Justices Blackmun and Stevens, pro-sodomite Lockeans:

In my last post on understanding John Locke, I noted Harvey Mansfield who described the tension between the more traditional notion that individuals belong to God and Locke's radically innovative insight that individuals own themselves. As Mansfield wrote, "The difference between belonging to God and belonging to yourself is not a small one."

Mansfield and other East Coast Straussians charge Locke, or at least his ideas, with ushering in a radically modern age (the Enlightenment) which broke with the traditional view of nature and public policy.

Whether Locke intended or foresaw that things would go down as they did, is impossible to know. However, there certainly is a kernel of Truth in the Straussians' notion that Locke launched the modern idea of liberty which gave men the freedom to live in radically different ways which previously they did not have. Robert Bork pejoratively terms such a notion, "radical individualism." Locke's ideas logically lead us to such "radical individualism." And Bork would probably agree given that he holds the Declaration of Independence responsible for radical individualism, and John Locke, of course, is the key philosopher behind the Declaration.

Take the dissent in Bowers v. Hardwick, the case Lawrence v. Texas overruled. Justice Blackmun, citing an earlier Justice Stevens opinion (who also dissented with Blackmun in Bowers), held "the concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.'" Bork of course, in Slouching towards Gomorrah, disagreed with this "moral fact." Now, proving that any "moral facts" exist as a matter of 2+2=4 is not an easy task. Often, we have to start with certain asserted premises. And in determining America's governing public principles, the Declaration of Independence is a good place to begin. Well, John Locke, whose ideas are behind the Declaration of Independence, is also the author of the "'moral fact' that a person belongs to himself." No wonder why Judge Bork hates the Declaration of Independence and the Enlightenment!

A couple of things can be said in response. Most importantly that Locke, in his personal position, was anti-sodomy. As Thomas West notes in this article:

"Adultery, incest, and sodomy" are viewed, says Locke, as "sins, which, I suppose, have their principal aggravation from this, that they cross the main intention of nature, which willeth the increase of mankind, and the continuation of the species in the highest perfection" (1.59).

But, given the prejudices ingrained in context of the times, simply looking at Locke's personal position on particular matters is not dispositive in determining which direction Locke's principles ought to logically guide us (or if they are, then Locke's opinions are meaningless and useless to current policy debates). In other words -- and here is the most difficult and controversial part of the analysis -- we have to distinguish between time bound prejudices and timeless principles. Unalienable rights to liberty and equality, self-ownership...those are Locke's timeless principles. How to properly apply those principles is another matter entirely.

So why can't we just take Locke's principles and personal positions together, exactly as he argued for, frozen in Locke's time? Doing such turns Locke into a useless philosopher. Showing Locke is on your side in this regard would be about as valuable as proving that King George III is one your side. First, let's take religious liberty. Locke, although not the first to argue for religious toleration, is without question the most important philosopher to America's notion of religious liberty: Locke formulated the notion that men have unalienable free and equal rights of conscience. Madison and Jefferson could not have argued for religious liberty as they did had there been no John Locke. But Locke, in his personal position, didn't believe in extending tolerance to, among others, atheists or Catholics! However, when Jefferson and Madison took Locke's ideas, they expanded them in the spirit of Locke, to apply universally. After all if "all men" have unalienable rights of conscience, why shouldn't Catholics or atheists possess such rights equally? Are they not human? As such, "Lockeans" Jefferson and Madison asserted that religious rights extended to "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination."

Or take slavery: Even though, as I understand, Locke in some way criticized the institution, Locke ultimately was pro-slavery (at least with regard to non-Englishmen) which he described as "nothing else but the state of war continued between a lawful conqueror and a captive." Back then slavery was, as it had always been, a cross-cultural institution, practiced nearly universally and deeply ingrained into societal institutions. Indeed, Locke held shares in a trans-Atlantic slave trade business.

Locke may have held a personal pro-slavery position, but it is also true that his principle -- "Every man has a property in his own person; nobody has any right but to himself; the labor of his body, and the work of his hands are properly his" -- is one of the most powerful anti-slavery principles ever articulated and surely helped to end that inhumane institution.

In short, if the personal positions of the great philosophers are dispositive and we may not abstract timeless principles from their context and prejudices of the times, such philosophers can do nothing for us in the present. This method gives us a pro-slavery Locke who wouldn't even extend religious rights to Catholics. We may as well invoke Ghengis Kahn as on our side.

If, on the other hand, we may abstract general principles from their context and apply them in ways in which the formulators may not have anticipated, we surely get an anti-slavery Locke, but his "'moral fact' that a person belongs to himself" may also justify such things as the verdict in Lawrence v. Texas.