The Curmudgeonly Clerk is a strange fellow. Most of the time, he writes well-researched, well-thought-out arguments. But whenever it comes to libertarianism, he drops that and makes strange and inaccurate statements. He’s got a long post where he says I’m “read[ing] a principle enunciated in 1859 back into the Constitution,” when I say that the Constitution prohibits the government from interfering in private conduct which harms no third person.
First, I have never cited John Stuart Mill, if for no other reason than that I’m not very fond of Mill. Second, while I could come forward—and have, many times—with documentary proof that the founders were, indeed, much closer to modern libertarianism than conservatives like to admit, the Clerk has foreclosed such evidence. He doesn’t want to hear Jefferson or Madison or whoever say (as Jefferson did) that the legitimate acts of government extend only to such acts as are injurious to others, and that things which do not pick your pocket or break your leg are not open for government regulation. He doesn’t want to hear these because they would just be “selective quotations.” The Clerk does not bother provide any selected quotations to back up the proposition that the framers thought of government as a machine for creating a nice, decent, Christian society where we all did what Owen Courreges thinks is decent, but let’s let that pass.
Third, the Clerk says that even if I could provide such quotations, and even if they were convincing, that I “just jettison the views of the founding altogether” whenever I find them not supporting my political views. As an example of this he quotes me saying “But, again, even if the founding generation saw that as acceptable does not make it so.” Once again, we are running into a failure to think in principles, here. I do not quote from the founders because they are gods who must be obeyed in their every word and deed. I quote from them because I believe that on the whole they were the greatest natural rights thinkers ever, and that their enunciation of principle is generally correct. Nevertheless, one must be wilfully ignorant to not see that they often did things which were inconsistent with the principles they themselves espoused. If I were to quote, say, Charles Pinckney defending slavery, that would not make slavery right. Even though Pinckney thought slavery was consistent with the founding philosophy does not make it so. Yet the Clerk would say that I’m just “jettison[ing] the views of the founding” when I say that.
My point is that the framers were right to believe that government is limited by our natural rights, and that our natural rights protect our right to act so long as we harm no other person. This last observation was hardly new or unique to Mill; it is in Locke’s Second Treatise, for instance, where he responds to a conservative who, like Courreges, caricatured liberty as license. Freedom, then, is not what Sir Robert Filmer tells us: “A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws”; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.
And again, liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, “a liberty for every man to do what he lists.” For who could be free, when every other man’s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.
That principle, however, is inconsistent with the notion that government may send armed agents into our private bedrooms to police our conduct, given that that conduct does not harm anyone else. So even if the framers were to say “Well, we believe in what Locke says, but we still think it’s okay to drag a person’s loved one from his arms in the middle of the night,” then obviously they are saying something that is inconsistent, and it is not selective quotation on my part to point that out.
That being said, it is true that the framers, or at least some of them, did say something along those lines at some point or other. The people of Massachusetts, who continued to have an established church long after passage of the First Amendment, for example, were engaged in such hypocrisy. Their argument was that this private conduct did harm someone: it harmed society by undermining its moral basis. That, of course, is the argument that is made by more intelligent conservatives in the debate over Lawrence, as opposed to the argument that the government just has some indefinable presumptive right to control our lives, which is the argument people like Courreges make. Then we have to ask whether private, adult, consensual sexual activity does harm some third person enough to warrant prosecution. As I’ve said, the answer to that is no, but it’s at least the right question, and my point in the earlier post was that the conservatives are asking the wrong question.
I’ve posted way too much on how wrong is the argument that the attenuated moral “harms” to society from private, adult, consensual sexual activity, rise to the level where they can be regulated by the state. If it does, then everything does, and there is no limit to government. I’ll not reiterate that point now. My point is that for the Clerk to say that I “[a]ssume libertarianism; everything else follows,” so clearly mischaracterizes my position that it simply must be an intentional misrepresentation.
It is certainly true that “the harm principle is not just a political program, but a moral position.” It is the moral position adopted by the founders. If the Clerk were to stop dismissing the evidence of that out of hand as “selective quotation,” and pay attention to our founding documents, he would see that fact: all men are created equal. Thus none are the natural rulers of others. They each have their rights to life, liberty, and the freedom of pursuing their happiness. To protect these rights, they create government. That is, indeed, a moral position. Unlike the Clerk, who is too sophisticated to adopt moral positions, the framers were not “inclined to leave certain foundational questions to the will of the people.” This is why Madison characterized the “will of the people” as “wicked” in some cases, for instance when they clamor “for paper money, for an abolition of debts, for an equal division of property,” and so forth. This is why Madison said that there is no maxim in my opinion which is more liable to be misapplied, and which therefore more needs elucidation than the current one that the interest of the majority is the political standard of right and wrong. Taking the word “interest” as synonymous with “Ultimate happiness,” in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense, as referring to immediate augmentation of property and wealth, nothing can be more false. In the latter sense it would be the interest of the majority in every community to despoil & enslave the minority of individuals; and in a federal community to make a similar sacrifice of the minority of the component States. In fact it is only reestablishing under another name and a more specious form, force as the measure of right.
Letter to James Monroe (Oct 5, 1786) in The Complete Madison 45 (Saul Padover ed., 1953) (emphasis added). This is why Jefferson said that the people “are inherently independent of all but moral law.”
Oops, there I go again with my “selective quotations.”
The Clerk may be more “comfortable” with moral subjectivism and legal positivism, but one thing that is crystal clear from any quotation you happen to select is that the framers of the Constitution were not.
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