The Free Thinker

"What Our Declaration Really Said" (E.J. Dionne)

WASHINGTON -- Our nation confronts a challenge this Fourth of July that we face but rarely: We are at odds over the meaning of our history and why, to quote our Declaration of Independence, "governments are instituted."

Only divisions this deep can explain why we are taking risks with our country's future we're usually wise enough to avoid. Arguments over how much government should tax and spend are the very stuff of democracy's give-and-take. Now, the debate is shadowed by worries that if a willful faction does not get what it wants, it might bring the nation to default.

This is, well, crazy. It makes sense only if politicians believe -- or have convinced themselves -- that they are fighting over matters of principle so profound that any means to defeat their opponents is defensible.

We are closer to that point than we think, and our friends in the tea party have offered a helpful clue by naming their movement in honor of the 1773 revolt against tea taxes on that momentous night in Boston Harbor.

Whether they intend it or not, their name suggests they believe that the current elected government in Washington is as illegitimate as was a distant, unelected monarchy. It implies something fundamentally wrong with taxes themselves or, at the least, that current levels of taxation (the lowest in decades) are dangerously oppressive. And it hints that methods outside the normal political channels are justified in confronting such oppression.

We need to recognize the deep flaws in this vision of our present and our past.

A few points to make here. First, the main problem is not that taxes are too high but that deficits are so high as to be a profound threat to the very legitimacy of the United States government. There is never really all that good a reason why a new generation of Americans should accept the debts incurred by a previous generation, but when the debts aren't too large, the merely utilitarian logic of not defaulting so as to hold down one's costs of borrowing tends to prevail. But with deficits of 10% of GDP or so, we are forfeiting the legitimacy of asking our children to pay for the reckless spending of today's politicians. Such deficits amount to a rampant degradation of our institutions. Second, taxes are far higher than anything the founders imagined. Third, the federal government's powers today extend far beyond anything the founders would have believed they were sanctioning. To that extent the "Constitution in exile" school is right. In deriding the idea that "the current elected government in Washington is as illegitimate as was a distant, unelected monarchy," Dionne elides the distinction between whether the government is legitimate at all and whether there should be any limits on what it can legitimately do, implicitly rejecting the latter with an idea of democratic absolutism, i.e., since the government is elected, it can do whatever it wants. An important question is thus begged.

Natural Law

My book, Principles of a Free Society, was meant to provoke controversies, in the course of which I would hope to win acceptance of a position which the book does not claim to provide a complete defense. In the introduction, I write:

My goal here is to communicate a position, not rigorously to prove it from indubitable foundations. I will have succeeded if readers understand that position, even they are unwilling... to accept it. (p. viii)

Indeed, even the blurbs I got for the book, though very positive, all contain reservations about accepting the argument in toto. Bryan Caplan writes:

Nathan Smith is one of the most creative and thought young social scientists on the market. If he doesn't convince you, he will at least intrigue you.

I glowed with pleasure at that, and am grateful for the praise, but the "if he doesn't convince you" certainly suggests that Caplan himself is not fully convinced by the argument. Similarly, Nick Schulz writes:

You hold in your hands an extraordinary book. In this study of the principles of a free society, Nathan Smith develops a novel and convincing argument in favor of the free and open migration of people. Smith's patriotic case for welcoming those from beyond our borders is smart, powerful and compelling. While there remains room for disagreement, after encountering his arguments you will think with greater wisdom and clarify about matters of enduring significance, especially about the nature of human freedom.

Again, high praise, but a reservation: "while there remains room for disagreement." Finally, Charles Rowley writes:

As Nathanael Smith admits at the outset, this is a dangerous little book, a treatise that, if it were to be published now in any number of countries, might put his liberty, even his life, at risk. It is not a volume for which any autocrat-- or indeed most powerful democratic politicians-- will find a prominent place in their personal libraries. Yet, it is a book that should be read by anyone who loves liberty and desires to think afresh about the meaning and implications of that all-important concept.

The author does not spare our sensibilities in this thought-provoking contribution. I have spent all but 50 years thinking andwriting about liberty and its hazardous relationship with the nation-state. I had become confident that there was little that I did not know about it. Wrong! Smith forced me to think afresh about the concept of national sovereign and about the dishonest role of Thomas Hobbes in setting the stage for its dominance in the post-1648 Treaty of Westphalia world-order. Likewise, he taught me to think anew about the full significance of closed borders for those individuals who find themselves on the wrong side of the barbed wire-- the tired, the poor, the huddled masses, yearning to breathe free. And that is quite something for an Englishman who himself migrated in middle-age from the Old World to the New.

Smith claims that he writes as both a rationalist and a spokesman for tradition. If you think that these two forces are incompatible, read his book and discover that you are incorrect. Much more important than this welding together of pre- and post-Enlightenment thinking, however, is the energizing pulse of morality that flows through the entire book. This is not the work of a skeptic, of someone who is disenchanted with the world in which he resides. This is not some depressing backward glance at Come Nineveh, Come Tyre. Rather it is a vibrant anticipation that looks forward, with the Promise of Joy to a world order not unlike that which graced Western civilization prior to the Great War: an environment of largely peaceful nations and open borders; an environment without passports and border guards; an environment fully understandble to John Locke, but utterly incomprehensible to Thomas Hobbes.

I do not endorse every proposal that Smith incorporates into this book. But where I disagree, I do so more circumspectly now than before I followed his arguments through to their logical conclusion. It is a book written to be read, and to be read profitably, by all individuals of good heart and good cheer.

Once again, a very complimentary comment, but with a reservation-- "I do not endorse every proposal that Smith incorporates into this book..."  If even these quite friendly readers have reservations, I can only expect to encounter much more resistance, disagreement, and disbelief as the book spreads to areas where the climate of opinion is less favorable to the somewhat libertarian cast of mind in the book. However, it is clear from Rowley's comment in particular that I succeeded in my stated goal of communicating a position. By contrast, MS's remark in the last comment thread was disappointing because it suggested that I had not succeeded:

Nathan, you already know that I don't agree with your ideas about community and its requirements, but I also can't accept the natural rights premises on which you build your whole argument. Since you have to accept the beginning premises to accept the rest, you lose me right at the start.

There are a number of reasons why this is an inadequate response to the book. First, it's an overstatement to say that the whole argument is built on natural rights premises. I do assert and emphasize them, but I make other kinds of arguments too. Second, since I argue and lay the foundations for natural rights at least to some extent, it's not quite fair to act as if I just treat it as an indubitable premise. I would hope an interlocutor would feel the need to argue why my case for natural rights doesn't work. Third, since I make the case for the free society mainly on natural rights grounds, I was hoping that readers would see that if they want to reject my argument, but nonetheless to believe in a free society, they must provide some alternative account of what a free society is and why it is right. Perhaps some will realize they are unable to do so, and decide to accept my argument after all. It was partly in this way that I have come to accept natural rights in the past three or four years, Alasdair MacIntyre's After Virtue had, for a while, made me disbelieve in them.

MS's next response, however, was much more satisfactory: she directed me to "Nonsense and Natural law," by Steven D. Smith. (It took me a while to find it, and I don't think there's an ungated copy anywhere; I eventually got access to it at HeinOnline.) It was a delight to read Smith's clear and intelligently-written and often funny article, in which I quickly recognized an early version of the lines of thinking that eventually became Law's Quandary, another book to which I am much indebted. "Nonsense and Natural Law" is arguing against Roger Pilon of the Cato Institute, a former colleague of mine. However, it quickly became clear that my account of natural rights is not vulnerable to Smith's argument. Here is how Professor Smith's article begins:

We cannot make sense of the Constitution, or of the ways in which we talk about the Constitution, unless we understand the Constitution from within a natural law-natural rights framework. That is the critical part of Roger Pilon's argument, and although the argument raises complex questions I want for now to accept it. But I also want to suggest that this claim points to a dilemma that lies at the heart of the subject of this conference. The first prong of the dilemma is that, as Dr. Pilon has argued, we cannot make sense of a good deal of constitutional discourse outside of a natural law-natural rights framework. The second prong of the dilemma is that we cannot talk sensibly about the Constitution from within a natural law-natural rights framework; that is because this sort of framework gains its sense  from a worldview that is no longer permitted us. The unhappy conclusion, it seems, is that we cannot talk sensibly about the Constitution.

The concession that "we cannot make sense of... constitutional discourse outside of a natural law-natural rights framework" is very useful for me, in that (a) it makes the alternatives to my own emphasis on natural rights unappealing, (b) it concedes that I am in good company, namely that of the founders of the American polity-- and I think, but Smith can correct me if I am wrong, also that of the 17th-century Whigs who founded the constitution of modern liberal Britain and shaped the emergence of the Anglo-American common law.

But what does Smith mean by "we cannot talk sensibly... from within a natural law... framework?"  The italics on we are extremely important here.  Smith argues that one talks nonsense if the words one uses presuppose concepts in which one does not believe.  He then shows that Thomas Jefferson and others of his time believed in a "Great Chain of Being" philosophy according to which Providence made the world and everything in it has purpose and meaning that emanate from Providence, and that it was in this context that their ideas of natural rights made sense. Then Smith argues:

The preceding discussion has suggested that for the Jeffersonians, natural rights were closely connected with a Creator who conferred such rights on human beings. But were these theistic trappings actually necessary to Jeffersonian rights discourse? Perhaps the same basic ideas and the same basic discourse could flourish as well or even better if the providential wrappings were discarded.

The question is urgent because, to the Jeffersonian, the providence-centered worldview is no longer authoritative in legal and academic contexts; appeals to God or to the providential design are not admissible. James Boyd White has observed: "[There is a] peculiar division between academic and religious thought in our culture. In the academic world we tend to speak as though all participants in our conversations were purely rational actors engaged in rational debate; perhaps some people out there in the world are sufficiently benighted that they turn to religious beliefs or other superstitions, but that is not true of us or, if it is true, we hide it, and it ought not be true of them. Ours is a secular academy and, we think, a secular state."

Hence, if rights discourse makes sense only within the providence centered worldview, then it would follow that if we continue to engage in this discourse we are talking nonsense-at least, relative to us.

But this argument does not apply to me.  I do not accept the obligation of thinking about law in purely secular terms.  I accept a providence-centered worldview, and (I think) some version of the Great Chain of Being philosophy, though I would try to avoid being as naive in applying as Smith shows Jefferson sometimes to have been.  And I would have thought that MS would also accept a Providence-centered worldview, no?  So I don't see how she is in a position to appeal to Professor Smith's argument.

To this I would add two things.  First, it seems important to reject, or at least to qualify, Smith's notion of law as originating in the commands of a sovereign.

Probably the most familiar and understandable account of "law" views law as a set of commands or rules or directives issued by an authoritative sovereign or lawgiver. This conception is conspicuous in our images of law, modern and ancient: We imagine Congress passing laws for the citizens of this country, Solon giving laws to the Athenians, God giving the law to Moses and Moses in turn giving it to the people of Israel. Conversely, when we try to imagine "law" without reference to any lawgiver or legislator, the notion becomes hazy or mystical-Holmes' "brooding omnipresence in the sky."

Not surprisingly, therefore, most theories of law include a legislator as an essential element. This element is perhaps most central in a positivist theory such as John Austin's: Law consists of the general commands of the sovereign.' But even in theories different than or critical of Austin's, the lawgiver typically plays a necessary role. Thus, Thomas Aquinas defined law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated." The legislator is only one element in this definition, but he is nonetheless an essential one.

Smith thinks law must necessarily originate in sovereignty; I would say that sovereignty must necessarily originate in law. Barack Obama can order US troops into Afghanistan. I can order them to leave. But Obama's command has the force of law and mine does not. Why? To say Obama is in a position of sovereign authority begs the question. What does that mean and how did that situation occur? At the risk of sounding flippant, let me suggest that the only answers to that question will involve some kind of "brooding omnipresence in the sky."

Second, I would suggest that the ontological skepticism which Smith provisionally accepts as a condition for participation in the secular academy is not just a threat to law, but to any kind of ethics or morality. I do not see how it is any easier to give a secular account of ethics than it is to give a secular account of natural law. Indeed, I am not sure that there is any difference between the two projects. And if it's clear that we can't without ethics, why should we try to do without natural law?