There are two types of laws: just and unjust. I would agree with St. Augustine that “an unjust law is no law at...
Popular Narratives Left and Right Are Wrong About the American Founding
Critics of the American Founding have launched new salvos in the battle over how we should understand the origins and purpose of America.
Prominent voices from the left, such as the authors of the New York Times’ 1619 Project, sought to reframe the Founding itself by identifying its fundamental character with slavery and racial exploitation. Meanwhile, members of the right, typified by Patrick Deneen and his academic blockbuster Why Liberalism Failed, have cast the American project as deeply flawed because allegedly animated by all the secular and individualistic trappings of liberal modernity.
Progressive critics of the Founding emphasize its radical injustice and under-inclusiveness. They argue that women, African Americans, and Native Americans were out-groups excluded by the Founders. The Declaration of Independence and the U.S. Constitution were constructed by a powerful class of white propertied males who sought to perpetuate their own race, class, and economic interests. The American political order, with its emphasis on the rule of law, individual rights, and separation of powers, is the smoke obscuring our vision from the manipulations of the powerful.
Meanwhile, traditionalists and communitarians criticize the Founding from a different angle. The American Founding, they argue, has failed precisely because it succeeded in its goal of establishing a liberal political order. The march of liberalism has successfully destroyed those nonliberal institutions and values that are the basis of communal and social life. The Founding gave us a range of present-day social and political ills: radical individualism, a culture of narcissism, unhinged corporate greed and environmental degradation, the displacement of people from the bonds of community in neighborhoods, churches, and families, and so on.
Each critique highlights existing pathologies in our political culture, but the inaccuracy of their narratives of the American Founding becomes apparent if we reconsider the Pamphlet Debates of 1765–1776, the decade before American Revolution.
The Pre-Revolution Debates No One Is Talking About
The Pamphlet Debates were animated by essays, tracts, newspaper articles, speeches, sermons, and pamphlets debating the justice of various enactments of Parliament, the nature of the English Constitution, the first principles of politics, and, ultimately, whether the North American colonies should separate from England. It is here, in the light of the Pamphlet Debates, where we see most clearly the underlying principles of American government. Bernard Bailyn says that “the pamphlets are the distinctive literature of the Revolution . . . [which] reveal, more clearly than any other single group of documents, the contemporary meaning of that transforming event.”
Consider James Otis’s The Rights of British Colonies Asserted and Proved, one of the most widely read pamphlets in the opening stage of the debates. Responding to the Stamp Act, Otis countered the idea that Parliament was an unlimited, absolute sovereign, rooting his argument in a natural law theory of morality and first principles.
Otis argued for the existence of an objective moral order accessible to all human beings. He stitched his argument with the golden thread of the natural law tradition, which was well summarized by Paul Sigmund: “There exists in nature and/or human nature a rational order which can provide intelligible value-statements independently of human will, that are universal in application, unchangeable in their ultimate content, and morally obligatory on mankind.”
This moral order provided the ground for the range of precepts of traditional morality as well as the ground for political equality. Therefore, Otis argued, “by the law of nature we are free born, as indeed all men are, white or black.” He then asked, rhetorically, “Are not women born as free as men? Would it not be infamous to assert that the ladies are all slaves by nature?”
For Otis, political equality was as important to a healthy civil society as marriage and family. Consequently, the authority of Parliament was bounded by a higher moral law by which it was required to serve a common good constituted by flourishing families. For this reason, the Stamp Act was an unjust violation of the colonists’ inalienable equal right to property—the essential material of flourishing households—which could not justly be taken without their consent.
Another important pamphlet, Alexander Hamilton’s “The Farmer Refuted,” was written as a critique of the Royalist bishop Samuel Seabury. Hamilton responds to Seabury’s caricature of liberalism as one in which individuals are bound by nothing but their own will, leaving power dynamics as the only natural reality. Hamilton insists, by contrast, that “the deity, from the relations we stand in, to himself and to each other, has constituted an eternal and immutable law, which is indispensibly, obligatory upon all mankind, prior to any human institutions whatever.”
In other words, natural rights are derived from, and find their limits in, the law of nature. No man has “any moral power to deprive another of his life, limbs, property or liberty; nor the least authority to command, or exact obedience from him; except that which arose from the ties of consanguinity.”
This framework simultaneously stands as a rebuke of arbitrary power—whether exercised by kings or masters—without affirming an unmoored individualism that would undermine the natural authority of parents over children or the integrity of the family.
Two Lessons from the Pamphlet Debates
So the pre-Founding Pamphlet Debates contain two lessons for us.
First, the political principles of the American Founding were not wool over the eyes of marginalized groups in order to give power to white males. In fact, their principles marked the beginning of the end of oligarchy and slavery, what Allen C. Guelzo recently called the 1863 Project and Forrest A. Nabors detailed at length in his award-winning book, From Oligarchy to Republicanism.
Second, the principles of liberty and equality did not inaugurate an order of autonomous individualism destructive of families and the environment. Rather, political equality was tethered to a moral order that simultaneously bound governments and people with a range of duties and virtues. The natural law principles of social morality were seen not in tension with, but corroborative of, liberal political principles. This appeal to a binding moral order as the very ground of equal political liberty can be seen across the Pamphlet Debates in the writings of John Dickinson, Alexander Hamilton, Thomas Jefferson, and James Wilson, among many others.
On the one hand, if the Founding is riddled with structural racism, sexism, and the like, then we ought to jettison the Founding and build anew. On the other hand, if conservatives are trying to preserve institutions that must ultimately grow into the statist-individualist dyad we are all too familiar with, then they are engaged in a quixotic project that calls for radical rejection of the Founding.
Clearly then, the way we think about the Founding still matters today for how we see ourselves and the problems we face. Both lines of criticism, from the left and the right, identify serious social and political problems, and they have something to teach us. Yet they both get the fundamental political ideas of the Founding wrong, and at least one reason is because they miss the key role of natural law theory in Founding-era political thought. As Gordon Wood has pointed out, the central claim of the Declaration of Independence, that all men are created equal, is no myth. The reason the Founders did not take themselves to be concocting a Platonic creation myth is that they believed the “laws of nature and of nature’s God” were real and essential to understanding human beings and the universe we inhabit.
If the Founding is not the primary source of our political ills today, as certain left and right narratives argue, then there’s a chance that its animating ideas may instead contain the seeds of civic renewal.
Justin Dyer is professor of political science and director of the Kinder Institute on Constitutional Democracy at the University of Missouri.
Kody W. Cooper is UC Foundation Assistant Professor of Political Science and Public Service at the University of Tennessee at Chattanooga.
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