The Enlightenment And The Constitution

Among a number of depressing discoveries I made during two-plus decades of university teaching was the fact that most of my students had never heard of the Enlightenment.

I know, I know–that was just one of many deficiencies students brought to a class on law and public policy…so why do I consider that particular deficit to be especially depressing? Because–as I have repeatedly explained on this site– Enlightenment philosophy caused a significant shift in human understanding. Its philosophers introduced what has become the prevalent–although certainly not universal–worldview of modern  civilization. The Enlightenment introduced western civilizations to science and empirical inquiry, posited the existence of human rights and challenged/toppled belief in the divine right of kings, among many other things.

Perhaps the most concerning aspect of MAGA Republicanism is its wholesale rejection of that Enlightenment worldview. There are several theories about the appeal of MAGA partisanship (I can’t dignify MAGA by suggesting it’s a philosophy–it isn’t. It’s a visceral, tribal scream…)–certainly, racism is a huge factor. But so is a primal fear of modernity, a rejection of the secular civilization that grew out of the Enlightenment.

As I’ve recently written, I tend to see much of today’s political turmoil as a fight between Puritan fundamentalism and Enlightenment modernity, so I was interested in a New York Times book review by Emily Bazelon some months back titled “Speaking Truth to Both Right and Left.” The review focused on two books, one of which–Jonathan Rauch’s Constitution of Knowledge— I’d read. (The other, by George Packer, remains on my “eventual” list…)

Packer and Rauch are here to defend the liberalism of the Enlightenment — equality and scientific rationality in an unapologetically Western-tradition sense. They see this belief system as the country’s great and unifying strength, and they’re worried about its future.

I worry alongside them. A lot.

Packer expresses his deep fear that Americans have lost the “art” of self-government.

He means, with credit to Alexis de Tocqueville, “not just rights, laws and institutions, but what free people do together, the habits and skills that enable us to run our own affairs.” Self-government depends on trust, “which we’ve lost.”

The review notes that Packer’s lens is economic.

He ties his thesis about Americans’ loss of the art of self-government to the inequality that he has covered extensively and intimately in his career as a journalist. “If I had to put it in a single sentence,” he writes, “I would say: Inequality undermined the common faith that Americans need to create a successful multi-everything democracy.” He recognizes that “racism is in our marrow, and enough Americans either celebrate or tolerate this evil that it came within a whisker of gaining a lasting hold on power.” (He’s talking about Trump, though he would recognize that racism has in fact gained such a hold in other ways and times.)

Bazelon outlines what she calls Packer’s “biting” critique of the Left, and ties it to abandonment of the Enlightenment framework and the Left’s focus on subjectivity and “psychological trauma caused by speech and texts.”

Rauch addresses the Enlightenment basis of America’s Constitution more directly.

Rauch’s subject, in “The Constitution of Knowledge,” is the building of human understanding. He takes us on a historical tour of how a range of thinkers (Socrates, Hobbes, Rousseau, Montaigne, Locke, Mill, Hume, Popper) sought truth, came to embrace uncertainty, learned to test hypotheses and created scientific communities. He is astute about the institutional support and gatekeeping that sustains “the reality-based community of science and journalism.” Social media platforms are bad at this because their profits are built on stoking users’ existing rage and spreading lies faster than truth. This is not a new critique, but it’s nice to see Rauch weave it into his larger project.

Rauch describes the danger posed by Rightwing trolling and disinformation, but–like Packer–he also recognizes and criticizes the excesses of the left.

He blames it for cancel culture, defined as firing or ostracizing people for stray comments or social-media posts (some awful, some awkward, some expressing mainstream-until-yesterday views). He writes at helpful length about the difference between criticizing and canceling. “Criticism seeks to engage in conversations and identify error; canceling seeks to stigmatize conversations and punish the errant. Criticism cares whether statements are true; canceling cares about their social effects.”

Bazelon ended her review with a question I find increasingly pertinent: why do so many of today’s Americans reject the Enlightenment values of individual liberty and civic equality? She wanted both Rauch and Packer to “consider why the Enlightenment figures and values they love don’t speak to everyone.”

it’s a very important question.

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Twenty-First Century Puritans

Being out on the ocean prompts reflection… 

When I taught Law and Public Policy, I approached the material through a constitutional lens, because I was–and remain–convinced that a basic understanding of American history and the philosophy that shaped what I call “the American Idea” is critically important for anyone hoping to understand today’s politics.

The American Constitution was a product of the 18th Century cultural, intellectual and philosophical movement known as the Enlightenment. Most of us know that the Enlightenment gave us science, empirical inquiry, and the “natural rights” and “social contract” theories of government, but what is less appreciated is that the Enlightenment also changed the way people today understand and define human rights and individual liberty.

We are taught in school that the Puritans and Pilgrims who settled the New World came to America for religious liberty; what we aren’t generally taught is how they defined liberty.

Puritans saw liberty pretty much the same way current politicians like Mike Pence and Mike Johnson do– as “freedom to do the right thing” as they definied it. That meant their own freedom to worship and obey the right God in the true church, and it included their right to use the power of government to ensure that their neighbors did likewise.

The Founders who crafted the American constitution some 150 years later were products of an intervening paradigm change brought about by the Enlightenment and its dramatically different definition of liberty.

America’s constitutional system is based on the Enlightenment concept of liberty, not the Puritan version. It’s an approach we sometimes call “negative liberty.” The Founders believed that our fundamental rights are not given to us by government (nor necessarily “God given” either). Most of them–especially the Deists– believed that rights are “natural,” meaning that we are entitled to certain rights simply by virtue of being human (thus the term “human rights”) and that government has an obligation to respect and protect those inborn, inalienable rights.

That philosophical construct is why–contrary to popular belief–the Bill of Rights does not grant us rights—it protects the rights to which we are entitled by virtue of being human, and it protects them against infringement by an overzealous government. As I used to tell my students, the American Bill of Rights is essentially a list of things that government is forbidden to do. For example, the state cannot dictate our religious or political beliefs, search us without probable cause, or censor our expression—and government is forbidden from doing these things even when popular majorities favor such actions.

Most Americans today live in a post-Enlightenment culture. We accept and value science. We understand liberty to mean our right to live our lives free of government control so long as we are not harming others, and so long as we respect the right of other people to do likewise. But there is a persistent minority that has never accepted an Enlightenment worldview, and that minority currently controls the Republican Party. These contemporary Puritans–who, along with their other religious convictions tend to see Black people and non-Christians as unworthy subordinates– use the word “freedom” in the older, Puritan sense of “freedom to do the right thing” as their reading of their holy book defines “the right thing.” They also  believe it is government’s job to make other citizens do the “right thing” –to impose their version of “Godliness” on the rest of us.

These contemporary Puritans are throwbacks to the early American settlers who defined “liberty” as the imposition of the correct religion on their neighbors. The Enlightenment construct of “live and let live”–the notion that each of us should have the right to believe as we wish, the right to follow our own set of moral imperatives (again, so long as we are not harming the person or property of someone else) was utterly foreign to those original Puritans, and it is evidently equally inconceivable to their philosophical descendants.

(Interestingly, these throwbacks to Puritanism never seem to doubt that they know precisely what God wants–that, as a friend once put it, God hates the same people they do. But that’s a phenomenon for a different post.)

If you had told me ten years ago that American government would once again be under the thumb of Puritans, I wouldn’t have believed it. But here we are–with a Speaker of the House of Representatives who is a full-blown Puritan throwback and a Republican Party that has rejected the Enlightenment.

When I have computer problems, I reboot. That usually returns my laptop to working order. Can we reboot America?

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What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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Back To Basics

There is one basic question that every society must answer: what is government for? What is its purpose and what are its proper limits?

Whether you want to call America’s current, vicious civic battles a “culture war,” or an assault by theocrats on the rest of us, one thing is clear: those waging that battle–the “warriors” who are intent upon using the power of the state to impose their beliefs on everyone else–have utterly rejected the libertarian premise upon which American government rests.

Libertarian, in this usage, refers to the nature of liberty, not today’s political ideology.

There is great wisdom in what has been dubbed the “libertarian principle.” Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of another, and so long as they were willing to accord an equal liberty to their fellow citizens.

Government was tasked with protecting that liberty.

The libertarian principle undergirds the U.S. Constitution and Bill of Rights, and its operation has been persuasive world-wide. (If we really wanted to make America great again, we would revisit and revive our allegiance to it.)

Those who crafted America’s Bill of Rights believed that individuals are entitled to basic human rights simply by virtue of being human–and they understood human rights to require respect for individual moral autonomy. The term “limited government” is recognition of that principle–“limited” isn’t a description of size, it is a limit on authority, a limit on the power of the state to invade and disregard the individual’s right to self-determination.

Handing government the power to prescribe citizens’ moral “dos and don’ts” is the antithesis of genuine liberty.  If those in positions of power and authority can prescribe your life choices, and punish any deviation from officially sanctioned personal conduct, you are a subject, not a citizen–and you definitely are not exercising moral choice.

So what role should government play? What is implied by that libertarian construct?

Allow me to restate it: Individuals should be free to pursue their own ends–free to “do their own thing”–so long as they do not harm the person or property of another, and so long as they are willing to accord an equal liberty to others.

Those caveats are important, and they require both action and restraint by government.

One of the most obvious purposes of government is to prevent some people from harming the person or property of others. What constitutes “harm,” of course, can be a contentious matter: does my use of profanity constitute a harm to society? What about pornography? Books with “anti-social” content? “Wrong” religious beliefs? (Contemporary Republicans insist that teaching accurate history constitutes a harm.)

Then, of course, there is that little matter of government’s responsibility for ensuring civic and legal equality….

As difficult as our arguments about the nature of the “harms” that justify government action continue to be, Americans have really balked at that second “so long as”–the one requiring those of us who insist on our own right to self-government to “accord an equal liberty to others.” Far too many of us prefer something along the lines of “liberty for me but not for thee.”

The problem with a system in which only some people have rights is that a government with the power to deny me my rights today can use that authority to deny you your rights tomorrow. Actually, a government with the power to grant and/or withdraw rights isn’t dealing with”rights” at all–it’s doling out privileges, and privileges can be withdrawn when the political environment changes.

As a wise man once told me, we’re equally free, or no one really is. Poison gas is a great weapon until the wind shifts.

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A New Social Contract

Time Magazine recently ran an interview with a top global economist, who has authored a book about what humans owe each other–in other words, about a new or perhaps renewed social contract. Several of her concerns mirror my own; as readers of this blog are aware, my last book, Living Together, was focused on the same question.

The notion of a social contract was first introduced by John Locke and his formulation became a foundation of American law and culture. The U.S. Constitution was heavily influenced by Enlightenment philosophers like Locke, who rejected the divine right of Kings in favor of a belief in a theorized “contract” in which citizens grant government an exclusive right to the exercise of coercive power in return for an obligation to provide for their safety and welfare–the “law and order” required for civilization. Citizens could revoke government’s authority if government failed in its mission or breached the bounds of the contract.

Most European nations have subsequently adopted social contract theories that are considerably more expansive than the version embraced by most Americans. Those versions interpret government’s obligation to provide “social goods” broadly,  including access to healthcare.

Several years ago, I collaborated with colleagues in  on an article intended to probe America’s limited view of the proper role for government in social welfare, and to demonstrate that the Affordable Care Act–and for that matter, single-payer health insurance–really was consistent with Locke’s view of a social contract. (We noted that a deficit of civic knowledge poses a significant barrier to efforts to revisit social contract theory–revisiting a theory is impossible for those who have never visited that theory in the first place.)

Take the contemporary debate over healthcare reform. This fight cannot be understood without recognizing the continued potency of the country’s foundational assumptions, and especially the continued relevance of social contract theory most directly attributed to John Locke. In this paper, we echo arguments made by historians and legal theorists like Daniel Boorstin and Louis Hartz who noted that Americans who may never have heard of Locke or the Enlightenment, have nevertheless internalized Locke’s philosophy in ways that make social inclusion and extensions of the social safety net particularly difficult. In a very real sense, John Locke doomed more comprehensive healthcare reform, at least in the short term, and made it far more difficult to extend unemployment benefits, increase payments under Temporary Assistance for Needy Families (TANF), or raise the minimum wage. If we are to have any success in changing the long term prospects for these and similar reforms, we will need to go beyond the academic, moral, and fiscal arguments, no matter how persuasive some of us find them, and directly engage the need to update and expand our basic understanding of the social contract.

We were writing during the initial debates over the ACA, which we noted was yet another iteration of America’s deeply embedded conflict between Social Darwinism and the Social Gospel.

No matter how logical or effective, programs requiring extensive government involvement, or that include “mandates” of any sort, trigger an almost visceral reaction in those who tend more to Social Darwinism, a belief that “productive” people’s rights are thereby violated, and that such approaches are contrary to freedom, to “real” Americanism. In other words, at a basic—perhaps unconscious—level, many people believe that government involvement in healthcare, or government intervention via provision of a social safety net, is somehow un-American and therefore must be rejected. It does no good to point out how deeply government is already involved in providing a social safety net through Social Security, or in providing health care in particular (e.g., the Veterans Administration which is the largest integrated health care system in the country serving more than 8.75 million Veterans each year) — the issue is emotional, not factual. The passage of Medicare generated cries of socialism, and the New Deal—even in the midst of the Great Depression—was aggressively opposed. It is the rare social program that hasn’t had to contend with accusations of incipient communism.

Our article explored the reasons for that “emotional” response, and those of you with time and temperament to wade through its scholarship can agree or disagree with our analysis, but I think it is fair to say that the underlying issue has become considerably more salient.

Humans around the globe are faced not just with a pandemic, but with the existential threat posed by climate change.  Individuals are powerless to address those threats. Collective action is required, and government is our mechanism for collective action.

A workable social contract requires government to protect individual autonomy, provide a supportive social infrastructure and take decisive action to protect the common good.

I’m convinced John Locke would agree.

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