I planned on writing a whole response to my emailer’s letter, but I have gotten hung up answering her first paragraph. The rest will have to come later:
Regarding her assertion that the implication of an Enlightenment founding “is that the Founders put something over on ‘the people’”—I don’t endorse this notion and I hope to clarify my position on this in this post. But some conservative thinkers whom I read and respect do think exactly this. It is no secret that I have learned a great deal about political philosophy from the followers of Leo Strauss: Allan Bloom, Harvey Mansfield, Walter Berns, Thomas Pangle, and others (I’d even put Robert Bork in this category). And these men, who are by in large social conservatives with an intellectual axe to grind in favor of religious conservatism, believe exactly this.
Thomas West, in a paper he presented to the Family Research Council, entitled "Vindicating John Locke: How A Seventeenth-Century 'Liberal' Was Really A Social Conservative," explains this contention (which, as I will later note, he does not share):
It is easy enough to quote founding-era documents to bring out the consistent concern of that generation for the moral conditions of freedom. But the objection can be made, and often is made, that this only shows that the Founders did not really understand the radical implications of their own Enlightenment principles. In this view, the Founders were, in Michael Zuckert's words, "victims of bait-and-switch marketing." Zuckert means that the Founders were dupes of a radically modern project in which Locke, along with Machiavelli, Bacon, Hobbes, and others, succeeded in overthrowing the classical understanding of man as a being whose perfection and happiness can only be found in moral and intellectual virtue.
Thomas West is also a follower of Strauss’s, but of Harry Jaffa’s “interpretation” of Strauss’s teaching (known as Western Straussianism—not named after “Thomas West” by the way, but after the fact that these thinkers, after Jaffa, reside on the West Coast), which differs from all of Strauss’s other student’s teachings (Bloom, et al.—known as the Eastern Straussians). West is apart of Jaffa’s Claremont Institute, which claims to operate in the tradition of Enlightenment liberalism—but they are also social conservatives and argue that social conservatives, not libertarians and leftists, are the true heirs to Enlightenment liberalism (and they, to their credit, have a follower in none other than Clarence Thomas). Claremont argues that Enlightenment’s notion of Man’s Reason largely agrees with Biblical Revelation on all of those controversial social issues (as the Church Lady would say, “How convenient!”), that they in fact compliment one another.
According to these thinkers, Reason & Revelation might disagree on some of the larger issues, such as what we can know about God. But Claremont, operating in the tradition of Locke, duly notes that the United States was founded on Reason, and when it comes to what we base our public policy on, if there is a dispute between Reason & Revelation, Reason trumps (and as professed Lockeans, they must hold this way, because this is, after all, clearly what Locke taught).
For instance, here is West, from the same article, on the identity of the “God” in the Declaration of Independence: “The law of nature is also the law of ‘nature's God’ (meaning God insofar as we can discern his existence through our reason unassisted by faith).” In other words, nature’s God is God as he is ascertainable by Man’s Reason unaided by Biblical Revelation. Somehow I don’t think that the fundamentalists at the Family Research Council liked hearing that.
The notion of Reason, or “natural law” coming to the same conclusions as orthodox Christianity is not new. In fact, this is what Thomas Aquinas taught. And as such the Claremont Institute has built up a strong following among devout Catholics, with their natural law traditions. However, Protestant fundamentalists (like my reader), who never had much use for “Man’s Reason unaided by Biblical Revelation,” haven’t shown much interest in Claremont (understandably).
So Claremont turns Locke into a social conservative by positing the notion of a Thomist—Locke, making Locke’s teachings just a new version of the “Christian natural law,” after Aquinas. The Eastern Straussians don’t buy it and neither do I. These thinkers, after Strauss himself, write that Locke’s aims were clearly to break with the traditional Christian understanding of nature, ala Aquinas. Strauss posited the notion of a Hobbsean—Locke. Both Thomas West and the Eastern Straussians freely admit that it’s hard to ascertain exactly what Locke meant by plucking his quotes out of context. Locke could not write what he meant in a straightforward way because heresy (like denying the Trinity, which Locke, after his friend Isaac Newton, did in secret) could get you killed. Instead Locke would give his ideas and all along claim that they were compatible with orthodox Christianity. Then orthodox Christians would accuse Locke of heresy, and Locke would defend himself, claiming not to be a heretic.
But one thing is clear: Locke taught that Man’s Reason trumps. And that Biblical teachings were true only insofar as they were compatible with Man’s Reason. Locke’s The Reasonableness of Christianity was Locke reinterpreting Christianity through the lense of Man’s Reason (in which, Thomas Pangle argues that Locke “smashes” traditional Christianity), and along the way Locke manages to posit a “state of nature teaching” which is, in the words of Walter Berns, “wholly alien to the Bible.”
My reader has argued elsewhere that because Locke came from a “Christian environment” it was the Christianity that surrounded him that was responsible for his ideas, his formulation of “rights,” of liberty of conscience:
Locke was raised in a Puritan home, he was schooled under Puritan teachers. Empiricism which attracted Locke was proposed by the devoted Christian, Bacon. Where the Enlightenment became not only divorced from its Christian roots but antagonistic to them I'm not sure, but it wasn't with Locke, and in any case none of its best ideas could have occurred at all without the Christian culture they grew out of.
But this is not right. What distinguished Locke’s teachings were how they broke with traditional Christian dogma and practice. Yes, Locke grew out of a Christian culture, but so too did Protestantism grow out of Catholicism. Giving “Christianity” credit for Locke’s ideas is like giving Catholicism credit for Protestantism (which is precisely what some Catholics argue). I think mine is a good workable analogy: What distinguishes Protestantism is how it broke with Catholicism; ditto with Locke and orthodox Christianity.
For instance, Locke posited the notion of “self-ownership.” If ever there were an anti-Christian (that is, the traditional orthodox understanding) doctrine, it is that. Here is Robert Bork on the principle of “self-ownership”: “There are ‘moral facts,’ but that is certainly not one of them. It would mean that no one has any obligations as a family member or as a citizen, no obligations to anyone or anything outside his own skin….” Slouching Towards Gomorrah, p. 104.
Bork wasn’t specifically referring to Locke, but the dissent in Bowers v. Hardwick, the case recently overturned by Lawrence, which holds: “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not others nor to society as a whole.’” But Locke could have written exactly this. In fact, he did write something almost identical: “Every man has a property in his own person; nobody has any right but to himself….” Two Treatises on Government, edited by Peter Laslett, Cambridge University Press, London, 1988, pp. 284, 287-88.
Now, of course, I anticipate the social conservative response: Locke absolutely did not personally believe that “self-ownership” meant the “right” for same-sex couples to practice their relations in private. Just look at Thomas West’s quotes on Locke and sodomy. Let’s hold that thought for a second….
Locke’s principle of self-ownership was absolutely antithetical to slavery. It was perhaps the strongest anti-slavery principle ever posited. And this theory did in fact put the final nail in the coffin of that institution. But wait…Locke himself was not personally against slavery; in fact he constructed a “natural rights” defense of the institution (albeit a very weak one; he described slavery as “nothing else but the state of war continued between a lawful conqueror and a captive”). We see Locke positing a principle that he himself didn’t seem to logically apply. We’ve also seen how Lockean principles were used to justify the dissent in Bowers, which lead to the majority in Lawrence.
The right to be free from both slavery and anti-sodomy laws are wholly consistent applications of Locke’s own theory, even if Locke himself, subjectively didn’t understand what the logical outcomes of his theories ought to be in these circumstances. That is, the originators of certain ideals sometimes did not logically or consistently apply their own principles—perhaps because of “prejudices” of that particular time and place, or perhaps because it just wasn’t convenient or feasible to do so. But it’s not our role as “originalists” to get into the framers subjective mindset, and try to anticipate how they subjectively intended those principles to apply, or to otherwise look for inconsistencies between the broadly enunciated ideals and actual historical practice and then claim that those inconsistencies must be incorporated in order to limit the ideal. Rather we must pay homage to those timeless principles and realize that we can and must apply them in a more logical & consistent way than the framers, because we don’t live in the 18th Century and ought not be held captive to the “prejudices” of 18th Century sociology. “All men are created equal” clearly conflicts with slavery. Yet, when the Declaration was written, many founders, most notably the document’s author, held slaves. The proper way to understand the Declaration is not by subjectively asking whether the framers “really meant it for blacks,” but to ask whether a plain meaning of “all men are created equal,” logically applies to “all men,” blacks included.
Let me close by making an analogy to contract law. Because after all, what is our system of government but one big contract (or compact) between the government and the people? It is settled contract law that, when ascertaining how a contract should be interpreted, courts don’t inquire as to how each individual party “subjectively felt” the language should apply or be interpreted, rather, courts ask how an objective person, reading the plain language of the text, would think the words would apply. Therefore, individuals can’t agree to a contract with a particular set of words, but later back out saying, “I really didn’t mean it as applied to this particular circumstance” (not anticipated in the text of the contract). Individuals agree to contracts all the time where they understand what the general terms are, but they nonetheless do not appreciate all of the implications, or “what they were getting themselves into.” Sometimes people break their contracts and go into court arguing exactly that: “I know that’s what the contract says, but I never anticipated it applying this way.” And those parties generally lose those arguments, and always have. If the folks in the 18th Century didn’t know “what they were getting themselves into,” that they were agreeing to a Constitution guaranteeing individual rights that might one day lead to a “right” for consenting individuals to have sex within the privacy of their own home, then so be it. It’s not a valid excuse in contract law. And this is not a viable theory of Constitutional originalism.
If an individual “owns” himself and has the right to pursue happiness, then, in determining how these timeless principles apply in specific circumstances, we must ask how they should logically work themselves out in the present day—not by channeling 18th Century sociology, with all of its prejudices, asking whether “the people” would subjectively anticipate this outcome. And if we come to two different outcomes, then we choose the former.