America's Promissory Note

Michael McConnell: This is our last panel. We saved the best for last. And our two speakers are are Robby George here on my immediate left, who is the McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton. He’s been on, I don’t know, numerous commissions, chair of the International Religious Freedom Commission, and I- and all kinds of other things.

One of the nation’s m- most prominent public intellectuals, I would say. And and Jo- Jonathan Gienapp, a professor of history here. He is the person who teaches the courses on the founding on American constitutional history. I just love having Jonathan on the on the other side of campus.

He’s replacing the great and really ir- irreplaceable Jack Rakove, and I was a little afraid that our history department would go the way that so many history departments around the country, even at great universities, have gone of no longer bothering to have a professor who teaches the founding.

And to have Jonathan as a colleague has just been wonderful. His he has two books. One of them is The Second Creation: Fixing the American Constitution. This is a really innovative book about constitutional interpretation after the Constitution, but for the first decade and his thesis being that the Constitution itself was not fixed, but rather in those– that initial period of interpretation, that’s when our Constitution really got its i- its its genuine shape.

And then Constitution– Against Constitutional Originalism is his his second book and the title says it all. E- except that my book review of it actually says it all. My book review is entitled “Against Bad Originalism.” Anyway the– please join me in welco- welcoming our two speakers.

Robert P. George: Thank you, Michael. I’m immensely grateful to Michael for inviting me to join in this important conference. Michael and I go back a very long way. I’ve admired Michael as a scholar as a judge, a dear friend and as an advocate. I don’t know if I’ve ever mentioned this to Michael, but during my year at the court, which was 1989 ’90, I heard Michael give the most brilliant oral argument I have ever heard anywhere in any court.

It was in the Jimmy Swaggart Ministry cases- case. Which I lost. 9-0. Mi- Michael lost it 9… It was still the most brilliant argument I have ever heard. He had a client who was enmeshed in a massive sex scandal with prostitutes who had a bad case but Michael came up with a brilliant argument.

And when you finished the argument, I thought, “For heaven’s sake, I came into this thinking this is 9-0, no hoper. You might win. Michael might win.” It turned out to be 9-0- … but it was a brilliant argument. I also wanna thank Bella. Where’s Bella? Bella, thank you so much for your heroic patience.

Yeah. She’s done so much to make this such a wonderful conference, and it’s so great to have this opportunity to be with dear old friends. Martha’s here, and Randy Barnett and others, and to make so many wonderful new friends like Alex, Jonathan, Jud. So this is great. The founders themselves, including Jefferson- We’re not insensible, of course, to the contradiction between slavery and the principles of the declaration that we’ve been hearing about over these two days.

Although he was himself, of course, a slave holder, Jefferson said, speaking of slavery, that, and I quote, “I tremble for my country when I reflect that God is just, and that His justice will not sleep forever.” Famously, Jefferson was not a deeply religious man, at least in the conventional sense.

He was not, however, an atheist. Like the other founders, he had a keen sense of human fallibility, or what we would call fallenness, but also a belief in God’s superintending providence. When I think about him trembling for his country when reflecting that God is just, my mind swiftly moves to Martin Luther King’s famous speech on the National Mall in 1963, where he said, and I’m here now quoting what has been quoted before, I’ll quote it more fully.

“In a sense,” King said, “we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note, one to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.”

Unquote. Now most of the slaver most of the founders at least as I understand it and Jonathan can correct me if I’m wrong, perceived slavery to be an evil, but alas, in their view, a necessary evil, not a positive good. Jefferson himself said, if I may quote him again regarding slavery, that, quote, “We have the wolf by the ear, and we can neither hold him nor safely let him go.

Justice is in one scale and self-preservation is in the other.” Unquote. Hamilton and Adams, among others, hated slavery, but they were willing to compromise on the issue so that the Republic might come into existence. They did so while anticipating that a republican form of government would not tolerate slavery indefinitely.

And of course, slavery was indeed eventually abolished, albeit at the price of a civil war whose carnage was nearly incalculable. My colleague and friend at Princeton, Jim McPherson, calculates the number of deaths in the American Civil War as seven hundred fifty thousand in a population of twenty-something million.

Extraordinary carnage by any standard. And even then, there followed other evils, as grave or nearly as grave as slavery itself, evils that embarrass our national commitment to the inherent dignity and equal natural rights of each and every member of the human family. We can, however, in my opinion, say this.

When our nation has gone wrong, it has never been the fault of the principles of the Declaration or of an excess of zeal for those principles. On the contrary, when we have gone wrong, it has been the result of infidelity to those principles. It seems to me if the that if we are to renew our nation’s fundamental sources of unity and strength, we must understand some things about the Declaration’s principles.

First, natural rights and republican institutions of the sort we embrace are not, indeed in principle cannot be, the product of a mere modus vivendi or the fruit of some kind of a deal. Second, Americans must deeply understand that the most basic rights of human beings really aren’t granted by any merely human authority, such as kings or presidents or parliaments or congresses or courts or the state or the law.

They are rather, as the Declaration asserts, given to us by a more than merely human authority, who created us as bearers of profound, inherent, and equal dignity. Inasmuch as unalienable rights are not granted or conferred by any merely human power, they cannot be legitimately violated or taken away by any merely human power Some background on the declaration.

Against all odds, the American revolutionaries prevailed in that struggle that they waged for independence. A ragtag militia faced the greatest military on the face of the earth, and the likely ending to that story was the hanging for treason of those who fomented and led the rebellion. They knew that.

They knew that they were putting their necks in nooses. Astonishingly, however, the colonies, now states, succeeded in their military struggle. Having liberated themselves from what they regarded as tyrannical rule, they found themselves facing the issue of what form of government they would establish in its place.

What would it be? Would it be another monarchy, just a better one? Would it be a republic? Making it a republic wasn’t obviously the correct answer at that time. As the founders knew very well, over the course of history, republic after republic had risen and fallen, some collapsing into the very worst forms of tyranny.

For many people, the lesson to be drawn from that history, from those past efforts to establish durable republics, was that human beings are simply incapable of, unfit for self-government. The best that could be hoped for, some supposed, was a more or less benign form of despotism. So perhaps the answer was to replace a bad king, or what they thought was a bad king, with a good king.

And there was a potentially very good king right there at hand in the person of George Washington. Indeed, Washington had the makings of a great king, precisely because he did not want to be king. The best kind of king is a king who is made king against his will. Still, our founders opted against installing one man and his descendants to reign over the new country.

They opted for a republic. Perhaps they thought a way could be found to address and ameliorate the factors that had caused previous republics to fall and fail. Perhaps the key was limitations, constitutional structural constraints of some form, on the amassing of executive power in the hands of one man.

After all, it was the singular concentration of power, beginning with Sulla and culminating in the dictatorship of Caesar, that had precipitated the fall of the Roman Republic. Hence, eventually, a constitutional settlement featuring a system of federalism dividing power between a national government of delegated and enumerated powers, and therefore strictly limited powers, and states as governments of general jurisdiction exercising a kind of plenary authority in the form of what Randy Barnett called police powers, alongside a system of separated powers and checks and balances within the national government was established From the beginning, an important feature of the American conception of Republican government and ordered liberty is that there are cultural preconditions, prerequisites for their adequate maintenance.

My friend Martha tells me that she’s working on a book on precisely this issue. Foremost among these, in my view, is the wide sharing of the belief that there is indeed a more than merely human source of unalienable rights, a Creator, and that human beings have indeed been fashioned by their Creator as bearers of profound inherent and equal dignity.

If rights such as those of life, liberty, and the pursuit of happiness are merely given by the state or by some other human authority, they would not be unalienable. They could be taken away if judged unnecessary or unwise or counterproductive. However, because our rights originate from an authority beyond the merely human, they again cannot be taken away by any merely human power.

And so John Adams famously said that the Constitution would not serve any people other than, quote, “a moral and religious people.” And of course, as the founders knew, government itself cannot create a moral and religious people. A king, a president, a legislature, a court cannot make people moral and religious by handing down some sort of edict or something like that.

Our founders knew about the good features of human nature, to be sure, but they were very aware of the bad features. We are, they believed, endowed with rights that the government must respect, but also capable of great evils, which in many cases it is government’s responsibility to restrain.

They knew that no one, given our faults and failings as mere mortal creatures, could be trusted with unchecked and unaccountable power. The Madisonian structural constraints on power found in our Constitution were, the founders said, you can look it up in the Federalist Papers, auxiliary precautions against the forces that could undo Republican government and ordered liberty.

As important as those constitutional structural constraints are, Madison and the others believed that by themselves they would be insufficient. They weren’t even primary. They were auxiliary, that is to say secondary The primary protections against human weakness and failing, those human weaknesses and failings that will ultimately threaten republican government wherever it’s tried, and which pla- place people at risk of falling into tyranny, have to be in the well-formed character of the people.

That’s why, bad as we are, we frail, fallen, fallible human beings, we need some virtue if republican government and ordered liberty are to be established and maintained. But we’re not gonna get that virtue from the president or from the Congress or from some king or some parliament. If it’s to be transmitted to each new generation, the primary role will have to be played by mom and dad and grandma and grandpa and auntie and uncle and teacher and pastor and coach and librarian.

They probably didn’t have Little League in those days, but today I would say Little League, the Camp Fire Girls, the Scouts, and so forth and so on

Hence, Madison’s insistence that, quote, “A well-instructed people alone can permanently be a free people.” And by well-instructed, he didn’t mean simply having intellectual knowledge. He meant having knowledge and virtue instructed in how to live a virtuous and flourishing life. Hence, too, the awareness of Madison and the other founders of the importance of the institutions of civil society, the family, the religious community, and the like, those institutions that really do bear the primary responsibility, a burden that government simply can’t bear, the economy can’t bear, business corporations can’t bear, courts can’t bear.

It falls to families to inculcate knowledge and virtue of the sort that makes it possible for people to lead good lives and function as responsible and effective citizens in a regime of self-government All right, now to that famous second sentence that has been quoted probably more than any other in these two days.

Let’s listen to it again. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. A fair reading of our founding documents makes clear that they are not grounded in relativistic or subjectivist principles or premised on political theoretical innovations such as what John Stuart Mill would call abstract right or what is sometimes called anti-perfectionism in political theory.

Our national commitment to equal dignity in republican government is itself the fruit of substantive moral conviction. Conviction ultimately founded on truths that our nation’s founders proclaimed as self-evident. Jefferson’s original words were sacred and undeniable. We hold these truths to be sacred and undeniable.

It was Franklin who suggested to him the simpler term, we hold these truths to be self-evident. That is to say basic. Not self-evident in the sense that everybody agrees to them. Obviously, for most of history, most people didn’t agree to them. Not self-evident in the sense of obvious and that everybody can see them immediately.

Not everybody can see them immediately. But self-evident in the sense of basic, fundamental, not derived from something else. Philosophers will still recognize self-evident in that sense, that technical sense. Our national commitment to equal dignity in republican government is itself the fruit of those substantive convictions, and the first of those self-evident principles is that freedom is to be honored and respected.

It must be because human freedom is what is required by the laws of nature and nature’s God, to quote the Declaration again. It cannot be because there are no laws of nature and nature’s God. Any argument for liberty that appeals to relativism or subjectivism is going to be self-defeating Now the founders again were realists.

They knew perfectly well that there were a vast number of respects in which human beings are most definitely not equal. As a matter of material fact, we are unequal obviously in things like height and weight, but also in strength, intelligence, beauty, talent, charm, and on. But what should follow from that regarding how government should treat…

But the question is, what should follow from those inequalities, those differences when it comes to how the government should treat the interests or well-being or status of people? Should government favor, treat as more worthy those who are stronger, more powerful, more intelligent, more talented? And of course, our founders say no.

Rather, in the most fundamental respect, that is in respect of the dignity and worth of a human being, the government must treat all as equal. That is to say equal in worth and dignity. When you think about it, the Declaration’s claim to the moral equality of persons is a radical one. By moral equality, I don’t mean people being equally virtuous.

They knew that not all people were equally virtuous. There was a very, there was a very big spectrum when it came to virtue. But I mean by m- morally equal, they’re equal in terms of their moral worth, their basic dignity. So it’s hard for us to imagine how truly revolutionary those words were in 1776.

Most societies have not historically recognized the equal dignity of all members of the human family or even members of their own communities. Throughout history, people have believed not in equality, but in its opposite, in inequality. Some people regarded as superiors and others as inferiors. That most people have supposed in most cultures and most times is just the way things are.

That’s why we have classes and castes and all sorts of rankings of human beings when it comes to dignity. Speaking for the American people, however, Jefferson and our country’s other founders proposed a new course to build a republic on the principles of equality and liberty. What’s repudiated by the Declaration is the idea that there are some people who are inherently inferior and other people who are inherently superior.

Indeed, as moral equals, in the sense I just described, people have the right to lead their own lives without being treated as mere means to other people’s ends, whether the other people are the government or the wealthy or the powerful or the betters or what have you Now this this right not to be treated as a mere means doesn’t entail a doctrinaire libertarianism of either an economic or a social sort, but a recognition that in a vast range of areas, individuals, families, and other units of society, civil society, do best, they’re most likely to flourish, to thrive when government respects their judgments rather than trying to organize everything from the top.

The principal role of governments rather is to secure those unalienable rights

It was on the basis of the laws of nature, natural law, and nature’s God that America’s founding statesmen launched the experiment that would test whether a true regime of republican government can, as Lincoln put it, long endure. By Lincoln’s own math of fourscore and seven years ago, this takes us back to the ratification, not to the ratification of the Constitution in 1788 or its adoption by the Constitutional Convention in 1787, but precisely to the Declaration of Independence in 1776.

Now, were these ideas in the Declaration really new? Were they novel ideas? Were they purely Lockeian or Enlightenment ideas? People are often tempted to think so. Thomas Jefferson insisted that they were not. He pointed rather to the deeper roots of the natural law philosophy that shaped the Declaration.

Reflecting on the founding in the May, in May of 1825, a little more than a year before his death, and the death on the same day, July 4th, 1826, of his revolutionary comrade and friend, and then political foe, and then friend again on the fiftieth anniversary of the Declaration, Jefferson said, and I quote him again, that the founders’ aim, quote, “Was not to find new principles or new arguments never before thought of, or merely to say things that had never been said before, but rather to place before mankind the common sense of the matter.

It was intended to be,” he’s talking about the Declaration again, I’m still quoting him, “It was intended to be an expression of the American mind and to give to the expression the proper tone and spirit called for by the occasion. All its authority rests on the harmonizing sentiments of the day, whether expressed in conversations, in letters, in printed essays, or in the elementary books of public right as Aristotle, Cicero, Locke, Sidney, et cetera.”

Now it goes without saying that Jefferson, a learned man, was aware that in a vast range of particulars, Aristotle’s approach to practical reason and moral and political theory differs from Cicero’s approach, which in turn differs from Locke’s approach, and so on. So he wasn’t saying all these figures that he’s citing on his non-exhaustive list of influences here are on the same page about politics.

Not at all. So it would obviously be erroneous to interpret Jefferson as claiming that the United States of America was founded on a particular natural law theory, say Cicero’s or Locke’s. There was no common theory to the four people he mentioned, and plus of course there is that et cetera, which means that there are other influences w- influences as well.

He’s looking to this broader tradition in which all of them figure for just the basic ideas of the new republic, justifying the separation, justifying the establishment of a new regime, as the political scientists say. Now it’s interesting to be sure that Jefferson mentions the English political tradition as well as the traditions of Greece and Rome, yet he doesn’t mention the Bible Nonetheless, the famous second sentence of the declaration, the one that we’ve been quoting time and again, we hold these truths, cannot but call to mind, at least for me, Genesis one.

Indeed, it seems to me that it presupposes that tradition or something very much like it. We human beings, though we are made from the mere dust of the earth according to Genesis one, we’re material beings that will someday die and dissolve, are nevertheless made in the very image and likeness of the divine creator and ruler of all that is.

The concept of the Imago Dei, man being made in the image of God, puts in place the predicate for the proposition that human beings are indeed bearers of profound, inherent, and equal dignity, created equal, endowed by their creator with unalienable rights. But if I’m right about that, it’s worth reflecting on the question of what it could possibly mean to say that man or the human being is made in the very image and likeness of God.

After all, it can’t mean that God has five fingers on each of two hands and hair on his head and a nose. God, if he exists, is spiritual, not material. So it seems to me, and this is very much in line with the historical int– authorities interpreting scripture in the Jewish and Christian traditions, it must mean that human beings have the literally godlike awesome powers of reason and freedom, the powers to envisage states of affairs that do not currently exist or obtain.

To grasp the intelligible point, the value, the worth of bringing those states of affairs into existence, and then acting freely on the reasons that one grasps to bring those states of affairs into existence precisely to bring those states of affairs into existence, acting freely and on reasons, not on instinct or impulse like a brute animal.

It seems to be that distinguishes the human being from non-human creatures. Probably that which distinguishes where is he, Alex? The human being from the machine, even the super intelligent machine. Now, just as the founders believed in natural law, the moral law written into human nature and accessible by human reason They also believed in natural rights that are substantively grounded in the goods they protect.

Those rights constitute moral realities that demand, as a matter of justice, legal recognition and protection. Now, of course, the language of rights is not strictly necessary in order to make claims of justice, and some scholars have a concern that rights language might imply a kind of radical individualism which is incompatible with human solidarity of the thor– of the sort that is celebrated by the world’s great religious and philosophical traditions.

So we’ll often hear criticisms of rights talk. Yet for some of us, and I would include myself in this group, there is still value, special value, in the language of rights. It’s useful. It does enable us, in a compact way, to pinpoint principles of justice and make claims on behalf of victims of injustice Now, having considered the moral and philosophical basis for the appeals made in the Declaration of Independence, let me now turn to a consideration of the declaration’s crucial enumerated examples of those rights of life, liberty, and the pursuit of happiness.

The right to life is the first and most foundational of all our unalienable rights. If human beings had no right to life, if their lives could freely be taken, if they could legitimately be treated as objects, instruments, property, as for example in slavery, and this is why slavery contradicted the principles of the declaration, then there simply would be no unalienable rights, no inherent worth or dignity.

If anybody had worth or dignity, it would be because somebody else conferred it on them or because they achieved it in some way or something like that. Human beings in that case would not as such be ends in themselves, entities that ultimately matter, but mere means to other ends, and indeed to other people’s ends.

Justice would be what Thrasymachus in Plato’s Republic supposed it to be, namely the rule of the strong. The right to life reflects our status as bearers of inherent dignity and creatures whose worth is not merely instrumental. Rather, it is intrinsic, inherent. Properly specified, the right to life is a right not to be killed, either as an end in itself or a means to some other end.

It’s a right not to have one’s physical reality treated as a mere means. As an unalienable right, what we today commonly call a human right, it’s a claim upon others that we have simply in virtue of our humanity and nothing else, not in virtue of anything we achieve or acquire. We don’t have to earn our right to life.

We’ve got it simply in virtue of our humanity. Some implications of the right in respect of the obligations owed to people by the agencies of government were spelled out in 1868 in the Fourteenth Amendment to the Constitution. No state shall, quote, “deprive any person of life, liberty, or property without due process of law or deny to any person within its jurisdiction the equal protection of the laws,” unquote.

Very much in line with the declaration Liberty. A synonym for liberty is freedom. Philosophers sometimes distinguish two types of freedom, namely freedom from and freedom for. Mere freedom from, that is the freedom to do what one wants, whatever one wants, free of anybody else’s interference, is what our founders would have rejected as license, not true liberty.

True liberty is freedom for people to pursue honorable and righteous ends. Here’s an example. Our Constitution in its First Amendment recognizes the right peaceably to assemble and petition the government for redress of grievances. As a negative liberty, it’s freedom from the government’s breaking up, say, a peaceful demonstration, criticizing the government’s policy on some issue or another, or punishing people for participating in such an act, a protest.

But as a positive liberty, it is the freedom to advocate on behalf of a just and righteous cause. Now, of course, people sometimes abuse their liberties. Our founders understood this . They can use their freedom to advocate for just causes to advocate for unjust causes. That freedom can be used by Martin Luther King, but it can be used by the Ku Klux Klan.

And such abuses, such as the Klan’s abuses of that honorable freedom must often be tolerated precisely because we wisely decline to entrust government officials with the power to decide whether criticism of their policies is in fact warranted. Still, the reason for recognizing the freedom to protest is precisely to enable people to advocate for just and righteous causes.

It’s clear then that our founders in proclaiming and protecting liberty were not indifferent to the distinction between good and bad, right and wrong, virtue and vice, justice and injustice. In distinguishing liberty from license, a crucial distinction for the founders, they counted on our moral and religious convictions, back to Adam’s famous quotation, shaped by those institutions of civil society, what Burke called the little platoons, what Tocqueville would eventually write about, shaped by our families, our religious communities, and other institutions to restrain us from immorality and injustice.

Throughout American history, reformers have appealed to the Declaration of Independence in dismantling, as we have done, albeit slowly and with great struggle, the systems of racial oppression that contradicted the principles of equality and liberty expressed in that document. And we just heard in the previous session some interesting things about that history and the way that the declaration was looked to as eventually Martin Luther King would look to it, as something, a set of ideals to which we aspire, that promissory note yet again.

Licentiousness masquerading as liberty is a stark departure from what the authors of the Declaration and the Constitution understood to be the guiding principles of our republic. The founders believed that our God-given rights were not meant to facilitate our passions, but rather were intended to allow us to direct our actions toward what is good, true, right, virtuous.

And when properly understood, America’s promise of liberty, the concept that our founders embraced, even if they did not always live up to it, is demanding. It calls us to become our best possible selves, people worthy of self-government. So the liberty of the Declaration, the liberty of the founders, is not the liberty of my generation, the me generation, captured in that famous phrase, “If it feels good, do it.”

That’s not it. They distinguished liberty from license. Honorable liberties, not just giving into your passions, doing what is right, even in the face of strong temptation, passion to do otherwise is what liberty calls for. There’s no doubt that the preservation and protection of liberty in that sense is at the core of our nation’s promise.

Indeed, we take for granted that our founders fashioned Americans– America’s civic institutions and constitutional structures with the aim of guaranteeing liberty. But it matters, both as a matter of refined and accurate historical understanding and as applied in practical political contexts, such as courts trying to discern the meaning of constitutional provisions such as those in our Bill of Rights, how we understand the normative content of liberty

Finally, just a word about the pursuit of happiness. I’ve jumped ahead because I’ve taken too much time already. This is the pursuit of happiness that the Declaration proclaims. Not happiness in the emotivist sense of pleasant feelings and sensations, but happiness as felicity, the flourishing, the thriving, the fulfillment we human beings can attain by acting uprightly, virtuously, for the sake of worthy ends.

The trouble with our reading the Declaration today, if we abstract from the historical context, the trouble is the term happiness has come to have a connotation of meaning having pleasant feelings, having a smile on your face, having– being satisfied, having your desires gratified. We think of happiness as something a sort of psychological state that could be induced by a drug, Darvon, or or by being hooked up to Robert Nozick’s famous experience machine or something like that.

But that is a recent development in the meaning or connotation of the word happiness. Even as recently as the nineteenth century, when the great translators of the thinkers of antiquity of Plato and Aristotle and Cicero, people like that, even as late as the nineteenth century, Aristotle’s term eudaimonia, which I think is best translated as flourishing or thriving, was translated by those great nineteenth century translators as happiness, not because they made a mistake, but because in their time, happiness was morally inflected.

It was not a psychological state. It was rather a state of flourishing, a state of virtue. But with the erosion of that understanding of the term, if you now say pursuit of happiness, people will interpret that as meaning having a smile on your face, a certain kind of pleasant psychological state, getting what you want, having your desires gratified, perhaps becoming– being happy by being put on happiness drugs or something like that.

It’s really critical to see the moral inflection of the term. The pursuit of happiness is the pursuit of thriving, the pursuit of flourishing, the pursuit of felicity. Not doing what you please, whatever you please, be it morally right or wrong. Not the gratification of desires, whatever they happen to be.

Not a pleasant psychological or mental state. On the contrary, all-round well-being, integral fulfillment, flourishing Our founders were very far from embracing the ideology of what the great late, alas Berkeley sociologist Robert Bellah would label expressive individualism. Our founders would’ve rejected that idea more or less wholesale, since their understanding of liberty was for the sake of moral, morally upright and virtuous ends.

Happiness was understood to be, and in my opinion is best understood to be, a state of being, and most particularly, a state of character. The concept of happiness was morally inflected for the founding generation and for successor generations until really quite recently. In this respect, our founders, though they were modern men, again, were walking in the light of classical antiquity and the Jewish and Christian traditions.

Thank you

Jonathan Gienapp: All right, so it falls to me, the final speaker of the final panel of the final day, to do my best to ensure that everybody remains awake. But that will be much easier given that I have the great pleasure of commenting on Robert George’s characteristically thoughtful and interesting paper, which as we’ve just heard, offers a considered account of the animating purpose of the Declaration of Independence, delivered principally through a close reading of the declaration’s opening and most famous sentences.

And it does so to understand the conception of ordered liberty based on natural law that he argues is at the heart of the declaration. A conception of liberty quite different, as he just emphasized, for more individualistic and permissive forms of liberty that he says have taken root more recently.

And thus, a conception of liberty very much in the vein of freedom for, rather than freedom from, or to use Isaiah Berlin’s notion, this is part of what’s in the paper, but skip past famous notion of positive versus negative liberty, that the founding generation had a very positive notion of liberty as opposed to a more negative one.

So I certainly agree that the American founding generation often thought of liberty more in, in more positive rather than negative terms, though here I would emphasize not just liberty to cultivate virtue or live a flourishing life, though those things were extremely important. But I think the more basic conception of positive liberty that they often vocally defended was essentially political which is the first thing I wanna ask about which was really predicated on the essential conditions under which they believed human agents in political society could be said to be free.

In the eighteenth century English-speaking world in which American colonists turned revolutionaries were deeply immersed and socialized, liberty was not defined in terms of coercive interference. Freedom was not a state of non-interference, of free agency, movement, or license. Liberty was instead understood principally as non-domination, as being subject to one’s own political will rather than that of an alien will, as being self-governed rather than externally governed by an agent alien to oneself.

So political freedom was not a measure of coercive interference, but of who, and therefore with what legitimacy, was doing the interfering Those who were free lived under laws and strictures of their own making, under regulations that bore their consent, that were made by institutions that were genuinely representative of the people they governed and made for the people’s true general welfare.

This was a c- the conception of liberty that the American revolutionaries articulated and defended time and again to protest British governance of their affairs, and then after independence, to judge their own systems of constitutional governance. Liberty expressed through the language of rights provided the basis for understanding the foundations of legitimate as opposed to illegitimate governance.

In many ways, the great promise of the Declaration in America was this promise, the promise of self-government, of genuine republican self-government, which was certainly among the most important understandings of equality that Jefferson and others who helped him write the Declaration of Independence had in mind.

Not simply the very important understanding of individual equality that they had, and that is so familiar to so many of us, but the notion of collective equality, that is, that Americans’ equal right as a people to declare themselves as such and to govern themselves as they saw fit. So Professor George focuses most of his attention of the Declaration’s on the Declaration’s famous opening sentences.

But if we connect those opening sentences to the long list of grievances against King George III which i- in the late 18th century were in some ways the centerpiece of the Declaration I think we find this conception of political liberty, positive political liberty, coming through quite clearly.

The Declaration’s first and most important purpose in its context was to justify the right to revolt against established British authority, and thus it needed to show the long trains of abuses and usurpations that alone would justify that. I emphasize all this because to my mind, it offers a different, if certainly related, way of understanding how liberty to or freedom for was baked into the Declaration and because it leaves me wondering what happens to Professor George’s account of the Declaration’s promise if we emphasize the political in addition to the moral nature of freedom.

How does Professor George’s account of the freedom to flourish morally connect to the freedom to be self-governed? What happens, in other words, if we center republicanism and democracy in the story of the Declaration’s promise? And might that change in any way how we think about some more recent conceptions of liberty that he says are in some ways a departure from the founding promise?

Are there any ways to understand some of those notions of liberty as realizing this promise of democratic self-government among equal citizens? I ask all this in part because the founding generation, as Professor George absolutely rightly suggests, tended to see the political, the civic, and the social as tightly intertwined.

Republicanism, for them, described not merely a political regime, but a broader sociology, an account of how society was and needed to be structured, and how those things reflected or encouraged distinctive mores and habits that would make Americans a republican people as opposed to a non-republican one In speaking to these absolutely vital connections, Professor George is quite right to draw attention to how the founding generation emphasized the importance of culture and civil institutions that could shape the right kinds of civic and personal habits and encourage the right kind of morality.

He is absolutely right that they assumed these things were prerequisites of a project in self-government working. If a people did not have a republican character, republican government would not work. But one key dimension of this thinking that we might also consider, which is absent from Professor George’s otherwise edifying discussion of civic health and morality, yet was ex-was quite dominant in revolutionary American republican thinking, was the structure and distribution of wealth and property, the material foundations of free government and especially the potentially corrosive character of radically unequal fortunes.

As Noah Webster put it in seventeen eighty-seven, quote, “A republican or free government necessarily springs from the state of society, manners, and property.” And that was because, as John Adams put it, as so many did in seventeen seventy-six, James Harrington, the great seventeenth century English political theorist, has shown that power always follows property.

Republican institutions, which necessarily called for broad political participation in the polity, could only work in political communities, the argument went, where there was a relatively equal distribution of wealth and property, in particular land. That is, a broadly shared state in the material foundations of the republic.

If that material foundation was not sufficiently broad, the political foundation could not be adequately broad, which is why Webster said, “A general and tolerably equal distribution of landed property is the whole basis of national freedom.” And as Samuel Bryan, the Pennsylvania anti federalist explained, “A republican or free government can only exist where the body of the people are virtuous and where property is pretty equally divided.

In such a government, the people are the sovereign, and their sense or opinion is the criterion of every public measure. But when this ceases to be the case, the nature of the government necessarily changes, and an aristocracy will rise on its ruin.” And Professor George mentioned some of the reasons the founding generation and others have pointed to why Rome went from a free to a despotic state.

The massive increase in wealth as the Roman Empire expanded and how that was unevenly distributed was also something that the founding generation emphasized as corrosive of the republican virtue that had made Rome initially free. Now, very importantly, this did not mean a perfectly equal distribution of property and wealth.

Far from it. Few endorsed radical leveling of that kind at the founding, not least because private property rights were strongly valued. But what it did mean was that gross and stark inequality of the kind found in Europe and throughout most of human history was incompatible with republican mores and government from shaping the kind of republican balance and character that was necessary.

So something needed to be done to ensure that kind of gross and stark inequality would never take root in America. And to try to find the necessary sweet spot between these things, the revolutionary generation rooted around for a lot of different policy options. The one that proved most popular by far was to reform inheritance laws, in particular to abolish primogeniture and entail two of the English common law technologies they had brought over from England.

Primogeniture establishing that large landed estates would pass down from families to the– in their entirety to the eldest son, so they wouldn’t be broken up among multiple childrens. And entail ensuring that the holders of landed estates wouldn’t parcel out or mortgage out the land in such a way that would squander it.

These were ways to consolidate wealth over time. By seventeen ninety-eight, every single state in the United States had reformed inheritance practices in some fashion, and everything, each single state had abolished primogeniture. Thomas Jefferson regarded few of his contributions as important as authoring the bills abolishing these land inheritance practices in Virginia for, as he put it, these laws laid the ax to the root of the pseudo aristocracy.

And hearkening back again to ancient Rome to the second century, the debate over the agrarian laws and the distribution of the public lands under the Roman Republic he called the abolition of primogeniture and entail the best of all agrarian laws. They would ensure a republican foundation on which a republican government could survive So Professor George emphasizes a very important facet of civic and republican balance in which the passions are moderated by the right kind of morality through civil institutions and civil society.

But another way in which a republic could exhibit this sort of crucial balance was by mitigating the harm of excessive material inequality and its pursuit. So on my next question to Professor George is: Was the founding generation, or at least the significant cross-section who spoke this way, right to warn against this?

Were they right to believe that virtuous ordered liberty was threatened by material excess inequality and exploitation, that unfettered profit-seeking compromised republican liberty in the same kinds of ways he described a certain kind of immorality as doing so? And if so, what does that mean for the state of our economy today and how it is structured and so many of the complaints that have followed from it?

But my more basic question is to his very nice portrait, which I think is right on, about civic health and morality as the founders understood. If we add wealth and property and its potential unequal distribution, what does that do to his account? Does it complement it? Does it underscore it?

Does it contradict it in any way? I draw attention to this facet of revolutionary thought not only to underscore the relationship originally perceived by many people at the founding between economic inequality and republican balance, but also to get at something else that I think speaks to Professor George’s paper, how the expectations of many founding era leaders were quickly subverted by the desires and conduct of their fellow Americans.

Most of the statesmen, Jefferson, Adams, Webster, who emphasized the importance of curbing stark wealth inequality, did so not to eradicate political inequality, but rather to produce the right kind of inequality. Now, they certainly believed that all people were equal from a political sense in service of having equal dignity.

But the belief was, and this was deeply rooted in the Republican tradition, that if you could take an ax to the foundations of artificial aristocracy that created artificial distinctions, and with it fake and spurious claims to power and influence, that would inexorably lead to the rule, as Thomas Jefferson put it, quote the rule of the natural aristocracy of virtue and talent.”

If you got rid of artificial distinctions that had defined power distributions across time, all that would be left to differentiate people w- was merit, and the people in a republican scheme would naturally defer to those who are best suited to rule. But it could certainly be argued that is not what happened.

That’s certainly a great many founding statement statesmen lamented this fact as they were passing from the scene, that this sort of equality of condition under the United States had not led to the quality of statesmen that they were hoping for, and this was also something that Alexis de Tocqueville later so famously stressed in Democracy in America.

And that was in part because ordinary white male Americans did not readily defer to a natural aristocracy, but instead clamored to themselves have a say, to have their interests represented honestly in government, and to have their voices heard. They sought economic opportunity and true political equality as they understood it.

And in, in concert with that, they defended a more raucous brand of political speech. And importantly, they linked all of this to what they regarded as the purpose of the American Revolution and the Declaration of Independence. Attending to this early conflict over the true principles of the Declaration and what they meant in practice I think in certain ways complements at least to complicates, at least to my mind the idea lurking in Professor George’s account that there was initially something of a consensus on the Declaration’s principles from the founding on into the 20th century that only recent innovations that have turned to a different understanding of liberty have upset.

If we return to, say, the early 19th century, founding era leaders didn’t have to wait for the 20th century to find Americans who, in their eyes, had abandoned the true meaning of liberty and allowed the pash- passions to run amok. The brand of rugged political egalitarianism that a great many Jeffersonians and Jacksonians so vigorously championed was indeed a radical affront to much of the leadership class that had helped establish American institutions and principles Many members of that original leadership class condemn these democratic insurgents precisely for mistaking license for liberty.

The rage for paper money and material improvement defended by many as straightforward pursuits of happiness were seen by a great many as corrosive on moral virtue. The Federalists enacted the Sedition Act of 1798 entirely they, because they thought people had mistaken true liberty with license. But those early Democrats denounced these efforts to silence them and to belittle what they took to be their pursuits of happiness in tu- in turn defending what they were pursuing and how they were pursuing it and what was being called licentiousness as the true spirit of equality that had been at the heart of the Declaration of Independence and the Revolution.

So there was a bitter struggle here over the Declaration’s meaning and purpose that was generative of new readings and ideas. There’s undoubtedly value, enormous value, in attempting to distill the common precepts that animated the Declaration in its own time, but I also wonder what happens when we put that alongside when we try to see also how the Declaration did not merely lay down a promise, but generated a debate almost immediately over what that promise exactly was.

A debate over the true meaning of liberty, where each side often complained the other was being licentious but very much thought they were not. And in crucial respects, part of what makes this important is the founding generation, that I think shared a lot of what Professor George had in mind, lost key aspects of this debate.

Rather than the republic they were hoping would emerge in Jacksonian and Antebellum America, in some ways, in great many ways, it was their sort of more middling and radical Democrats who had a sort of more raucous view of political engagement and speech that helped establish some of the more normal and standard conditions of how our American democracy has functioned since.

So my last question then, in conclusion, is how do we understand that original debate, which is not just between the founding principles and the Me Generation, as you called it but that early debate over people who were called to be licentious, but in some ways, you could argue, eloped with the soul of America?

Thank you.

Robert P. George: Thank you Jonathan. That was just a wonderful commentary, and all the questions you raised are valuable and important ones. Some of them I’ve not given very much thought to, and I really should, and I’m especially grateful for for those. To go back to your, what I take to be your very first point on the concept the centrality of the idea of non-domination to the founders’ understanding of liberty.

You’re probably familiar with the work of my colleague, Philip Pettit-

Of course …

Robert P. George: in political philosophy on exactly this point. And I think you’re absolutely right that I did not, in my paper make enough of a big deal out of that, and it is a big deal. It’s not the whole story, obviously.

But it deserves more attention in the story than I got. And what Jonathan means here, I think, and you’ll correct me if I’m wrong, is, part of the essence of being free for the founders meant living under a just government, a non-tyrannical government. Now, a non-tyrannical government would be a government in which you actually had some measure of participation.

So it, that means that the sharp difference or distinction that we sometimes tend to draw today between liberty and democracy, and I think we’re right to, to worry sometimes about the tensions between liberty and democracy n- they’re more interested in the way in which democracy, what we would call democracy, they would not prefer that term, they would prefer the term republic, but self-government, let’s say and and freedom.

They… In their understanding, those are pretty much the same thing, at least self-government is a very important dimension of freedom properly understood, so absolutely on that. Inequality of wealth. , I can’t myself think, but I’m not an historian so you’ll know better. I can’t myself think of the A-list founders who make a very big deal out of the threats to liberty or to virtue of gross inequalities of wealth. They’re… Maybe they’re there, but I can’t think of them. Now, that doesn’t mean that they didn’t worry about them, the fact that they didn’t make explicit statements, if I’m right that there are no explicit statements from them about that.

Of course, one thing they really did worry about was the opposite, the enforced economic equality. So in Federalist Number 10, which is Madison’s great reflection on why previous republics have failed, and he makes the argument that the thing that brings them down consistently over history is faction and the reason we have faction is rooted in this corrupt nature and we got this very Calvinist account, which he undoubtedly learned from his teacher, John Witherspoon-

at Princeton of of human nature. And in his closing oration, that’s where you got that phrase that you quoted, rage for paper money,” Madison warns precisely against the abolition of debt, a rage for paper money, I’m quoting now, or any other improper and wicked project. So when he was thinking of archetypal, improper, even wicked projects, this forced economic equality idea, abolition of debt, paper money is precisely what comes to his mind.

So I d- I infer from that and again, with the historical record will be whatever it is, I infer from that his greater worry was forced equality than gross inequality of wealth. Now, I’m at risk here because I’m not an historian, of simply attributing to the founders my own views on political economy

So I hope I’m not doing that, and I’m gonna try not to do that. But if I had to give an account of their worry about something like serfdom, which would be an archetypal case of the damage done to Republican government from inequality, economic inequality I think their worry would be about what we today would call social mobility.

For a republic to flourish, people can’t be stuck economically in where they begin. 80 something years later, or maybe a little less than 80 something years later, Lincoln would give his account of the importance of social mobi- what we would call social mobility to Republican government when he would tell the story of the hypothetical story that there was a man who hired himself, who was a poor man, who hired himself out to another man who was running a business.

And the man who hired himself would save some of his money, and eventually he saved enough that he himself could establish a business. And then his business prospered to the point where he needed to hire a man to help him with his business, and he hires a poor man who then works, makes some money, establishes his business.

It flourishes. He’s able to hire. He needs to hire another man. And so the system works, and here you have free people, not in a position of serfdom, not because everybody’s equal, and not even because there aren’t significant inequalities, but because you’ve got social mobility. The man who hired himself out began with nothing, and now he’s a business owner, and he’s hiring a man.

What the founders would make of our circumstances today, I would just not venture a- Fair enough … venture a guess because I think it would have been impossible for them or anybody to imagine our current situation. The f– remind me of the final, that closing question that was important. The sort of

Jonathan Gienapp: early debate over liberty and licentiousness.

Robert P. George: Yes. Yeah, exactly right. Okay. Bingo. Yes. Yeah. Touché. Absolutely right about that. Now- From our perspective, or at least from my perspective today, that looks like a fairly narrow debate. They are debating what counts as liberty and what counts as licentiousness. No question about that.

Jonathan’s absolutely right about that. And to them it sound- it seemed like they were poles apart. But there was a much deeper sharing, I think, today, d- then between them objectively than what we have today. Now, that didn’t mean that there was less passion in the debate. There was plenty of passion in the debate.

Think about the 1800 election, between Adams and Jefferson, and the vitriol and the polarization and re- and it was a threat to Republican government. There was a question about whether the government would survive the regime would survive that that election. There was a question of whether Adams would turn over power.

Jonathan Gienapp: Federalists did say if Jefferson was elected, it would be the end of morality.

Robert P. George: It, f- French Revolution. Yeah. Yeah. Exactly right. Yeah. No that’s certainly true. But from my own perspective, and I can only offer reflection- Yeah … from my own perspective here the differences in understand– We can no longer say what Lincoln said in the second inaugural address, even about the dispute over slavery.

Remember what he said? He said they both read from the same… Both sides read from the same Bible. They prayed to the same God. They invoked the same God’s assistance in their struggle. Now he says, he takes a shot at the Confederacy here, and he says, “Now, I don’t know how anybody could pray to a just God to take the bread wrung from anot- the sweat of another man’s brow.

But let us judge not, lest we judge.” They at least had a common vocabulary. That’s gone. So I do think the distance is- … is greater today.