Election 2020 is a choice between the America of the Founding and an America beset with guilt.
“Too Much of a Unity,” continued
Lessons for Our Current Crisis from the Other Harry Jaffa
We present the second and concluding part of an original essay from Claremont Institute Senior Fellow Glenn Ellmers, author of the forthcoming The Soul of Politics: Harry V. Jaffa and the Fight for America. The book is a pathbreaking study of his teacher, Claremont McKenna Professor Harry V. Jaffa, Claremont’s intellectual godfather. The first part of the essay can be found here.
In addition to his interests in American political thought, Jaffa was a great student of Shakespeare. In a book he wrote on original intent jurisprudence, he addresses the question of whether government can simply declare by fiat that human wants and desires shall be fulfilled through some sort of mystical dispensation. To make his point he quotes a passage from Shakespeare’s Henry IV, Part I:
Glendower. I can call spirits from the vasty deep.
Hotspur. Why, so can I, or so can any man; But will they come when you do call for them?
Jaffa points out that judges or politicians or political parties, “decreeing that the people shall be supplied with cabbages or doctorates, are like Owen Glendower calling spirits from the vasty deep.”
This vignette pokes fun, but in fact raises a very serious issue. A regime that operates on the belief that nutritious cabbages (or healthcare) and prestigious doctorates (or college tuition) can simply be made “free” to all is radically, even diametrically, opposed to the regime envisioned by the Declaration of Independence—which, despite its lofty rhetoric and noble sentiments, is an eminently practical document.
As an expression of what Jefferson called “the American mind” the Declaration does not represent a detailed plan of government, but it is still a fairly concrete statement on the nature, limits, and purposes of political life. In particular, the Declaration is emphatically anti-utopian. To cite only a few examples of its metaphysical and political realism, note the recognition of tyranny as a permanent threat to liberty; the existence of “savages” and “barbarians” as more or less permanent features of the human condition; the need for prudence to weigh risks and rewards; and the contingency of all human endeavors, which may depend for their success on “divine providence.” Notwithstanding these modest appraisals of man’s non-angelic nature, the Declaration is hopeful that humans are capable of rational deliberation and affirms that statesmanship can (at times) secure the conditions of life, liberty, and the pursuit of happiness.
Broadly conceived, these are the doctrines or opinions of what Jefferson described as “American Whigs.” And, notably, the republican government conceived by the founders was intended to be suitable only for American Whigs. This is not such an easy idea to grasp, especially in light of the discussion above, about the American political system inviting constant disputes over the meaning of the Constitution.
One the one hand, most of our great policy controversies have expressed themselves as arguments over the meaning of the regime. But for precisely this reason, they are always bound within a certain conception of what makes free elections and rational debate possible in the first place. Jaffa argues that from Jefferson’s perspective, only those who accepted the principles of the Declaration “could be considered part of the political universe with respect to which majority rule would be possible.”
This means that had a plebiscite on independence been possible in 1776, Whigs would (if they could) have excluded Tories from the vote! What constituted an “American Whig” was accordingly defined by the statement of principles in the Declaration of Independence, most notably by the passage beginning, “We hold these truths to be self-evident.” We may therefore say that from the perspective of the Revolution, a free election can be conducted only among “Whigs”! And the acceptance of the idea of human equality, as that idea was comprehended within “the laws of nature and of nature’s God,” would appear to be the necessary condition par excellence for defining who might participate in a free election, and hence who might be expected peacefully to abide by its results.
This point is essential to understanding properly why elections, by themselves, cannot be regarded as the sufficient guarantee of republican government. Not only can tyranny arise from a majority vote, but the principles that make self-government possible cannot be decided by a poll. Jaffa points out that one cannot “imagine the issue that divided the Americans and the British Crown and parliament being decided by a vote,” because endorsing monarchy at the ballot box would mean repudiating the very idea of elections. Free government is only possible when political differences are “looked upon as arising within the boundaries of these common principles,” expressed in the self-evident truths of the laws of nature.
Republican government depends on what Jaffa called the metaphysical freedom of the human mind—which includes the moral deliberation by which fellow citizens join in the partnership for the good life discussed above. Such civic friendship in the pursuit of happiness “implies a freedom in the mind to apprehend truth, and a necessity in nature, a necessity external to the mind, that determines what the truth is.”
In the last analysis, freedom is the ability to be determined by the truth. A free society is a fellowship—a unanimity, or oneness of mind—of those who recognize these self-evident truths as the basis of their social and political relationship, within which they can resolve their differences peacefully by debate, discussion, and free elections. Jefferson’s inaugural testifies to the existence of this unanimity sufficient to validate this peaceful process. It also testifies to the continuing necessity for such unanimity if the process is to continue…. Jefferson had said that there was no threat to safety from “error of opinion… where reason is left free to combat it” and that truth had nothing to fear “unless by human interposition disarmed of her natural weapons.” But what precisely are the conditions in which reason is “free”? And when is truth “disarmed”? Are not political campaigns for electoral supremacy precisely the times when the still small voice of reason is least heard, when passion and demagoguery obscure reason? (emphasis added)
So what happens when this unanimity no longer holds, when the small voice of reason is overwhelmed by demagoguery and ideology? Such an eventuality is hardly inconceivable. The founders were quite realistic about human nature, and mindful that the realm of statesmanship contains no guarantees. Such inquiries would bring us out of the realm of action and into the theory. Turning away, then, from any further practical considerations, let me conclude with a few points about how the founders conceived of the social contract—merely for the sake of philosophical edification about the founders’ understanding. Jaffa was fond of quoting this pithy statement from the Massachusetts Bill of Rights, adopted in 1780:
The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.
Reflecting on this, one might wonder (entirely on the level of idle speculation, of course) whether the United States has ceased to be “one people.” This hypothetical question would, of course, be a complicated and delicate one. It could plausibly be suggested that those who still adhere to the original compact remain one people, while those who are no longer what Jefferson called “American Whigs”—that is, those who no longer hold to the principles of the Declaration—have by word and deed left the compact, and believe in an entirely different set of principles. This would mean that there are two peoples, and two regimes, occupying the same country. Theoretically, there is no bar to this conclusion, however unprecedented and messy it may seem as a practical matter. This second regime might be characterized—hypothetically, of course—by such elements as show trials; public confessions of ideological deviation; the rewriting of history; and the subordination of facts, logic, and nature to the whim of the Party. I leave it to the reader to provide a name for such a regime. It is not the America of Madison or Lincoln.
What would the relationship be between these two groups who live in the same nation, but belong to different regimes (assuming for the sake of argument that those who left the original compact constitute a single group)? Those who still consider themselves part of the original regime, and thus bound by and to the principles of the founding, would retain the obligations of citizenship and friendship they owe to each other. But it would seem that a state of nature would subsist between them and those who have left the original compact and now embrace new (and perhaps antithetical) regime principles. What would that mean?
In social compact theory, a state of nature exists between independent and sovereign peoples, or nations. (Geographical considerations really have no bearing on these considerations, strictly speaking.) By the principles of natural justice sovereign individuals or nations in the state of nature have only the obligation not to harm each other without cause. The primary obligation of any people who have formed themselves into a compact is to preserve and protect their own safety and happiness. They have no right to injure anyone outside their compact without cause. Yet they may also do whatever is necessary to preserve and protect themselves. Self-preservation (aiming ultimately at happiness and the good life) is after all the point of forming the compact in the first place. War should be avoided, of course, because of the unjust suffering and unpredictable destruction it causes (for both victor and defeated); but it is justified whenever the members of the compact deem it necessary to their safety and security.
Again, this seems clear enough in theory, though there would be tremendous complications if the two peoples, or two nations, were intermingled—not merely in the same states, but even within the same communities, and perhaps households. Of course, this was also the situation to some degree with pro-independence Patriots and anti-independence Loyalists during the American Revolution. (Most of the Loyalists relocated by choice or coercion to Canada.) In any event, pursuing a resolution to such practical difficulties is far beyond the scope of this essay.
* * *
At this point, some readers may wonder whether the notion of two separate regimes raises the question of secession.
This essay is mainly an academic investigation into American political thought and history. Let me emphasize, then, that the following brief speculations are even more strictly theoretical, not practical. Moreover, this question is especially speculative if only because a return to the kind of robust federalism intended by the original Constitution would be such a drastic change from our current circumstances that reinstituting the states’ police powers and reviving local autonomy would for all intents and purposes look as if every state had seceded from the Union.
But for the sake of philosophical completeness, let me pursue the question of forcible secession—which means an involuntary breakup of the Union. A voluntary separation agreed to by all the states (going beyond a return to vigorous federalism) and carried out with the consent of the people of each state, would not be secession strictly speaking, but simply an exercise by the people of their sovereign authority to remake the government.
If we were to presume, however, that the current administration in Washington (and likely any future administration)—along with its supporters among sympathetic states—were to resist such a voluntary breakup, then any attempt to leave the Union would indeed amount to unconstitutional secession. There is no getting around this point that such action would contravene the Constitution and thus undermine any claim such states might make to be upholding the founders’ principles. With that stipulation, however, there are a few additional points to be noted.
Let me state, once again, that it is exceedingly challenging to discuss this topic at all, because of the association of secession with slavery and the old Confederacy. Moreover, I think it necessary to confront—extremely briefly—at least one of the several myths which contaminate discussion of the Civil War on both the Left and Right. To the degree that several states today simply wish to detach themselves from the intrusive overreach of the central government, it must be emphasized this was certainly not the motivation of the slave states in 1860, which emphatically did not want merely to be “left alone.” On the contrary, it was their demand for an unprecedented expansion of national power—in the form of a federal slave code for the territories—which alienated the South from the rest of the nation, and caused the rupture.
In April of 1860, well before the election of the Republican Abraham Lincoln, the southern delegates at the Democratic convention in Charleston, South Carolina walked out when the party would not accede to their demands for new pro-slavery laws at the federal level. Both national parties rejected the South’s demand to repudiate the principles of the Declaration of Independence and commit the entire country to a more explicit pro-slavery agenda. It was against this background that the South, in 1860-61, attempted forcibly to break up the Union by rejecting the results of the election in which Lincoln became president.
The myriad complexities of the Civil War are well beyond the scope of this essay, but it is noteworthy that the intransigent demands of the slave states (as well as the unique situation of the federal territories, which has no contemporary parallel) prevented any real discussion of voluntary separation on mutually agreeable terms. To name only one point, the southern states would not even consider Lincoln’s offers of compensated emancipation to end slavery—in part because several leading southern intellectuals no longer regarded slavery as a necessary evil, but had come to describe it as a “positive good,” to be further secured and enlarged with new federal guarantees.
While any attempt at forcible secession today would still lack a basis in the Constitution, it is important to appreciate this distinction. To offer a Lincolnesque illustration: When you see a man standing by a riverbank with his hand on a woman’s coat, it makes a great deal of difference whether he is pulling her out of the river, or pushing her in. So too, there is a great deal of difference between secession over the demand for a federal slave code, and secession over the rejection of, say, a federal speech code violating the First Amendment. (Of course, in many ways—ranging from campaign finance laws, to the politicizing of the tax code, to the raft of anti-discrimination statutes—the erosion of the First Amendment is already well along.)
There is, finally, one more argument which could be made today, and which the southern states pointedly did not invoke. That is the natural—as opposed to constitutional—right to self-preservation, which includes the right to revolution. To make such a claim would have immediately exposed the slaveowners to the charge that their slaves had an equal right by nature to revolt on behalf of their self-preservation. As Jaffa points out. “Slaves are by nature the enemies of those who enslave them. This is why the introduction of slavery is against the interest of the slaveholders themselves.” For this reason, he elaborates, the South was forced to make a specious claim to “secession as a constitutional right. They went to great lengths to avoid appealing to a right whose exercise would obviously apply far more to their slaves than to themselves.”
Arguments for seceding from the central authority today would certainly be made on the very opposite grounds: to escape despotism, rather than extend it. Of course—hypocrisy being the common coin of all political disputes—one could expect any number of inversions of language and logic in response. The 19th-century slave power defended secession on the basis of the “liberty” to own other human beings. Similarly, given our current political divisions, those wanting to leave—even to restore the principle of equal, natural rights—would certainly be accused by their opponents of “racism.” This charge, it hardly needs to be said, is an Orwellian lie. The word “racism” today is a political weapon, and generally means the opposite of what it meant to Jefferson, Madison, and Lincoln—who understood republican government to demand equality before the law. The propagandistic charge of “racist” today is deployed on behalf of racial preferences, anti-white “diversity training,” segregation on college campuses and elsewhere, and a Stalinist re-writing of American history. I leave aside the concomitant rejection of consent and representative government that underlies our administrative-state despotism, typically defended by “anti-racists.”
Beyond the Constitution—and more fundamental than the specific social compact that formed the American people—is the most basic of all rights. No less a Union man than Lincoln observed: “Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better.” Jaffa elaborates on his hero’s remarks with this statement:
Throughout American history—at least since July 4, 1776—it has been conceded that all people everywhere have the right to resist intolerable oppression. This is a right which belongs not only to the people of the state, but of any part of a state. Indeed, it belongs to each individual, although it is a right which is seldom valuable to individuals, since they seldom have the power to make resistance effective. But this right—the right of revolution— is a right paramount to the Constitution, and to all positive laws whatever. It is a natural right….
At this point, I will end my purely abstract speculations. Even as a theoretical matter, this most radical step would take us into terra incognita. (“It is a quality of revolutions not to go by old lines, or old laws; but to break up both, and make new ones,” Lincoln said.) I mention only that even at the utmost extremity, prudence retains—as always—its sovereign authority. If such a course were to be contemplated, it would be necessary to determine if the present situation is intolerable, whether there is a plausible alternative (that is, a sensible and fairly concrete plan for something better which would justify extreme action), and if there is a possible path to achieving that alternative. This latter condition need only be possible, not likely—for there are times when honor and justice may command great enterprises, even at immense risk, and even if the outcome depends to some degree on chance or providence.
Practicing the prudence I preach, I conclude by echoing Federalist 43: the “flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself.”