Sunday, May 08, 2005

The "real" one? Or the "other"?

In criticizing John Stuart Mill's classic "On Liberty," where Mill advocated the "harm" principle (government may only prescribe behaviors which directly harm non-consenting parties), Robert Bork in Slouching Towards Gomorrah notes that "Gertrude Himmelfarb points out that Mill contradicted his own principle in other, far less libertarian writings both before and after On Liberty, though he did so without mentioning the contradictions." Ms. Himmelfarb refers to the more socially conservative Mill as "the other Mill," the one who, according to Bork, is "far less often read or cited" than "the Mill of On Liberty who is widely known and admired."

So who is the "real Mill" and who is "the other?" It seems to me that this question/criticism can be and often is raised of practically every important thinker or historical figure who left a lasting legacy in the realm of ideas or events. Human beings, by nature, are complex and complicated and abound in contradictions.

Who is the real Locke? A man who grounded in his theory of freedom and equality in Christian theology or a secular humanist who attempted to transgress Revealed Christianity. Who is the real Lincoln? A man faithful to the principles of the founding, who did more than any other to guarantee to blacks, the equality promised to them under the Declaration of Independence? Or a power-hungry, dictatorial, racist who wanted to send blacks back to Africa.

How about the real Jefferson? What got me thinking of this idea was a post by Will Wilkinson, on Jefferson, where Will states:

The more I read about the guy, the more I dislike him. He was without doubt a man of incandescent brilliance. But he also seems to have been sly, creepy, and an insufferable snob, in addition to having been a racist, slaveholding, anti-cosmopolitan, anti-commercial, Jacobin utopian. When his visage appears on Cato promotional material, as it so often does, I try to stay positive.

To which Sandefur responded "Wilkinson's comments on Thomas Jefferson are just so much pigeon crap on a great man's statue...."

So who was "the real Jefferson," the brilliant defender of liberty and equality, the man who claimed "all men are created equal," that government may, by right, proscribe only those activities that are "injurious to others," -- those that pick the pockets or break the legs of non-consenting parties, or the Jefferson who was a slaveholder, who had a "darker side" regarding civil liberties, who remarked on the biological inferiority of blacks, and who wanted to castrate sodomites?

The answer perhaps depends on how one puts all of these things into perspective. Stanley Crouch once said, remarking on the greatness of the cultural contributions of blacks to America (Jazz, the Harlem Renaissance, etc.), while keeping in mind some of the vile things that come from hip hop culture, (I'm paraphrasing) "you have to be able to separate a culture's garbage from its cuisine." So too with individuals with great accomplishments, but also great personal failings.

On Jefferson, I like to think of "the real Jefferson" as the "ideal" Jefferson, how he wanted himself to be remembered, how he is remembered on his tombstone: Author of the Declaration of Independence, his founding of the University of Virginia (the first secular college in America), and his responsibility for Virginia's Statute of Religious Freedom.

Many of the unpleasant things about Jefferson can be put into perspective or historical context. For instance, Jefferson's revision of a criminal code where he proposed the punishment of castration for sodomy. As Sandefur notes:

This, however, ignores three important things. First, Jefferson was actually decreasing the punishment for sodomy. Jefferson tried hard to decrease the number of capital crimes. (But his Bill for Apportioning Crimes And Punishments was not passed by the legislature.) Second, Jefferson’s draft also made other things illegal, such as “[a]ll attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies,” which was punished “by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes.” Not exactly an ideal model for a free society’s criminal code. (But keep in mind, Jefferson was revising the criminal code, not writing it wholesale.)

Finally, in a footnote, Jefferson added an interesting comment to the proscription on “buggery.” He wrote that according to Coke, “‘Buggery is the Genus, of which Sodomy and Bestiality, are the species…. Sodomy is with mankind….’ [Coke] says, ‘it appears by the ancient authorities of the law that this was felony.’ Yet [a statute from the reign of Henry VIII] declares it felony, as if supposed not to be so.” In other words, Jefferson expresses some doubt as to whether sodomy was a felony (meaning, punishable by death). He the writes, “Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly….”

Although he does not mention homosexuality in this last passage, it does reveal that for Jefferson, sexual acts could only be prohibited if they were “injurious to society in [a] great degree,” not simply on the grounds that such acts violated a law of nature. Acts which did not injure society were sufficiently punished “by universal derision,” not by criminal sanction. I think this reveals that, for his time, Jefferson was remarkably liberal with regard to sexual crimes, or at least, more liberal than some conservatives would admit. In any case, it’s exceedingly dangerous to draw one’s conclusions about Jefferson’s views on these matters from this bill, which was a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually. The fact that he omitted bestiality from the criminal code would not be taken as implying that he endorsed that practice—so why would the fact that his code punished “buggery” be taken as proof that he thought that should be punished?

I should also note that it's not at all clear that Jefferson had homosexuals in mind when he referenced the term "sodomy." Neither this specific statute, nor the common law generally, clearly or specifically targeted same-sex behavior only. Although a few colonies did have sodomy laws that lifted passages right from the Bible forbidding "men lying with men," most sodomy statutes were based on the theory of "unnatural sex acts," meaning any non-penis/vagina act, which could in theory apply to heterosexuals having oral or anal sex, as well as any same-sex activity. Moreover, it's doubtful that Jefferson was aware of the existence of same-sex couples who could flourish in meaningful relationships. Finally, it has also been theorized that "sodomy" laws were mainly directed against non-consensual acts of sodomy. This would greatly explain, for instance, why Jefferson would scrap bestiality from punishment and not sodomy. According to natural rights theory, animals have no rights: we can slaughter and enslave them, eat them and turn them into clothing. Therefore buggering them doesn't violate the animal. But humans do have rights, against which [non-consensual] sodomy laws could protect.

Interestingly it's not just those who want to "debunk" great men who embrace facts about historical figures that don't neatly fit into the commonly understood narrative, but also those who want to claim the historical figure as their own, to promote their agenda. Jefferson is commonly understood to be a classical liberal or libertarian, but social conservatives want Jefferson for their side too. Indeed many social conservatives have cited Jefferson's position on sodomy to try to score points against homosexuality.

When social conservatives make this point, I respond by pointing out some of Jefferson's other reliable socially conservative prejudices. Consider some of the things that Jefferson observed about blacks in Notes on the State of Virginia.

He thought blacks to be less intelligent than whites:

Comparing them by their faculties of memory, in reason, and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless, and anomalous.

He wrote that black men preferred white women to their own kind because the white race was more attractive:

Are not the fine mixtures of red and white, the expressions of every passion by greater or less suffusions of color in the one, preferable to that eternal monotony, which reigns in the countenances, that immovable view of black which covers their emotions of the other race? Add to these, flowing fair, a more elegant symmetry of form, their own judgment in favor of whites, declared by their preference of them, as uniformly as is the preference of the Oran-utan for the black woman over those of his own species [my emphasis].

He also thought that blacks smelled:

They secrete less by the kidneys, and more by the glands of the skin, which gives them a very strong and disagreeable odor.

Just as the modern social conservative could claim Jefferson on his side on the homosexuality issue, so too can the racist select Jefferson's quotes out of context for his side. If Jefferson did seriously believe in punishing non-consensual acts of sodomy, I would place this sentiment into Jefferson's "garbage" box, the same box that includes Jefferson's thoughts about blacks and their biological inferiority. I can still admire Jefferson's "cuisine," the "ideal" Jefferson, the secular champion of liberty and equality, and in my mind, the real Jefferson.

No comments: