Scores of textbooks attest that John Locke is the most important intellectual influence on America’s Founding. No other first-tier philosopher can provide a moral and theoretical justification for the United States, its traditional culture, and its form of government. Even the skeptics who question Locke being the only influence concede he was the most significant. The practical problem is that modern experts are confused about what Locke actually thought.
A seemingly esoteric academic debate bursts forth in the Book Review of the Sunday New York Times that ought to turn us to the most significant political books of our times. The war between the West and East Coast Straussians, academics (and political players such as Bill Kristol) who have been influenced by the political philosopher Leo Strauss, involves no mere battle of the books but bears political consequences as well. His books and their interpretation and application are required reading for their wisdom about free and civilized societies. Strauss’s work encompasses grand themes of the West, including ancients and moderns, reason and revelation, natural right and history, and philosophy and poetry (in its root sense of creation). But in all this was saving the West Strauss’s intention? Was he instead a Machiavellian? A Nietzschean?[i]
It is frequently alleged or assumed that a tension exists between natural-law theory and constitutional originalism. The tension is undeniable if originalism is a naked form of democratic positivism—that, e.g., law is simply the expressed will of the sovereign, and the sovereign people have expressed their supreme will through the written Constitution. In such a case, the tension may even represent a contradiction. Originalism, thus understood, would indicate simple obedience to the Constitution’s text, as understood by its authors, while natural “law” would encourage judicial entrepreneurship: to go beyond, outside, or even against that text, in the name of some law that is allegedly prior or higher.
Commentators have missed the most significant element of Sam Tanenhaus’s controversial essay “Original Sin: Why the GOP is and will continue to be the party of white people.” Unfortunately both Tanenhaus and his critics have missed the major point about John C. Calhoun—Tanenhaus by overstating his influence on the right and him and his critics by missing Calhoun’s influence on our political understanding generally.
Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution. He focused far less on specific legal issues and more on the enduring love of country “we the people” give it. He described how the founding documents still speak to us today, in particular those lovingly displayed at the National Archives, the site of the public interview conducted by Yale law school professor Akhil Amar.
The coverage in the Washington Post and New York Times emphasized different aspects of the conversation. The Times probed his views of religious diversity in America and on the Court.
The Post had a more interesting albeit incorrect take, that Thomas had admitted a flaw in the Constitution’s treatment of slavery and race, as though this was news. Thomas allowed that blacks were not perfectly part of “we the people.” Might this flaw in the Constitution confirm the hypocrisy of the “we hold these truths” of the Declaration? Moreover, the alleged admission might clash with Thomas’s opposition to race-preference policies. Might not then his original understanding approach to jurisprudence be fatally compromised? After all, following Justice Thurgood Marshall, why not begin celebrating the Constitution following the passage of the Reconstruction Amendments?
John Adams reconciliation of natural right with popular consent is the task of constitutional politics.
Timothy Sandefur seems to let his dislike for John Adams get in the way of his analysis. Sandefur thinks that the issue is “the transition from the common law principle of ‘toleration’ to the natural-rights principle of religious liberty.” More generally, he suggests the issue is the transition from the idea that law creates rights to the idea that men, by nature, have rights. That is not the issue here. Adams had robust ideas of individual rights, including the rights of conscience, from the time he was a young man, as Brad Thompson has demonstrated in his John Adams and the Spirit of Liberty. That’s why, as Sandefur notes, in one of the letters to which he links, Adams said that the effort to secure the rights of conscience in Virginia were “worth all the blood and treasure which has been or will be spent in this war.” It is also why he refused to endorse Massachusetts’s religious establishment. Many historians have mistakenly attributed the establishment, in Article III, of the Massachusetts’s Constitution’s Declaration of Rights, to Adams. Sandefur accepts the correction in the narrow sense, but does not consider what that means for our understanding of Adams.