distinguishing liberty as the purpose of politics from virtue as the purpose of society, then why shouldn't he respond to Aristotle here by saying that while the purpose of the polis qua society is the virtuous and happy life, it does not follow that the purpose of the polis qua state is to use coercive force against its citizens to make them virtuous and happy?

West invokes Aristotle's argument that a genuine community requires the formation of character through the "associations" (koinonia) of "friendship" (philia) (264-65, 300).  But West does not mention Aristotle's claim that the political friendship of citizens is only a friendship of utility, not a friendship of virtue, and that the friendships of virtue, including the friendships of philosophers, belong to the private life.  Here we can see the elements of an Aristotelian liberalism, which has been the topic for various posts (here and here.).

West is silent about the evidence that ancient Athens was remarkably liberal in its openness to the free exchange of goods and ideas in a society organized largely through voluntary associations, including private associations of philosophers (like the Academy and the Lyceum).  I have written about this in previous posts (here and here).

West is also silent about the argument for liberal democracy in book 8 of Plato's Republic.  Democracies like Athens are the only cities in which one can freely choose to live the philosophic life, which is why Socrates lived in Athens and not Sparta.  Plato's Socrates concludes: "anyone by nature free regards this city alone as a fit place to live" (Republic, 562c).

Wednesday, July 19, 2017

West on the American Founding (1): The State of Nature and the Evolution of Religion

At the next convention of the American Political Science Association in San Francisco (August 31-September 3), I will be on a panel on Thomas West's new book--The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom.  Many scholars of the American Founding have concluded that the founders' political thought was an amalgam of different, and even contradictory, traditions of thought, such as liberalism and republicanism.  Against this "amalgam" thesis, West argues--persuasively, I think--that the founders largely agreed on one coherent understanding of politics--the political theory of natural rights.  Their disagreements (as in the debates between the Hamiltonians and the Jeffersonians) were disagreements not about the end of government (securing natural rights) but about the best means for achieving this end.

Another recently published book--Randy Barnett's Our Republican Constitution--makes this same argument for the American founders as agreeing on the political theory of natural rights.  West recognizes this, but he claims that "Barnett's libertarian reading is silent on the founders' concern with the people's moral character" (46, n. 10).  For West, this "libertarian reading" of the founding is mistaken in ignoring how the founders' legally enforced morality and religion through the constitutions and laws of the states.  But then, West sometimes contradicts himself and accepts a libertarian interpretation of the founding as seeing the purpose of politics being limited to securing individual freedom, so that morality and religion are shaped in families and the voluntary associations of private society rather than through coercive public legislation.  I will elaborate this point in a future post.

In his explication of the founders' theory of natural rights, West agrees with Philip Hamburger (1993) in seeing that theory as based on five arguments.  First, natural rights are identified as part of the natural liberty that human beings have in state of nature in the absence of government.  This idea of the state of nature is fundamental.  West says: "The state of nature is the basis of the founders' understanding of politics" (409).  And in that state of nature, "self-ownership is the original natural natural right" (396).  Except for children, who are under the temporary natural authority of their parents, all individuals have equal liberty in that no one is under the rule of anyone else without their consent.  But these natural rights in the state of nature without government do not include the acquired rights that exist only as created by government.

Second, natural rights are constrained by natural law.  In the state of nature, human beings can use reason to discover natural law.  So, for example, they can reason that since all human beings seek to enjoy their natural liberty, they will resist and retaliate against those who infringe on their liberty; and therefore, human beings can conclude that the best way to preserve their life and liberty is to respect the equal liberty of others by not harming them.  They can thus see the wisdom in the Golden Rule--do unto others as you would have them do unto you--or the Silver Rule--don't do to others what you would not want them to do to you.  They will enforce these rules of natural law as customary norms for society.  But even if many, or even most, human beings can see the wisdom in this natural law, many will not understand it or observe it, and their aggressive attacks on others will make the natural rights insecure in the state of nature where there is no government.

Third, to overcome this insecurity of natural rights in the state of nature, human beings consent to establish governments to secure their natural rights through formal laws and institutions for making, enforcing, and adjudicating those laws.  In submitting to the protection of government, people must give up some of their natural liberty to government so that it can protect the remainder.

Fourth, although the civil law of government is not the same as the natural law in the state of nature, that civil law must approximate the natural law in securing natural rights.  So, for example, the civil laws of property will be highly variable.  But if those governmental laws of property do not adequately protect the natural rights of property, people have the natural right to overthrow the government, return to the state of nature without government, and establish a new government that they judge will better secure their natural rights.

Fifth, as long as the civil laws approximate the natural law, there is no necessary inconsistency between civil law and natural law.  So, for example, the United States Constitution is civil law and not natural law, but constitutional law can be judged by the standard of natural law as to how well it secures natural rights.

Affirming the reality of the state of nature is the first step in this line of reasoning, and it is not enough, according to West, to see the state of nature as purely "hypothetical" or "fictional," because it must be seen as really existing in human history, past and present (96-111).  Whenever human beings are without a government or common superior over them, they are in the state of nature.  In the prehistoric past, all of our human ancestors lived in foraging bands without government, and thus they were in the state of nature.  As I have argued in other posts (here, here, here), the Darwinian account of the evolutionary state of nature largely confirms the reality of this Lockean state of nature among hunter-gatherers.

The state of nature is not confined to the prehistoric past.  Since there is no one world government, the state of nature exists between governments.  And even within societies with governments, individuals can revert to a state of nature when they find themselves threatened by aggressors, and there is no chance to appeal to governmental protection.  Also, when people revolt against a government, they put themselves back into a state of nature.  So when the Americans declared themselves independent of Great Britain, they were momentarily in a state of nature, until they had consented to new governments.

If the political theory of natural rights is correct, natural rights are those rights that human beings have claimed in the state of nature.  I have argued that Darwinian studies of life in the evolutionary state of nature of foraging bands does show that foragers claim equal rights to life, liberty, and property.

But what about the claim to religious liberty as a natural right?  As West and Vincent Phillip Munoz (2015) have shown, it was common in the first American state constitutions to make this claim.  So, for example, the North Carolina Constitution of 1776 declared: "That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience." 

But do we see foragers in an evolutionary state of nature making such a claim to religious freedom?

Hunter-gatherers do not typically show a religion of worshipping "Almighty God."  The monotheistic religions of worshipping a Creator God who enforces a moral law for human beings and intervenes in human affairs for their salvation did not appear in human history until the "Axial Age"--the six centuries before Christ--when Zoroastrianism, Judaism, and Christianity appeared for the first time.

The earliest form of religious belief is animism, which has been found among all hunter-gatherers, and which was probably the first form of religious experience for our earliest human ancestors.  In animism, there are no real gods, but there are various kinds of invisible spirits with limited powers that permeate all of nature--plants, animals, and even physical phenomena such as thunderstorms.  These spirits influence human life.  But they do not enforce any moral law for human beings (Peoples, Duda, and Marlowe 2016; Sanderson 2014, 339-53).

The first professional religious practitioners were shamans, who have been found in almost all foraging bands, and who continue to appear in some form in almost every society.  Shamans are believed to have the power to transform themselves through ecstatic trances to communicate with invisible spirits to solve problems--most commonly through healing and divination.  Successful shamans provide the service to their customers of interacting with the invisible forces that control unpredictable important outcomes--such as recovering from illness, success in hunting, communicating with the dead, and protecting people from evil spirits and malevolent magic (Eliade 2004; Singh 2017).

After the move from foraging bands to agricultural settlements, and the transition to large-scale chiefdoms and states, "high gods" appear for the first time--gods who are more active and powerful than the spirits of animism.  First, polytheistic religions have many specialized high gods who are much like human beings but more powerful.  Then, in the Axial Age, the monotheistic religions teach that there is one Creator God who transcends the world He created, and who enforces a moral law for human beings.

Evolutionary psychologists have surveyed the evidence that these religions of High Gods or Big Gods arose by cultural evolution in large-scale cities and states to solve collective action problems by persuading people that the social norms of cooperation will be enforced by divine rewards and punishments--perhaps even eternal bliss in Heaven and eternal punishment in Hell.  I have written about this in a previous post.

Evolutionary psychologists, beginning with Darwin himself, have explained the this evolution of religious beliefs and practices as a product of both natural evolution and cultural evolution.  By nature, human beings have the evolved propensity for "mind-reading"--for imagining that their are many intentional agents in the world who act purposefully according to their beliefs and desires.--because it is an evolutionary adaptation for successfully navigating through a world of intentional agents, both human and nonhuman.  This capacity for detecting intentional agents can easily become so hyperactive that human beings imagine the existence of invisible supernatural agents.  Thus, religion can be explained as an evolutionary manifestation of  a "hyperactive agency detection device" in the human brain, which I have written about in earlier posts (here).

That religious belief really is an evolutionary adaptation and not just an indirect by-product of some truly adaptive function of the brain is suggested by the evidence that religion promotes health and reproductive success.  Devout religious believers tend to have better physical and mental health and longer lives than those who lack such religious devotion.  Religiosity also increases fertility, and the most devout religious believers (like Orthodox Jews) tend to have the highest average number of offspring.  Atheists tend to have the lowest rates of fertility (Sanderson 2014, 344-50). 

This suggests that religion is rooted in evolved human nature, that the desire for religious understanding should be included on the list of 20 natural desires, and that atheists who advocate the abolition of religion are foolish.  This explains why evolutionary psychologists like Leda Cosmides disagree with the "new atheists" like Richard Dawkins, as I indicated in a previous post.

But let's turn back to my earlier question: if there is a natural desire for religious belief in the evolutionary state of nature, did our foraging ancestors express that as a natural claim to religious freedom?  The animism and shamanism that have dominated the religious life of foragers seem to have arisen voluntarily through the competition of religious practitioners for customers, and there is no priestly or governmental bureaucracy for coercively enforcing belief.

The monotheistic religions that have arisen over the past few thousand years have often used coercive force to punish heretics and infidels.  But there have also been periods in which monotheistic believers have advocated religious liberty--such as New Testament Christianity during its first 300 years.  Christian advocates of religious toleration and liberty like Roger Williams have defended this as a revival of the New Testament teaching, which might also be seen as a revival of the religious liberty enjoyed by foragers in the state of nature.  The liberalism of religious liberty and toleration could then be understood as a return both to original New Testament Christianity and to the evolutionary state of nature.  (I have written about this here.)


Barnett, Randy E. 2016. Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York: Broadside Books, 2016).

Eliade, Mircea. 2004. Shamanism: Archaic Techniques of Ecstasy. 2nd paperback edition. Princeton, NJ: Princeton University Press.

Hamburger, Philip A. 1993. "Natural Rights, Natural Law, and American Constitutions." Yale Law Journal 102: 907-60.

Munoz, Phillip Vincent. 2015. "Church and State in the Founding-Era State Constitutions." American Political Thought 4: 1-38.

Peoples, Hervey C., Pavel Duda, and Frank W. Marlowe. 2016. "Hunter-Gatherers and the Origins of Religion." Human Nature 27:261-82. doi10.1007/s12110-016-9260-0

Sanderson, Stephen K. 2014. Human Nature and the Evolution of Society. Boulder, CO: Westview Press.

Singh, Manvir. 2017. "The Cultural Evolution of Shamanism." Behavioral and Brain Sciences, forthcoming.

West, Thomas G. 2017. The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom. Cambridge, UK: Cambridge University Press.

Thursday, July 06, 2017

John Mizzoni's Defense of Kantian Ethics as Compatible with Darwinian Evolution

In May of last year, I read a book manuscript for Lexington Books--John Mizzoni's Evolution and the Foundations of Ethics.  I recommended that it be published, because no other book has done what this book does in surveying the application of evolutionary reasoning to all the major theories of ethics that have been developed by contemporary moral philosophers.

In my report, I did state some disagreements with Mizzoni's arguments.  My most fundamental disagreement was my denial of Mizzoni's claim that Kantian ethics was compatible with evolutionary science's account of human nature and human morality.  I argued that the general conclusion emerging from evolutionary moral psychology is that the Humean sentimentalists are right, and the Kantian rationalists are wrong.  This is clear, for example, in the studies of psychopaths that show that their moral poverty arises not from any deficiency in their capacity for rational judgment but from their lack of moral emotions.  I also argued that in order to defend Kantian ethics, Mazzoni simply assumed, without any supporting argumentation, the truth of Kant's dualistic separation of is and ought as belonging to two worlds--the phenomenal and the noumenal, the realm of nature and the realm of freedom.

I elaborated these points in a post.

Mizzoni's book has now been published.  The book shows some revisions in response to my suggestions and criticisms.  He responds to my major criticisms in two passages.  In the section of his book where he responds to "potential objections," he has added one of my objections.  He writes:
"PO5.  By premising my inquiry on the landscape of moral philosophy, I am making unwarranted assumptions.  It might be objected that by assuming the distinction between is and ought, the distinction between metaethics and normative ethics, and separating biological inquiry from normative inquiry, I am assuming a Kantian ethic and a Kantian metaphysics.  The objection implies that I have characterized all normative ethics as Kantian and thereby disallowed a Darwinian explanation of morality."
"I do not think that observing a gap between statements of fact (is) and statements of ethics (ought), or a distinction between metaethics and normative ethics, or separating biological inquiry from normative inquiry commits one to a Kantian ethics, much less a Kantian metaphysics."
 ". . . I take the is/ought dichotomy to be simply a logical distinction: Is-statements function differently than ought-statements.  Likewise, the distinction between normative ethics and metaethics is a logical one.  They are different types of inquiry that ask different questions.  A normative ethical theory must answer the question: What should I do?  A metaethical theory must answer the question: What is the status of ethics?  Normative ethics offers practical guidance about what constitutes ethical conduct."
"So further, since we are agents, we must decide how to act, and we do this from a first-person perspective.  Since metaethics engages with more general questions about the status and origins of ethics, it is a level of inquiry operating at more of a third-person perspective.  Biological science, also, provides a third-person perspective, thus it can be distinguished from a normative first-person perspective ethics."
 "These seem to me to be minimalist assumptions, not uniquely Kantian assumptions, so I do not think I am characterizing all normative ethics as Kantian ethics.  Kant may observe these distinctions, and attempt to shore them up with an extravagant metaphysics, but a Kantian metaphysics is not required to draw these logical distinctions.  As I have mentioned, all ethical theories have some kind of background metaphysical assumptions . . ., but those assumptions can usually be separated from the specifically ethical components.  I think contemporary Kantian deontologists have done this, for example, and sought only to develop and defend the ethical components of Kantian deontology" (238-39).
Mizzoni recognizes that there are many Darwinian critics of Kantian ethics--such as Edward Wilson, Richard Dawkins, Stephen Jay Gould, Joshua Greene, and Michael Ruse--who say that Kant's categorical imperative does not conform to the world of human experience as studied by biological science.  But Mizzoni denies that this undermines Kantian ethics:  "The fact that a normative ethical principle advises what ought to be done, as opposed to advising to continue what is done in the natural world is not thereby a mark against that normative principle.  Normative principles are meant to do more than simply describe and align with the world as it is" (190).

Gould has defended an ethics of hypothetical imperatives--such as the Golden Rule as a principle based on enlightened self-interest--as being superior to a Kantian ethics of categorical imperatives.  Mizzoni responds: "His point against Kantian deontological ethics is that it doesn't fit with a complex and sloppy world.  Maybe so.  But should it?  Kant's point about ethics being about the realm of freedom is because ethics is meant to free us from the world around us" (187).

"The best case for supporting a Kantian ethic," Mizzoni observes, "is to emphasize it as a normative ethic, not as a description of how ordinary humans make moral judgments" (180).  In a footnote to this sentence, he writes: "There may be some passages in Kant, where, caught up in enthusiasm, he may blur the distinction between offering an account of how humans ordinarily make moral judgments, and how humans should make moral judgments" (192).

Is Kant "caught up in enthusiasm" when he tries to believe that acting according to categorical imperatives--acting by pure reason without any motivation by emotion or desire--is possible?  If ought implies can, then the idea of a categorical ought is indefensible in so far as it is impossible.

If the biological study of human nature shows that acting according to hypothetical imperatives is possible, but acting according to categorical imperatives is not, then hasn't biological science thus denied Kantian ethics? 

Mizzoni briefly recognizes the contrast between hypothetical and categorical imperatives in only two passages (187, 192 n. 4).  And he fails to see that the impossibility of acting according to categorical imperatives means that Kantian ethics is impossible, and therefore that the only possible form of ethics is an ethics of hypothetical imperatives that combine reason and desire.  (I have written about the ethics of hypothetical imperatives in a previous post.)

I can agree that Kant was at least partly right in recognizing the importance of general principles in moral judgment--principles like the Golden Rule.  The Humean and Smithian sentimentalists also recognize this: they have defended a natural morality of informed desire, in that the good is the desirable, and reason judges how best to satisfy the desires in the most harmonious way over a whole life.  What Kant says about the universality of moral reasoning is close to what Smith says about the reasoning of the impartial spectator.

But Kant was mostly wrong in assuming that moral judgment ought to be based on pure reason without any motivation by desire or emotion.  This cannot be correct because it's impossible.

In fact, Mizzoni implicitly concedes this when he speaks about the attempts by Mark Timmons and Michael Slote to save Kantian ethics by "joining a deontological normative ethics with an expressivist metaethic" to create a "sentimentalist deontology" (180-81).  But Mizzoni does not recognize that this saves Kantian ethics by destroying it!

This same problem comes up in Mizzoni's response to my argument about the moral poverty of psychopaths:
"Research done on psychopaths reveals that they have no trouble carrying out abstract reasoning, yet they do show deficits in experiencing moral emotions.  Some have taken this as a refutation of Kantian ethics, since if Kant's theory is correct, then supposedly one need not experience emotions to reach ethical conclusions, but only use one's reason in employing the categorical imperative.  But this argument assumes t hat merely because a person has t he capacity to engage in abstract reasoning, then the person will generate defensible ethical conclusions.  Why should we assume that?  As mentioned above, Kant does recommend that we should strive to be idealized rational agents, but he does not assume that people are ideal rational agents.  Also, are psychopaths familiar with the formal ethical principle that Kant calls the categorical imperative?  And even people who are familiar with the principle can still use the principle poorly, such as the Nazi Adolph Eichmann who famously stated that he was familiar with Kant's principle and used it on a daily basis throughout his life (Arendt 1963)" (180).
Mizzoni misses the point in my argument about how the moral poverty of psychopaths refutes Kant.  If Kant were right in claiming that normative moral judgments must be based on pure reason without emotional motivation, then we would assume not that a psychopath "will generate defensible ethical conclusions,"  but that a psychopath "can generate defensible ethical conclusions."  Unless Mizzoni shows us that it is possible for psychopaths to make defensible moral judgments and act on them, even though psychopaths do not feel moral sentiments, he has not refuted my argument for how the biological study of psychopaths denies Kantian ethics.