America's Promissory Note

34:28We 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 14th 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.

35:10Mere 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.

35:52But 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.

36:36Still, 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 Tuckville would eventually write about, shaped by our families, our religious communities, and other institutions to restrain us from immorality and injustice.

37:26Throughout 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.

38:12The 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 so-called me generation, captured in that famous phrase, if it feels good, do it.

38:53That's not it. They distinguished liberty from license. Honorable liberties. Not just giving in to 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 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.

39:48Finally, 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, being satisfied, having your desires gratified.

40:45We think of happiness as something, a sort of psychological state that could be induced by a drug, Darvon, 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 19th century, when the great translators of the thinkers of antiquity, of Plato and Aristotle, Cicero, people like that, even as late as the 19th century, Aristotle's term, Iudiamonia, which I think is best translated as flourishing or thriving, was translated by those great 19th century translators as happiness.

41:35Not 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, well, having a smile on your face, a certain kind of pleasant psychological state, getting what you want, having your desires gratified, perhaps 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.

42:21Not 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-around well-being, integral fulfillment, flourishing. Our founders were very, very far from embracing the ideology of what the great, late, alas, Berkeley sociologist Robert Bella would label expressive individualism. Our founders would have rejected that idea more or less wholesale, since their understanding of liberty was for the sake of 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.

43:13The 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.

43:38All 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.

44:16of 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 that's the 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 he skipped past famous notion of sort 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 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 want to 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.

45:24In the 18th 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.

46:08Those 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 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.

46:44In 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 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 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.

47:43The 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?

48:29What 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.

49:05Republicanism, 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.

49:42He is absolutely right that they assume 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 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.

50:21As Noah Webster put it in 1787, 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 1776, James Harrington, the great 17th 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.

51:05If 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 O 'Brien, the Pennsylvania anti-federalist, explained, a republican or free Every 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.

51:45And Professor George mentioned some of the reasons of 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.

52:18But 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 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 and sort of 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 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.

53:17These were ways to consolidate wealth over time. By 1798, every single state in the United States had reformed inheritance practices in some fashion, and everything, any 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 primogenitor and entail the best of all agrarian laws.

54:02They 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 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?

54:42Were they right to believe that virtuous ordered liberty was threatened by material excess inequality and exploitation that unfettered profits seeking compromise 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 sort of 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?

55:19Does it compliment 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.

56:05Now, they certainly believed that all people were equal from a political sense in terms 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 was merit, and the people in a Republican scheme would naturally defer to those who were best suited to rule.

56:54But it could certainly be argued that is not what happened. That's certainly a great many founding 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.

57:32They sought economic opportunity and true political equality as they understood it. And 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.

58:16that 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 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 clash 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.

58:59The Federalists enacted the Sedition Act of 1798 entirely 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 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.

59:37There'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 Anteboam America.

1:00:21In 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, well, 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.

1:00:55Thank you.

1:01:01Thank you, Jonathan. That was just a wonderful commentary and all the questions you raised are valuable and important ones. Some of them I have not given very much thought to and I really should and I am especially grateful for those. To go back to what I take to be your very first point on the concept of the centrality of the idea of non-domination to the founder's understanding of liberty. You're probably familiar with the work of my colleague Philip Pettit. Of course. 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.

1:01:39And 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 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 worry sometimes about the tensions between liberty and democracy, 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 freedom, in their understanding, those are pretty much the same thing.

1:02:40At least self-government is a very important dimension of freedom properly understood. So absolutely right on that. Inequality, inequality of wealth. Well, I can't myself think, but I'm not an historian, so you'll know better. I can't myself think of A-list founders who make a very big deal out of the threats to liberty. or to virtue of gross inequalities of wealth. 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.

1:03:40So 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 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.

1:04:31So when he was thinking of archetypal, improper, or even wicked projects, this forced economic equality idea, abolition of debt, paper money, is precisely what comes to his mind. So I infer from that, and again, with the historical record will be whatever it is, I infer from that, 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 going to 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.

1:05:35I 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 what we would call social mobility to Republican government when he would tell 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.

1:06:33And 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 guess because I think it would have been impossible for them or anybody to imagine our current situation.

1:07:33You remind me of the final, that closing question that was an important one too. Early debate over liberty and licentiousness. Yes, exactly right. Okay, bingo. Yeah, touche. 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 seemed like they were polls apart. But there was a much deeper sharing I think today, then between them objectively than what we have today.

1:08:17Now 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 it was a threat to Republican government. There was a question about whether the government would survive, the regime would survive that election. There was a question of whether Adams would turn over power. Federalists did say if Jefferson was elected, it would be the end of morality. The French Revolution. Yeah, exactly right. Yeah, no, that's certainly true. But from my own perspective, I can only offer a reflection from my own perspective here.

1:08:56the differences in understanding. 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 adjust God to take the bread wrung from 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 greater today.

1:09:43This has been a special presentation from Stanford Legal. I'm Pam Carlin. See you next time.