Motus Mentis

Two posts ago we read Michael Anton’s emailed reply to a collection of questions I’d posted in Part 1 of this series.

I mailed back a response, and received another reply in return. (There the correspondence stands, for the moment, as I’ve been traveling and working the past couple of days. I’d also like to re-read Mr. Anton’s original review of the Thomas West book before continuing.

Below are some excerpts of my reply, and then of Mr. Anton’s response to it.

Over the past several years I’ve taken a deepening interest in the Founding, the men involved, and the history of the different cultures settled in America in the centuries leading up to the Civil War; my interest at first has been to trace the origins of 21st-century-style “liberalism” from early Massachusetts, though the expansion across the Upper Midwest, the Great Awakenings, and a gradual evolution though various moral missions of different eras into what I now regard as a national, secular cryptoreligion. Of late, though, I am more and more interested in the Founding itself; I’ve just finished reading the complete Adams-Jefferson correspondence, and am looking forward to reading Professor West’s book…

I have also taken an interest in the history of slavery, and in the interest of a breadth of perspectives, recently read Robert Dabney’s Defense of Virginia, and am halfway through Ulrich Bonnell Phillips’s American Negro Slavery, written in 1913. Both of these raise questions about equality and justice that I am sure Jefferson et al. grappled with.

Another book that has been influential for me is Henry Sumner Maine’s Popular Government, which (as quoted here) argues that a relentless expansion of suffrage is an ineliminable consequence of the dynamics of power in democratic systems — and so:

“…the signs of our times are not at all of favourable augury for the future direction of great multitudes by statesmen wiser than themselves. ”¦ The leaders may be as able and eloquent as ever, and some of them certainly seem to have an unprecedentedly ‘good hold upon commonplaces, and a facility in applying them’; but they are manifestly listening nervously at one end of a speaking-tube which receives at its other end the suggestions of a lower intelligence.”

I think there is good reason to imagine that the near-total transformation of what the Founders created into something that would be utterly unrecognizable to them may have been all along an inherent and unavoidable liability; this question is why I am so interested to read Professor West’s book.

Regarding 1), then: how is the idea of equality of rights commensurable with involuntary slavery, unless the natural inequality of the African in the civilized West — and nobody of the era would have imagined that such inequality of capacity and dispositions was not glaringly obvious — meant that such rights simply entitled a person to live in such station, or under such subordination, as Nature had fitted him for?

As for 2), I have been influenced here by Erik von Kuehnelt-Leddihn’s Liberty or Equality, in which he wrote that:

“Nature’ (i.e., the absence of human intervention) is anything but egalitarian; if we want to establish a complete plain we have to blast the mountains away and fill the valleys; equality thus presupposes the continuous intervention of force which, as a principle, is opposed to freedom. Liberty and equality are in essence contradictory.”

Likewise, Will Durant:

“Nature smiles at the union of freedom and equality in our utopias. For freedom and equality are sworn and everlasting enemies, and when one prevails the other dies. Leave men free, and their natural inequalities will multiply almost geometrically, as in England and America in the nineteenth century under laissez-faire. To check the growth of inequality, liberty must be sacrificed, as in Russia after 1917. Even when repressed, inequality grows; only the man who is below the average in economic ability desires equality; those who are conscious of superior ability desire freedom; and in the end superior ability has its way. Utopias of equality are biologically doomed, and the best that the amiable philosopher can hope for is an approximate equality of legal justice and educational opportunity.”

So – equality under the law, then. But is the man of intelligence and foresight, who grasps the law in its subtlety, and knows how to thrive and prosper in it, not naturally more free than the one who, in ignorance and impulsive unwisdom, collides with it at every turn? Does not the mere fact of his perspicacity give him more “degrees of freedom”? I think this is what Jacques was getting at. You make a distinction between caring for the incapable and ruling them; but might it not be that what is most just for the less capable is to buffer their freedom against hazards that they do not even see, and could not avoid if they did? Do we know that this is not how men like Jefferson and Washington squared their ownership of the labor of other men with their sense of rights and justice? That is what complicates 3) for me.

Regarding 4), we can see all around us that the idea of general “consent”, or the Rousseauian notion of a “general will”, is falling to pieces. I live in the “belly of the beast”: Brooklyn, New York, and Wellfleet, MA, and most of the people I know around here would say that they did not “consent” to being ruled by Donald Trump, despite his being elected according to the usual Constitutional process. Indeed, nobody raised in the United States ever gave their consent to any of it; it was just handed to them, willy-nilly.

It seems to me that sovereignty implies power, in particular the capacity to originate and compel policy, laws, and dynamic action. The masses in a democracy have none of that; at best they can choose among a handful of pretenders. Hillary Clinton vs. Donald Trump??? That shabby choice is, as of 2106, the means by which “the people” are sovereign? Meanwhile, the unelected managerial Leviathan rumbles on, accountable to nobody. Where’s my consent there?

The question, again, is: might all this, under the extraordinary system given us by the genius of the Founders, been avoided? I am not sure that it might have been. That is not to say that the Founders could have done any better; I agree with you that the Founding was perhaps the greatest act of political genius in human history, and I cannot offer any constructive criticism. They attempted an act of creation wholly unexampled in all of history, and what they created was an incandescent success. For a time.

Regarding natural rights: how can rights “come from nature”? How does indifferent Nature, which simply is, give us any such “oughts”, other than by mere intuition?

As for inalienability, I understand it in the Stoic’s narrow and practical sense that there simply is no way for anyone to seize control of my inner state; it is simply unreachable by any external power, if I will it so. I realize also that if I am murdered, one can say that my right to life has not been alienated, but violated. But I am equally dead in either case, and this tempts me to agree with Bentham that the idea of natural, inalienable rights is “nonsense upon stilts”. I would like it to be otherwise — very much so — but it is hard for me to see, in the absence of something transcending mere Nature to hang them on, how rights are anything but conventions.

Michael Anton replied:

Equality of rights is not compatible with slavery. There is a flat contradiction there, which the founders recognized. Slavery was for them simply a fact, a given that they had to deal with. It predated the Revolution by 150 years. No one was thinking about equality or liberty or separation from Britain when they starting bringing slaves in the 1610s. When the founders sought a true basis for justice and legitimacy and concluded that equality was it, they knew it contradicted slavery. But they didn’t have the political power to abolish slavery at that moment. So they faced a dilemma from which there was no easy exit. Had they insisted on immediate abolition then (a) they would have killed the Revolution by disuniting the country and (b) would not have achieved abolition anyway because they lacked the power. The most likely outcome would have been a separation into northern and southern blocks, with the southern block uniting with Canada (or what is now Canada) and Britain to re-subdue the North. In other words, a Civil War, but earlier, and won by the slave power.

Regarding the evident inequality of capacity at that time, many Founders discussed it. None thought that it meant blacks lacked equal natural rights. Here is a classic statement on that theme:

Be assured that no person living wishes more sincerely than I do, to see a complete refutation of the doubts I have myself entertained and expressed on the grade of understanding allotted to [black slaves] by nature, and to find that in this respect they are on a par with ourselves. My doubts were the result of personal observation on the limited sphere of my own State, where the opportunities for the development of their genius were not favorable, and those of exercising it still less so. I expressed them therefore with great hesitation; but whatever be their degree of talent it is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others.

The founders knew slavery was wrong. But (a) they had no power to get rid of it quickly and (b) they feared that if they did, they would be subject to retribution. West makes this point. There is a natural right for the slave to be free, but also a natural right to life for all person. If a likely outcome of manumission is violence, then two natural rights conflict. It’s not always easy to know what the right thing to do is in such situations. The modern liberal would dismiss this concern out of hand but the founders did not.

The founders did everything they could to restrict slavery in the hope and expectation that it would go away within a few decades. Most northern states abolished it (it was legal in all 13 in 1776). They severely limited the slave trade and gave Congress the power to abolish it after 20 years, which Congress did immediately.

Re: (2), the founders’ conception of nature does not require any kind of levelling. There is no contradiction, unless one assumes or insists that “equality’ means equal outcomes, which it manifestly did not for the founders. And should not for us today.

Yes, inequalities will result. What’s the alternative? Neither Durant nor von Kuehnelt-Leddihn suggest a way to create a state based on inequality that will be (a) in accord with nature and (b) accepted by its members. Durant hints that the meaner sorts will always desire equality. That’s part of my point. No man CONSENTS to, or welcomes, a state-sanctioned inferiority. It must be imposed. Decades of oppression may lead to a kind of resignation, as in the lower orders of Old Europe. But we also saw that it’s impossible to keep the lid on forever. If it were “natural’ in the sense that these two appear to mean (“the absence of human intervention’), then an unequal natural order would just sprout from the land organically and be accepted by all, or at least by most, whereas manifestly it does not.

Whenever I hear someone (and one does hear it more and more from the “dissident right’) insist that there is a natural order of rank among men, I have the same reaction that Plato and Aristotle recommended regarding the man who claims to be wise so that he can rule: fraud! None of those making the assertion can ever point out how we can easily recognize our supposed superiors. They can give examples of people we can agree were superior in talent, but even that is problematic since often those talents go unrecognized or denied during that person’s lifetime, and when those talents are needed most. If this alleged “natural order of rank’ is to be our guide for a new politics, we have a serious problem, because no one can beyond those making the assertion have the ability to tell natural rulers from naturally ruled and the latter are going to resist being ruled. That’s part of their nature. Which calls into question the alleged “naturalness’ of the whole idea.

As for class conflict, isn’t the founders’ solution the best that can be done? What breeds lower class resentment is the sense of a rigged system. In old Europe, the most talented among the lower orders were stuck there and losers in the upper retained wealth and privilege. The latter is less a problem than the former. The founders’ system addressed the former problem quite effectively, which is why we had so little class conflict here as opposed to Europe. Now we again have a rigged game but it is owing to departure from the founding principles.

Durant’s quote, for all its breathless overstatement, ends in the same place as the founders.

Washington and Jefferson did not rationalize their ownership of slaves. Keep in mind first that both inherited their slaves, they didn’t seek them. Washington, the more prudent man, prepared throughout his life to free his slaves at great expense to himself, which he did. Jefferson, a self-indulgent spendthrift, died in debt and so could not do that. But he knew that slavery was wrong.

The founders’ consent is totally different from the General Will but that’s for another day. Suffice it to say for now that we all consent by remaining a part of the social compact. The old saw “If X wins, I’m moving to Canada’ is actually a statement of the founders’ idea of consent. If your government becomes intolerable to you, you can withdraw your consent by emigrating, which you have a natural right to do. Not that you have a natural right to go anywhere. The country you want to go to must accept you into their compact, which they are under no obligation to do. But you have a natural right to leave. The people who say they didn’t consent to Trump are wrong. They consent by staying.

I agree with you that the people did not consent to the administrative state, which is a very large problem. Trump’s election is in part a reaction to that. It maybe that the administrative state is by this point too powerful to tame. But we ought to at least try. The alternatives are all bad.

As for how rights come from nature, that’s explained in depth by West and in my review. I don’t really have anything to add.

There is much to delve into here: the notion of “exit” as an alternative to consent (which, for people living ordinary lives under political systems, is often the only way one can make “consent” seem to be any sort of actual choice, but is for most people not really an option); how it can be possible that brute nature is the sort of thing that can create and bestow something as abstract as rights (note that Jefferson explicitly declared those rights to be endowed not by Nature, but by the Creator); the existence of natural hierarchies and classes; how to parse the distinction between the establishment of Jefferson’s “natural aristoi” as rulers and the idea of there being those who are, by nature, “booted and spurred” to rule; how a slave-owner legitimately claims the authority to arbitrate for another person the “collision between two natural rights”, and so on. I will take these up in later posts.

My last two posts (here and here) were in response to an extensive review, by Michael Anton, of Thomas West’s new book on the American Founding, and to a comment by our reader Jacques.

In Saturday’s post I laid out some questions that I thought the review, and Jacques’ comment, had raised. I did not answer any of them, although of course I have thought about them for quite a while now, and am settled in varying degrees about what the answers to them ought to be. That post was intended as a preamble to a closer look at each of them in days and weeks ahead.

I was very pleasantly surprised on Sunday evening to find a substantial email from Michael Anton, responding to Saturday’s post. Having obtained Mr. Anton’s permission to publish it here, I will do so below.

Since receiving this I have replied to Mr. Anton’s email in some detail, and have received another reply in turn. I have, however, been traveling all day today, and will need more time to organize it all, to post excerpts from my reply and his, and to explore some particularly difficult questions more deeply. I am grateful to Mr. Anton for taking the time to open the conversation.

Here is his initial note to me. I present it, for now, without any comments of my own.

I think your questions are mostly answered in West’s book, in my review, and in my follow-up responding to a reader question. But since — as I also said — important points require frequent restatement, I shall try again.

West surely covers (1) exhaustively, as — I thought — did I. So I am not going to go on at great length here. Equality to the founders meant equality of rights. All men are born with equal natural rights, which include but are not limited to the rights specified in the Declaration. Men are manifestly not equal in talent, wisdom, virtue, strength, or a host of other traits. A regime that secures equal natural rights will allow these naturally unequal traits to flourish in ways that lead to inequality of outcomes. Equality fundamentally means that there are no natural rulers and no natural slaves, or natural “ruled.’ All actual aristocracies are inherently conventional, not natural.

The key here is to establish a just basis for government, a true claim to legitimacy. At the peaks, political theory posits only two such claims. For the ancients, the only just claim to rule is wisdom and virtue (and in the final analysis, according to the classics, wisdom is virtue, and vice versa). For the moderns, or at least for the moderns before they go completely off the rails, the only just claim is consent.

These two ideas sound contradictory but are actually closer to one another than they first appear. The initial reaction of the ancients to the modern claim would be to object that non-wisdom cannot give meaningful consent to wisdom. Wisdom knows what is best while non-wisdom does not. Therefore non-wisdom must submit to wisdom. But the ancients also know that this is not easy to accomplish. Non-wisdom does not readily submit to wisdom, and wisdom does not want to rule. Wisdom (the philosopher) prefers to philosophizing to ruling and so must be forced to rule by non-wisdom, which has no interest in forcing wisdom to rule because it does not want to be ruled. To further complicate things, only the wise truly know what wisdom is and who is wise. But the wise lack the power to make this widely known. The unwise cannot recognize wisdom and cannot be made to see when, where and in whom wisdom is genuine. So we have the paradox of two mutually incompatible, even antagonistic, camps mutually forcing the other to do something neither side wants done.

Another — perhaps the most important — problem with wisdom as a claim to rule is that many who are not wise but who want to rule will claim to be wise in order to rule. In fact, the classics all but assert that anyone who claims to be wise in order to rule is ipso facto not wise. The claim itself is proof of non-wisdom, and of fraud.

As a practical matter, then, the ancients know that wisdom’s title to rule — which is theoretically the soundest and most just claim — is all but impossible to implement. The classical “best regime” that is meant to be practicable is an attempt to steer as much wisdom as possible into government in the absence of direct rule of the wise. It does so through a variety of means which Aristotle explains in the Politics, for instance. Above all, through equality before the law.

The failure of wisdom as a title to rule in any practical way points to the necessity of consent, which the ancients do not make explicit but the moderns do. There are many reasons for this explicit change, and I am not sure I understand them all, but the most important is the complete change in the Western world wrought by the Roman conquest of the ancient world and the advent of Christianity.

The American founders use language very similar to the classical argument for wisdom’s title to rule when they say that a perfect being — God or an angel — could rule men without consent but no actual man is a perfect being (even the best men are a mixture of reason and passion), and so consent is always required.

Your commenter Jacques objects to this, saying that “the highly intelligent, for example, are naturally more free and independent in many key respects than people who are borderline retarded.’ That’s just an assertion, he doesn’t say why, how, or in what way. In any case, for the founders “equally free and independent” is a claim to moral status, to justice. The highly intelligent does not have a natural right to rule the borderline retarded. If Jacques thinks that is wrong, and there is such a natural right, he should explain how and from what it is derived, just the founders explain where they think the natural rights they cite come from.

The “borderline retarded” person he invokes sounds something like Aristotle’s “natural slave” (a person who cannot take care of himself) but for Aristotle there is less a natural right to rule such a person than a moral obligation to care for that person. Even Nietzsche, arguably the greatest philosopher of inequality, does not ground his argument in favor of inequality in any natural right. He admits frankly that it must be willed because there is no natural right.

I also find this to be completely unpersuasive in rebutting the founders’ argument: “Trump or Hitler or Napoleon seem far more naturally suited to ruling and leading than some other people I’ve met.” This is meant to refute the claim that nature does not delineate the natural rulers and the natural ruled. One can raise all sorts of objections to this. For instance, if Trump is such a natural ruler, why did he lose the popular vote by three million votes? That’s not a criticism of Trump but an acknowledgement that lots of people did not recognize his superiority and did not want to submit to his rule. This is a problem that all leaders face. Tyrants, such as Hitler and Napoleon, address it with oppression and suppression. Which they may be very good at, I acknowledge. Is Jacques saying that a talent for tyranny is a title to rule?

Certainly it is true that some are more talented at ruling than others. But this does not give them a right to rule without others’ consent. It does mean that those societies tend to be the most successful that steer the wise and virtuous into government. As Jefferson put it, “May we not even say that that form of government is the best which provides the most effectually for a pure selection of these natural aristoi into the offices of government?” (Read that whole letter. He is very clear that what passes for aristocracy in Europe is anything but. This is a problem with making virtue the title to rule without consent. The non-virtuous will abuse the claim for their own ends.)

Jacques waves aside the argument that there are no natural slaves but does not provide any counter argument or evidence. If they exist, who are they? How does nature delineate them? Why is that this delineation seems to be hidden from the great mass of mankind, including the alleged slaves themselves? He says that people often consent to slavery. Really? Who? When? Where? Then he compares slavery to being ruled. That is just silly. We are all ruled, especially in a rights-based republic. Even presidents leave office and become private citizens again. We consent to rule in order to accomplish things together as political community that we could not do, or not do well, by ourselves. Accepting and obeying the law or following a leader is not slavery.

That is what the founders meant by equality. In the narrower sense they meant: they are no natural kings or rulers. All men are equally free from the just rule of others without their consent. Of course the founders knew that men are ruled without their consent all the time. That is, they argued, the predominant situation of mankind most of the time. But it is not just. They were founding a new government which they intended to rest on just principles. That’s the broader sense for what equality meant for them. Not just “we’re not going to do things the way Europe did them.’ It also means, “the foundations of our political order will be rested on a true understanding of nature.’

As for (2), this is also covered in the book and in my review. No, they are not antagonistic. Equality demands liberty, both in the individual sense and in the national sense. Our equal natural rights limit this just powers of government. Government exists to secure rights. It should be limited to doing that and that alone. Of course we’re way beyond that now, but that was the founders’ view. Government secures our rights so that we may utilize our natural liberty as we see fit, consistent with the moral law. Jefferson again: “in the state of nature, men are inherently independent of all but the moral law.” Which is to say, freedom is unlimited. Men are free to live as they choose but always bound by morality, which is natural. This is an idea fully consistent with classical thought.

At the societal level the people form a social compact, then a government, to secure their own rights but not those of any other people. That people, once established, is a free nation independent of any other. It may not be justly ruled by other nations nor may it justly rule other nations (except perhaps in some kind of national emergency).

As for (3), I am not sure what you are asking, but my quick answer is no. Why would it? Do you mean that those of lesser ability within the same society ought to have less liberty than those with greater? According to the founders, no. We are all equal before the positive law and subject to the same moral law. Keep in mind though that the founders did not have the same broad conception of modern liberty as do today’s liberals. So for instance the last two of FDR’s “four freedoms” they would not have recognized as freedoms or rights at all. So it’s possible that what you’re getting add would be consistent with the founders’ views. A lot of the stuff that we today insist is essential to liberty, they would have denied has anything to do with liberty.

(4) Why isn’t it? We all consent as members of the social compact. We consent with one another, not with any outside power. The act of forming the social compact through consent it what establishes sovereignty. The compact forms us as a people, distinct from other peoples. As the Declaration say, we stand in relation to other nations in a “separate and equal station.” They don’t rule us and we don’t rule them. The founders would have found absurd the notion of transnational bodies such as the EU or UN eroding sovereignty. When we need to make international commitments in the national interest, we do so by treaty. Period.

(5) Also covered at length by West and me. He and I both say yes, as do the founders. If you change the terminology from “natural rights” plural (which the ancients would not have recognized) to “natural right” singular (which they surely did), then pretty much all political philosophers until late modernity did as well. Some were atheists. Some were deists. Some were believers. They all made the case for rationally knowable principles of justice which do not require, but are consistent with, recourse to God.

(6) It means that those rights come from nature and are not the grant of government. We establish government to secure natural rights which belong to us by nature. Government cannot justly take them away. We have to surrender a portion of our rights for government to work but that surrender is conditional. If government fails or becomes oppressive, we can remove from government the power to curtail our natural rights. The right of revolution is inherent. It is always available as a recourse against tyranny.

(7) I tried to give some reasons here.

(8) I think what the [founders] accomplished was one of, if not the, greatest achievements in political history. I don’t know how they could have done better. The headwinds that we are facing are pummeling the entire West. Even of the founders had established an entirely different regime, I think we would still be facing those headwinds.

(9) I ask myself — and others — that every day!