Of Rights, Government, and the Futility of Sources

Or, on Crenshaw v. Mattson

Ben Crenshaw has written two excellent pieces for American Reformer. The first is a thorough defense of the National Conservatism Statement of Principles against recent critics for which Crenshaw mustered a host of late eighteenth-century American sources. The second, shorter, punchier essay is a response to Brian Mattson who took issue with Crenshaw’s reading of Hamilton, explanation of the relationship between natural and civil rights, and just about everything else.  

Crenshaw is more patient and gentle than myself. This is not the first time Mattson has accused proponents of Christian nationalism of misappropriating historic texts only to be proven sloppy and wrong in his own reading of the same texts.

Anyway, Crenshaw has already adequately defended his own position, but the exchange offers opportunity for further instruction contra the sophomoric myths proliferated by the libertarian right or whatever Mattson (or Doc Sandlin) calls himself.

Mattson denies any modification, any effect on natural liberty, natural rights, et cetera due to man’s participation in society. He calls it a “recipe for unbridled Statism” which has no discernable limit if civil law does anything more (or less) than secure natural rights in unaltered form. Moreover, it is apparently “statist,” evidence of an “authoritarian strain,” to suggest that man’s natural liberties be restrained for the common good or that, indeed, government itself is predicated on the common good.

In other words, Mattson wants to have his cake and eat it too. He wants the freedom of the state of nature with the protections of the state of society and government. He wrongly thinks a government limited in its charge with protecting individual natural rights is safe, and conversely that a government purposed for the common good of all is dangerous. Mattson also thinks a so-called “pre-political” existence, or the state of nature, and a political life, or the state of society and government, can be easily bifurcated.

Because Crenshaw and the rest of us at American Reformer violate these libertarian, ahistorical sentimentalities, we evidence a disinterest in reformation, says Mattson. We are rather “little revolutionaries,” he surmises with his characteristic condescension.

Rights and the Natural State

Natural rights cannot remain unaltered upon entering society else no relations would be possible, no harmonious conversation. For in a state of nature, every man answers to none but God alone and exists in total freedom under the natural law. Even practical, conventional restrictions would be misplaced.

But, of course, this theory is suspect from the start anyway because it lacks an adequate account of man qua man. As I’ve written before, the state of nature inquiry is useful for the discussion of authority and governmental models. It is not useful or reliable for the construction of a fully orbed political outlook since, again, it lacks an adequate theory of the interaction between so-called natural rights and social relations, inserting between the two a supposedly natural and unavoidable contestation. Samuel Pufendorf makes clear in his seminal Law of Nature and Nations that the fanciful assumptions required to paint a strict state of nature picture are, indeed, ridiculous. Such a detached existence has never been known by man.

In other words, strict or juvenile state of nature theory assumes man was made for, or at least is plausibly comfortable in, isolation, even in familial isolation, and further that society is an outgrowth of convenience—usually material gain and physical safety—rather than of man’s created nature and his God-given mandate.

When “state of nature” was used, say, by Vermont in their first constitution, it referred not to the dissolution of society but to the creation of a new government.

We find similar notions in Emer de Vattel, a documented influence on eighteenth-century American lawyers and theorists. Vattel’s telling goes something like this: men are born with “perfect liberty” according to their nature and constrained at that point only by the natural law; they can be deprived of this liberty only with their consent, which is given upon entering society with others; thenceforth, the individual cannot enjoy natural liberties fully or perfectly because they have at least been partially surrendered to the sovereign.

What Vattel then emphasizes is that even in a state of society, individuals are still subject to the natural law (as are states). It is natural right that arises from obligation to the natural law, not the other way around. This is important because if this formula was reversed then obligation to the natural law and obligation thereto would be diminished to the same extent that “perfect liberty” of natural rights was socially constrained. In fact, natural law never ceases to govern even if men socially constrain their liberty out of convenience and mutual compact—that same natural liberty is always and every governed by the natural law in whatever state man finds himself.

In any case, that’s Vattel’s argument which coincides with Pufendorf’s treatment as well as Blackstone’s. This is all background source material that enables us to enter the milieu of the late eighteenth century.

Rights and the Social State

Are natural rights altered upon entrance to society and submission to its government? Simple answer: Yes.

Samuel Adams, in The Rights of Colonists (1772), explains that man’s liberty is “abridged” upon entering society because it is “necessary for the great end of society, the best good of the whole.” (We will revisit that “best good of the whole” uttered by that noted statist, Sam Adams, later below.) This is, of course, a very standard position. We can further explore its contours through James Otis in his own treatise on the Rights of the British Colonies (1764).

Early therein, Otis considers the origin or basis of government (dominion). It is not derived from divine grace, from human force or power, or even from property or compact. Rather, it is founded in the law of God implanted in the nature of man.

“Has [government] any solid foundation? any chief corner stone, but what accident, chance or confusion may lay one moment and destroy the next? I think it has an everlasting foundation in the unchangeable will of GOD, the author of nature, whose laws never vary. The same omniscient, omnipotent, infinitely good and gracious Creator of the universe, who has been pleased to make it necessary that what we call matter should gravitate, for the celestial bodies to roll round their axes, dance their orbits and perform their various revolutions in that beautiful order and concert, which we all admire, has made it equally necessary that from Adam and Eve to these degenerate, days, the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined, as the dew of Heaven and the soft distilling rain is collected by the all enliv’ning [sic] heat of the sun. Government is therefore most evidently founded on the necessities of our nature. It is by no means an arbitrary thing, depending merely on compact or human will for its existence.”

Since man is sociable and must live with others—he would literally die without them—but living with others presents “contests”—not all of which are bad, by the way (see Aquinas, De Regno)—government is necessitated for the direction, order, and regulation of human activity. Men could by compact determine the form of government, but not conjure government dominion or power on the same basis.

Otis’ affirmation of the origin and end of government (see below) did not lead him to reject the idea of individual rights as such.

“Every British subject born on the continent of America, or in any other of the British dominions, is by the law of God, and nature, by the common law, and by act of parliament, (exclusive of all charters from the Crown) entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great-Britain.”

In other words, British subjects indeed possessed natural rights, but they were not so easily severable from other sources wrapped up in society. Stated differently, “The Colonists being men, have a right to be considered as equally entitled to all the rights of nature with the Europeans, and they are not to be restrained, in the exercise of any of these rights, but for the evident good of the whole community.” Otis’ point was the colonists were on equal footing with other British subjects insofar as they had not, “By being or becoming members of society… renounced their natural liberty in any greater degree than other good citizens.” The basic point to be gleaned here is an echo of exactly what Adams said above.

But we can really frustrate Mattson by going beyond, but not at all contradicting, the boilerplate formulation just cited. In a sense, it is superfluous to address “rights” in terms of sequential stages or states as we just have. Zephaniah Swift and Nathaniel Chipman both advanced this point well.

Both authors affirmed the preliminary (classical) insight that man is created sociable and that his “happiness” depends on “connexcion [sic] and union with fellow creatures.” (Swift, System of the Laws of the State of Connecticut (1795)). Mutual help and protection are supplied by this union, as well as cooperation in the pursuit of higher ends. Atomized individualism is untenable from the start. There is no hypothetical, prehistoric Rousseau-style isolation.

What does this mean for “rights”? Swift was generally dismissive of “political writers” who painted the sequential stages picture, whereby the exit of a state of nature and entrance into a state of society sacrificed in part or in full their “natural rights.” A better explanation, said Swift, was one supplied by Chipman wherein man’s anthropology was considered holistically.

 In his Sketches of Principles of Government (1833), Chipman observed that,

“It appears… that there is a closer coincidence between those rights which have been denominated natural, civil, and political, than writers on law and government have generally been disposed to allow… That man, on entering into civil society sacrifices a part of his natural liberty, has been very generally asserted, or taken for granted… This notion of sacrifice must have been adopted from a very indefinite and, indeed, very absurd notion of natural liberty…”

In other words, if man is naturally sociable, if society arises necessarily from his instincts and needs, then he is bound for society and the law of nature can indicate no scenario wherein man exists unsocially and, therefore, no scenario wherein he enjoys non-social rights. (Recall too what Vattel said above about rights arising from obligations and the perpetuity of the natural law in all “states” of man.) Man’s rights are always conditioned by his nature to the extent that “man, sociable by the laws of his nature, has no right to pursue his own interest or happiness, to the exclusion of that of his fellow men,” because of “reciprocal relations of social beings.” (We will return to this point momentarily.)

As Blackstone himself put it, “man was formed for society; and, as is demonstrated by the writers on this subject [citing Samuel Pufendorf], is neither capable of living alone, nor indeed has the courage to do it.” Indeed, he found the state of nature idea of the “pre-political” slightly ridiculous:

“Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society.”

And family is the “most universal relation in nature,” built into the very constitution of mankind. In other words, there is no pre-political, pre-societal existence experienced by anyone. Were it otherwise, man would be utterly miserable; God saw fit for him to be happy, secure, and bountiful. A “state of nature” can only properly refer to periods of social life when governmental form is in flux or dissolved (see Dan Foster’s Short Essay on Civil Government (1774)), not a state of isolation. For man is born gregarious. “Man banished from society is a miserable, melancholy being,” wrote Swift.

Instead of mustering more examples to this end, we will quote at length a single inarguably authoritative one.

James Wilson in his Lectures on Law (Chapter VII) echoed these same sentiments.

“It is not fit that man should be alone, said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments…

Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion.

Their conclusion is that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species…

But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience.”

To summarize, yes, man’s natural rights are not only modified, if you like, by entrance into society, they are always conditioned by his sociable nature. Why, indeed, would man possess rights irrespective or ignorant of his natural and best desires, instincts, and fulfillment? This is not to deny the individual or swallow him up in the amalgam of “humanity,” but rather to be cognizant of his true nature when considering his proper habitat and conversation.

The Common Good

What about the common good, that sinister notion that terrorizes right-liberals everywhere? Maybe Mattson is skeptical of the notion of the common good but the founding generation wasn’t. I’ve written about this at length in these pages before, in an essay also occasioned by liberal hysteria on the same topic. We can sample some of the data again.

Anti-Federalists like Brutus (Letter IV) thought that “The object of every free government is the public good, and all lesser interests yield to it.” So too did Federalists like John Adams argue that the fate of republics is dependent on the subjugation of private interests to public interests:

“he who acts on such principles, and is governed by such affections, as sever him from the common good and publick interest, works, in reality, towards his own misery: while he, on the other hand, who operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth, and at the same time, his own felicity.”

One might ask whether Adams meant this only in some voluntary fashion. Consider the constitution he drafted for his beloved Massachusetts (even though Crenshaw has already cited this):

“Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men; Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it.”

The establishment of government is for the common good and the right of alteration to the same is derived from the same interest, not private right or preference. In the same document the right of assembly is predicated on the need to “consult upon the common good,” and the legislature is charged with “making new laws, as the common good may require.” Recall that the first grievance in the Declaration of Independence was the colonial inability to enact legislation for the same purpose. So too does Adams’ preamble to the Massachusetts Constitution make clear that the point of forming a “constitution of government” is to “provide for an equitable mode of making laws” for the same end.

Another Federalist, James Wilson, was perhaps more forceful than Adams. Little exegesis is required here: Wilson in November 1787 commended the federal republican model proposed at the convention, he appealed to a more basic general principle regarding the order and end of government itself:

“the Convention did right in proposing a single confederated Republic. But in proposing it they were necessary led, not only to consider the situation, circumstances, and interests of one, two, or three States, but of the collective body; and as it is essential to society, that the welfare of the whole should be preferred to the accomodation [sic] of a part, they followed the same rule in promoting the national advantages of the Union, in preference to the separate advantages of the States. A principle of candor, as well as duty, led to this conduct; for, as I have said before, no government, either single or confederated, can exist, unless private and individual rights are subservient to the public and general happiness of the nation.”

Returning to Otis, “But let the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi suprema lex esto, is of the law of nature, and part of that grand charter given the human race.”  

Resistance is Futile

We could go on explicating these fundamentals and amassing sources for support. Crenshaw has already done much of that and it is no fault of his that for certain interlocutors that yeoman’s work proves minimally persuasive, perhaps even futile. Most of the reactions are subrational and insistent on ignorance. But most relevant for Mattson and his ilk is their own ideological conditioning. 

At bottom, what Mattson is uncomfortable with is substantive limitations on socio-political action. That is, non-formulaic, prudential, and moral limitations. But this posture, in fact, diminishes—or misses the point entirely—the call for deliberation within a republican structure. The right of assembly being for this very purpose, viz., to discern the common good for a particular political unit, and more generally for the good of the whole which is more than the mere sum of its parts. And even these deliberative conclusions must be confined by a higher law, by the anthropological, metaphysical realities of the created order. The good must be informed by the nature of the things considered, viz., man, family, society.

Hence, the necessity of a religious and moral people. Who else possesses the requisite awareness, the background knowledge, for such leeway?

Mattson does not like this social freedom as it really was conceived. He is not conditioned for communal self-government, as most liberals aren’t. He finds solace rather in unimpeachable, absolute “rights,” which carve out for him a “pre-political” sphere of isolation that can be carried by each of us into society as impenetrable shields against one another.

It may be revolutionary to reject this admittedly predominant yet inhuman and ahistorical position, but it was not always so. Viewed from the proper scope, it is Mattson’s articulation of “rights” and rejection of the “common good” as tyrannical that is revolutionary. And how’s that posture been working out for the “conservatism” of the Freedom Cons variety for the past half century or so?

What determines the reader’s answer to that question is whether they think libertarian rights talk has introduced more or less tyranny against nature and nature’s God. Give me the common gooders, the Nat Cons, the American Reformers all day. I’ll take the founding generation as it really was, its full brilliance, not cherry-picked proof texts made suitable for modern base proclivities and sentiments. Mattson can keep his School House Rock civics and Broadway Hamilton.

Indeed, it is in the older definition of these things, in bygone justifications for government and political action that we find proper limitation on power, not the other way around. To invoke Otis once more, “there is no one act which a government can have a right to make that does not tend to the advancement of the security, tranquility and prosperity of the people.” The good of the whole as the object and impetus for government does not erase the individual nor his nature—its inherent dignity and privileges—and nor does it justify absolutism or tyranny or statism or whatever. It is, in fact, the only sure metric for distinguishing between tyranny and oligarchy on the one hand, and true government on the other.

Mattson says he is tired of engaging with us. If he somehow musters the energy to carry on engaging—and us little revolutionaries always welcome it—then we must ask him to, in the future, please, please do the reading beforehand. 

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Timon Cline

Timon Cline is the Editor in Chief at American Reformer. He is an attorney and a fellow at the Craig Center at Westminster Theological Seminary and the Director of Scholarly Initiatives at the Hale Institute of New Saint Andrews College. His writing has appeared in the American Spectator, Mere Orthodoxy, American Greatness, Areo Magazine, and the American Mind, among others. He writes regularly at Modern Reformation and Conciliar Post.

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