What's Happening?

[Michael Stuart Kelly]

No one should venture into the thicket of consent theory, especially as it pertains to the U.S. Constitution and government, without first coming to terms with Lysander Spooner's monograph No Treason: The Constitution of No Authority (1870).

The complete text of this great classic can be found at:

http://oll.libertyfu...=2194&Itemid=27

Here is how Spooner begins:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man...

George,

I read this thing years ago (I came to it though reading Robert Ringer, of all people) and it informed my view of government for a long time. But rather than become a formal anarchist, I became a practical one. I developed a disconsideration for government. I simply did as I pleased along my life irrespective of the law and stayed under the radar (most of the time, anyway).

One thing I did not do back then was openly check Spooner's underlying premise, although a little voice in the back of my mind would manifest itself once in a while over the years saying something didn't add up.

Now I have checked it and found it wanting. I believe it is a mistake to treat the charter documents of a government like a business contract (or even as the charter documents of a business organization). This treats the structure for business to be able to happen at all, other than at the most primitive barter level, as a business transaction itself. There are many ways to express this, treating content as form, etc. But I want to focus on one aspect.

My own premise, which is deriving government from human nature, goes beyond a "contract" view of the charter documents of a government. One aspect of human nature is that we are not given the choice of the family we are born into and a newborn automatically has to submit to the authority of its parents. No one would say that a newborn should be able to choose other parents, because that would not make sense in terms of its mental development. But more importantly, this is the way human beings exist.

Going from this premise, it is only natural that the social organization for human beings reflect that reality. Just as you don't choose the family you are born into, you don't choose the social organization you are born into.

But continuing with human nature, as a child grows up, he can change the authority structure of his family or even get rid of it. This is because his conceptual volition matures and he becomes fit to be autonomous and survive. Thus it is only right that the charter documents reflect this, also. It must be able to be changed.

I also believe there is an implicit premise in Spooner's "contract" formulation that doesn't hold. The premise is that the human race is made up only of adults (ones who have the mental competence to enter a contract), or at least, that children are outside any "contractual" consideration. In practical terms, if children had to wait to grow up before they could choose (i.e., enter a contract for) what legal system they could use to protect their rights, people simply wouldn't get very much done.

But there is something worse. This would make children the chattel of their parents and would extend no protection to their right to life if they have abusive parents who refuse to enter into a "contract" that would ensure them their rights. Without a charter document in place to protect rights, one that governs contracts, it would even be possible for parents to engage in child slave labor and sell their children to child slave owners, at least until the children become of such age that they could enter into contracts themselves.

So human nature it is. From what I have been able to see so far, the idea of making a charter document based on rights, and making it changable through amendment (but not making that process easy), meets the criterion of human nature. It reflects human biological authority of being the authority in place as the starting point, and it allows for volitional changes to it by adults.

Michael

[Peter]

Adam wants a quote showing, "...the main intent of the Founding Father's when they wrote the Constitution." was "To protect individual rights".

OK.

"The main intent of the Founding Father's when they wrote the Constitution was To protect individual rights."

Peter Taylor

[Selene]

Adam wants a quote showing, "...the main intent of the Founding Father's when they wrote the Constitution." was "To protect individual rights".

OK.

"The main intent of the Founding Father's when they wrote the Constitution was To protect individual rights."

Peter Taylor

Childish response Peter:

Therefore, you are refusing to give a non-Randian source that states that:

Quote

"...the main intent of the Founding Father's when they wrote the Constitution." was "To protect individual rights".

I apologize for not making that specific. I know what Ayn wrote.

Why would you be unable to cite a non-Randian source for such an obvious assertion?

If you want to avoid providing a non Randian source, there will be several different conclusions that could be drawn.

Adam

[George H. Smith]

I believe it is a mistake to treat the charter documents of a government like a business contract (or even as the charter documents of a business organization). This treats the structure for business to be able to happen at all, other than at the most primitive barter level, as a business transaction itself.

The Constitution was seen by its proponents as falling within the social contract model; this, after all, is why ratification by "the people" was deemed necessary. A contract (or compact) was regarded as the foundational voluntary agreement whereby certain rights -- or, more precisely, the power to enforce certain rights -- are delegated to a government. This government contract was viewed as the source of legitimate political authority, without which governmental power is usurpation and despotism. (The latter was said to occur when the usurped rights are inalienable rights. This is why Jefferson stressed "unalienable" rights in the Declaration; he needed to show that the British usurpation of rights had gone far enough to justify a violent revolution.)

I frankly don't see your point in drawing a negative comparison to a "business contract." There are similarities, of course, since a "contract" in its broadest sense is a voluntary agreement to which the parties consent because they deem such agreement to be in their mutual self-interest. But social contract theorists regarded the government contract as much more fundamental than a normal business contract.

Why?

First, because the government contract establishes the moral and juridical authority of political sovereignty, which is something that no mere business contract, in the ordinary sense of this term, can possibly do.

Second, because in the Lockean tradition on which the Constitution was based, a "social contract" precedes the government contract, and this social contract (which requires unanimous consent) establishes the principle of majority rule when the people decide on the form of government they wish to establish. And this majority rule principle has no analogue to ordinary business contracts.

There are other significant differences as well, but the important point to remember is that the contract model was seen as a method of political reasoning that remained loyal to the principle of equal and reciprocal rights, according to which no government can claim rights over and above the rights of individuals. Rand placed herself firmly in this tradition when she declared that all rights are individual rights, and she correctly observed that, according to this tradition, government is the agent (or servant) of citizens, not their master.

I will continue this discussion later. I want to break it into separate parts, so as not to make any one part excessively long.

Ghs

[Michael Stuart Kelly]

There are other significant differences as well, but the important point to remember is that the contract model was seen as a method of political reasoning that remained loyal to the principle of equal and reciprocal rights, according to which no government can claim rights over and above the rights of individuals.

George,

This is the crux of the matter, and one on which my whole manner of thinking is based.

Where do those rights derive from? And can you legitimately "contract" those rights out of the agreement?

I say whatever the charter documents must be, a government cannot be called legitimate and do that.

But what gives those rights the authority to be in that position?

According to the Founding Fathers, they are a gift from God. God is the authority.

Dress it up any way you want (God created Nature then stepped back, etc.), but it always goes back at root to rights being a gift from the supernatural.

Why not derive rights from human nature based on observation instead and leave out the supernatural?

At that point, it would be a good idea to work on what human nature is, which is another problem, but if rationality is the system to use, deriving a rational system over top of an irrational base, then debating the details, does not seem to me to be the best way to go.

Michael

[George H. Smith]

According to the Founding Fathers, they are a gift from God. God is the authority.

Dress it up any way you want (God created Nature then stepped back, etc.), but it always goes back at root to rights being a gift from the supernatural.

This is an intolerably oversimplified view at best and just plain wrong at worst.

For deists like Thomas Jefferson, God created nature, and rights derive from human nature and the requirements of social interaction. Rights are derived and justified by reason -- or "natural revelation," as it was often called -- not by recourse to supernatural decrees. For Jefferson, people are "endowed by their Creator" with certain rights in the sense that God created human nature, and rights flow from this nature. God is the ultimate source, in effect, of rights, but human nature and reason are the proximate source.

This approach was not peculiar to deists. Rationalistic Christians, such as John Locke, also adopted this approach. If you read Locke's Second Treatise of Government (1680) -- the seminal text in political theory for revolutionary Americans -- you will find no reliance on biblical texts to establish political conclusions. Reason, for Locke, is the method to be used in the realm of political theory. This was also the case with many of Locke's predecessors, such as Grotius and Pufendorf, and for many Catholic natural law philosophers as well.

You must remember that atheists were rare during during the 17th and 18th centuries, so every field of knowledge was ultimately linked to God in some manner. This was true even of physics and other natural sciences. This ultimate foundation was taken as a given, but just as this doesn't invalidate the conclusions of Newton and Kepler (both of whom were very religious), so it doesn't necessarily invalidate the secular reasoning in political theory that became the norm after the late 17th century -- the "Age of Enlightenment." This referred to the "light" of reason, and no one during that period was taken seriously if he defended a political theory merely on the grounds that God willed it.

Indeed, as Hugo Grotius put it in 1625, the rational conclusions of political theory would be valid even if God didn't exist. This wasn't an especially controversial claim at the time; various Thomistic philosophers had been saying pretty much the same thing for centuries.

Ghs

[Peter]

Msk, when disputing Spooner wrote:

Going from this premise, it is only natural that the social organization for human beings reflect that reality. Just as you don't choose the family you are born into, you don't choose the social organization you are born into. . . From what I have been able to see so far, the idea of making a charter document based on rights, and making it changeable through amendment (but not making that process easy), meets the criterion of human nature. End quote

Ghs responded:

First, because the government contract establishes the moral and juridical authority of political sovereignty . . . and this social contract (which requires unanimous consent) . . . the contract model was seen as a method of political reasoning that remained loyal to the principle of equal and reciprocal rights, according to which no government can claim rights over and above the rights of individuals. Rand placed herself firmly in this tradition when she declared that all rights are individual rights, and she correctly observed that, according to this tradition, government is the agent (or servant) of citizens, not their master.

end quote

Sorry for the embarrassment Michael, but once again I am in agreement with Msk. We must start with our human nature, and with the Government we currently have. The idea that for a Government to be morally established requires unanimous approval of the people within a geographical area, is impractically democratic. We have a Republican form of Government. In the Greek Democracies only a majority was required. Under George’s premise if ten thousand voted “Yea!” and one voted “Nay!” then the Constitution could not become the law of the land. And when a child reached majority he could vote to opt out of being under the jurisdiction of the Constitution.

George’s, and Spooner’s notion of “The Illegitimacy of The Constitution,” does not pertain contextually to what we now know.

Spooner wrote:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago.

End quote

A contract between man and man? No it is a contract amongst all the people, or as we are fond of saying, it is a contract between “We the People,” and every individual living at the time of its inception, and every individual living within a certain geographical area, after that, for all time.

Once more, to meet Adam’s request for a quote, I agree with George, the Constitution was created to protect individual rights. It is a contract in a much broader sense than a business contract. I agree with Michael, that a previously written Constitution is analogous to “The Family Unit,” in this sense: we are born into it.

We can leave the family, or the country, when we reach 18 years of age. We can disown our family or our Country. But we cannot legally or morally, unilaterally opt to disband the family or our Country.

If George H. Smith were to go to the Supreme Court with a case to take himself out of the jurisdiction of the United States while remaining within its borders, are the above arguments the ones he would use? Who thinks he would win the case?

If George went another route and does not use a part of the government, the Supreme Court, to seek to opt out, but instead, barricades his house and declares he is the country of Spoonerville, what would his neighbors think of him? What would the Seven O’clock News report? Where would George be twenty four hours later?

Semper cogitans fidele,

Peter Taylor

[Brant Gaede]

I think the historical essence of the American social contract is you don't use force against me and I against you. This alone implicitly recognizes rights, not that the Founding Fathers didn't have explicit knowledge. Too bad that continues so weakly today.

If I violate someone's rights and get arrested it would be a very weak defense indeed to claim that I didn't consent to the government that arrested me and therefore my rights were being violated. If I didn't violate anybody's rights and the government arrests me not and is generally itself not in the rights' violation business, then it is ivory tower speculation to talk about the legitimacy of the government concerning consent to its existence.

If I am arrested for violating someone's rights and I am innocent but the government is generally non-rights' violating, it would seem rational not to complain about the legitimacy of the government and instead hire a lawyer and post bail; prepare my defense.

--Brant

[George H. Smith]

Michael,

The passage below, which is excerpted from my article "Thinking About War" (Liberty,March, 2008) is a summary of how Hugo Grotius -- one of the most influential writers in modern political philosophy --went about justifying rights.

This summary is based on Grotius's massive book on international law, Rights of War and Peace. ,first published in 1625. For the complete text of "Thinking About War," which explores some of the issues we are discussing here, see:

http://libertyunbound.com/archive/2008_05/smith-war.html

Grotius based his theory of rights on an ethics of rational self-interest. In the words of Richard Tuck (a leading authority in this field), Grotius "went back to the principles of the Stoics . . . in particular the Stoic claim that the primary force governing human affairs is the desire for self-preservation. But he interpreted this desire in moral terms, as the one and only universal right: no one could ever be blamed for protecting themselves. . . ."18

According to Grotius, reason enables man to formulate and act upon the general principles that set the foundation for a beneficial social order. Foremost among these conditions is the preservation of one's suum, i.e., moral jurisdiction and power over one's life, body, and liberty. For Grotius, these spheres of moral jurisdiction are expressed in terms of rights, which define and delimit the use of physical force in society. Grotius would have wholeheartedly agreed with Ayn Rand's statement that "Individual rights are the means of subordinating society to moral law."19

According to Grotius, people form political societies primarily for the individualistic purpose of protecting their rights from the violent invasions of others: "the end of society is to form a common and united aid to preserve to every one his own." Self-preservation is a fundamental right that is violated by the initiation of physical force, so self-defense is a right "which nature grants to every one."20 Rights "do not prohibit all use of force, but only that use of force . . . which attempts to take away the rights of another."21 The right of self-defense justifies the retaliatory use of force: "a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack." This reasoning also applies to our conduct in a just war, which has as its purpose "the preservation of our lives and persons."22

Ghs

[Brant Gaede]

"The Constitution was created to protect individual rights."

But the bottom line result was the creation of a government that soon became the state now eating us alive.

--Brant

[George H. Smith]

Sorry for the embarrassment Michael, but once again I am in agreement with Msk. We must start with our human nature, and with the Government we currently have.

These are two different things entirely. There is a huge logical chasm between "human nature" and "the Government we currently have." Stress on the latter is the essential characteristic of conservatism.. The notion that this should constitute a starting point for political theory would make Ayn Rand turn over in her grave.

Btw, would your claim that we should start with the government we currently have also apply to the North Koreans, Saudis, Chinese, former Soviet citizens, and the like? Or, unlike Americans, would they be permitted to use their reason to reject their governments, if they found them unjust?

The idea that for a Government to be morally established requires unanimous approval of the people within a geographical area, is impractically democratic.

In the post you are responding to here, I specifically noted that in the Lockean (and American) tradition, only majority approval was required for the government contract to take effect. If you are going to respond to my posts, please do me the favor of reading them more carefully.

Moreover, I was describing some essentials of the Lockean tradition, not evaluating or endorsing them.

Ghs

[George H. Smith]

If I violate someone's rights and get arrested it would be a very weak defense indeed to claim that I didn't consent to the government that arrested me and therefore my rights were being violated. If I didn't violate anybody's rights and the government arrests me not and is generally itself not in the rights' violation business, then it is ivory tower speculation to talk about the legitimacy of the government concerning consent to its existence.

Natural-right philosophers were well aware of this kind of problem. Many distinguished between two categories of rights, viz., "inherent" and "adventitious."

Inherent rights, such as the right not be murdered, do not require consent to be enforced. But adventitious rights, which emerge from voluntary agreements, such as a contract, do require such consent.

Hence the consent given to a government was seen as generating an adventitious right, not a natural right, to govern. In legal terms, the government contract was seen as a "trust," whereby a principal authorizes his agent to undertake certain tasks in his behalf. And should the agent violate that trust, the right may be revoked by the principal, by violent means if necessary.

There is a lot more to this, of course. I mention this distinction in order to illustrate an important point, namely: Don't underestimate the sophistication and detail of earlier natural rights philosophizing. Indeed, I would go so far as to say that seventeenth and eighteenth century libertarians worked out a more satisfactory and sophisticated theory of natural rights, including how they would apply to a wide range of practical problems, than have modern libertarians and Objectivists. Emergency "lifeboat" scenarios, for instance, were analyzed in considerable detail.

There is no "ivory tower speculation" in any of this, at least not for those people who rejected absolutism and were unwilling to submit passively to every government decree. The practical implications of social contact theory were explosive, and many thousands of people died in an effort to implement its principles.

Ghs

[George H. Smith]

A contract between man and man? No it is a contract amongst all the people, or as we are fond of saying, it is a contract between “We the People,” and every individual living at the time of its inception, and every individual living within a certain geographical area, after that, for all time.

(1)What are "all the people" in a given country, if not a group of individuals? Don't get mystical on me, Peter.

(2) The U.S. Constitution was not ratified by "all the people." In direct violation of the Articles of Confederation, America's first Constitution, it only required ratification by 9 of 13 states. And a lot chicanery was involved in bringing about this result. Moreover, women, slaves, and indentured servants were not included in "we, the people."

(3) How is it morally possible for a contract to bind any but the parties who agreed to that contract? Can you and I sign a contract now that binds future generations? No way.

Once more, to meet Adam’s request for a quote, I agree with George, the Constitution was created to protect individual rights.

I never said this, and it isn't true. The primary purpose for calling the Constitutional Convention was to vest taxing powers in the Federal Government, a power it lacked under the Articles of Confederation.

That federal taxing power (to which limitations were deliberately excluded) has served as a wonderful guardian of individual rights -- right, Peter?

Ghs

[George H. Smith]

We can leave the family, or the country, when we reach 18 years of age. We can disown our family or our Country. But we cannot legally or morally, unilaterally opt to disband the family or our Country.

No one is talking about disbanding our country. A government is not the same thing as a country.

You obviously don't know anything about the notion of "volitional allegiance," which was essential to the founding of the American Republic after the revolution. Americans expressly rejected the common law principle of "perpetual allegiance," especially as expounded by Lord Coke, since that would have made it impossible for Americans to renounce their allegiance to the British government. Yet "perpetual allegiance" is the very thing you are defending. For an excellent treatment of this subject, see James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, 1978), especially Chapter 7, "The Idea of Volitional Allegiance."

Whether you agree with me or not is unimportant, but you seem completely unaware of how many of your remarks repudiate some basic principles on which America was founded -- the same country you claim to revere.

If George H. Smith were to go to the Supreme Court with a case to take himself out of the jurisdiction of the United States while remaining within its borders, are the above arguments the ones he would use? Who thinks he would win the case?

Would this be the same Supreme Court that has systematically deprived Americans of their natural and even constitutional rights? Or were you thinking of some other Supreme Court?

If George went another route and does not use a part of the government, the Supreme Court, to seek to opt out, but instead, barricades his house and declares he is the country of Spoonerville, what would his neighbors think of him? What would the Seven O’clock News report? Where would George be twenty four hours later?

Unlike you, apparently, I don't consult neighbors or reporters before deciding which moral principles I should adopt. I use my reason instead. And, my God, what would neighbors and reporters have thought of Ayn Rand's radical ideas? We already know the answer to that question.

You're getting on my nerves again, Peter. Please make an effort to minimize the dumb examples. Everyone on this list, minarchists and anarchists alike, would respond pretty much as I have, and I don't like taking the time to state the obvious.

Ghs

[Michael Stuart Kelly]

According to the Founding Fathers, they are a gift from God. God is the authority.

Dress it up any way you want (God created Nature then stepped back, etc.), but it always goes back at root to rights being a gift from the supernatural.

This is an intolerably oversimplified view at best and just plain wrong at worst.

George,

I read your reply twice, and I don't want to agree or disagree for the sake of agreeing or disagreeing (or not being wrong or whatever vanity issues these kinds of discussions prompt in people), but for the life of me, I can't see how you did anything but agree with me except for your judgment. Oversimplified? I don't think so. Simplified, certainly. That is a characteristic of any fundamental principle. For example, "A is A" is about as simple as it gets.

But let me break it down:

For deists like Thomas Jefferson, God created nature, and rights derive from human nature and the requirements of social interaction. Rights are derived and justified by reason -- or "natural revelation," as it was often called -- not by recourse to supernatural decrees. For Jefferson, people are "endowed by their Creator" with certain rights in the sense that God created human nature, and rights flow from this nature. God is the ultimate source, in effect, of rights, but human nature and reason are the proximate source.

In other words, for Jefferson, "God is the ultimate source." Your words not mine. Here's another. "Endowed by their Creator." That means gift. I quoted from your words again. This agrees with what I said. I said nothing about any kind of "supernatural decree" as if that were to be some kind of miracle or something written in a 10 Commandments form or anything like that.

Before I continue, and as an aside, there is an insinuation in your post (and I might be wrong), that you believe my notion of human nature excludes reason. I don't believe that at all. I hold that reason is a fundamental part of human nature. But it is not all of human nature. On reading your post with the emphasis on reason, I get the feeling of hearing something like, "That's not a fruit at all. It's an apple." Or maybe, "human nature is an attribute of reason."

I'm not saying you say or mean these things, but that is a premise-level insinuation impression I get from the way the arguments come off to me. (I often get that impression from Rand's writings, also.) Like I said, I might be wrong about what you mean, but I want my position to be clear.

When I say human nature, I do not exclude reason. I do not find human nature and reason to be mutually exclusive or antagonistic. On the contrary, they are part of the same entity, human being. I place reason underneath the wider category of human nature, which includes the biological stuff.

This even satisfies the genus differentia model of Objectivist concept formation in defining man as a "rational animal." Man is rational. But he's also an animal. He's a rational kind of animal.

This approach was not peculiar to deists. Rationalistic Christians, such as John Locke, also adopted this approach. If you read Locke's Second Treatise of Government (1680) -- the seminal text in political theory for revolutionary Americans -- you will find no reliance on biblical texts to establish political conclusions. Reason, for Locke, is the method to be used in the realm of political theory. This was also the case with many of Locke's predecessors, such as Grotius and Pufendorf, and for many Catholic natural law philosophers as well.

I never said anything about biblical texts. But interestingly enough, it was Locke who brought me to the idea I mentioned, the one that you find to be an "intolerably oversimplified view at best and just plain wrong at worst." And it comes from his Second Treatise of Government. Here is a quote from Chapter II, Sections 4 and 6 (with my bold):

(From Section 4):

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

. . .

(From Section 6):

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's.

Looks to me like Lock's premise is that God created nature, made laws for it, and put man in it. And that any freedom in it is by His pleasure. Hell, Locke even calls man "his property" (God's property).

I consider the "state of perfect freedom" Locke mentions here to be the basis of individual rights that others like our Founding Fathers used at the time. Correct me if I am wrong.

Now look at my statement again: "... it always goes back at root to rights being a gift from the supernatural."

What's wrong about that? It perfectly fits Locke's formulation. It's actually even softer since Locke clearly states that man is God's chattel made specifically to do "his business" and "made to last during his... pleasure."

You must remember that atheists were rare during during the 17th and 18th centuries, so every field of knowledge was ultimately linked to God in some manner. This was true even of physics and other natural sciences. This ultimate foundation was taken as a given, but just as this doesn't invalidate the conclusions of Newton and Kepler (both of whom were very religious), so it doesn't necessarily invalidate the secular reasoning in political theory that became the norm after the late 17th century -- the "Age of Enlightenment." This referred to the "light" of reason, and no one during that period was taken seriously if he defended a political theory merely on the grounds that God willed it.

This has nothing to do with my point. Of course it made sense to talk about God if you could be executed or imprisoned for questioning it. I'm not throwing any kind of blame around or anything of that nature. I'm trying to identify a principle, irrespective of anything else.

Once again, I do not exclude reason from human nature. And, apparently, neither did Locke exclude it from being part of God's "property."

In this response, I left out the part about Grotius here because you elaborated on it in another post. So I will comment on it in a new post, also. Leave it to say here that I liked it a lot.

I want you to be aware of another thing. I am not nearly as well-read as you are on political theory and history. I haven't published any works on this stuff, either, other than thoughts on Internet forums. My discussion with you on this is not in any form trying to compete or anything of that nature. I even consider it an honor to be taken seriously by someone with more learning that I have. Let me say that I bow to your greater learning and writing achievements for matters where learning and writing achievements are pertinent. Seriously.

I am merely a layman who has read some things, done some independent thinking and finds these ideas to be interesting and valuable. Now here comes the rub. Unless an argument can be presented to me in a form that makes sense to me and convinces me to change my thinking, I will continue thinking the way I think, irrespective of how "intolerably oversimplified" or "just plain wrong" anyone may think I think. I bow to competence. But I don't bow to intimidation very easily when I discuss ideas.

One more thing before I sign off on this post. Ayn Rand made the mistake (or what I believe is a mistake) of overlooking the supernatural source of rights. She even mentioned it, but blew it off ("Man's Rights" in The Virtue of Selfishness, p. 111):

The concept of individual rights is so new in human history that most men have not grasped it fully to this day. In accordance with the two theories of ethics, the mystical or the social, some men assert that rights are a gift of God—others, that rights are a gift of society. But, in fact, the source of rights is man's nature.

The Declaration of Independence stated that men "are endowed by their Creator with certain unalienable rights." Whether one believes that man is the product of a Creator or of nature, the issue of man's origin does not alter the fact that he is an entity of a specific kind—a rational being—that he cannot function successfully under coercion, and that rights are a necessary condition of his particular mode of survival.

I agree with her that the source of man's rights is man's nature. But I think that dismissing the supernatural source as merely "man's origin" and ignoring the "his property" (meaning all men, including their rights, are God's property) part like Locke wrote about is a huge mistake. That is, unless you might believe that the signers of the Declaration of Independence believed that God created man, but did not believe that men were God's property. From my own readings of the time, I see no evidence to think that way.

I hold that this supernatural source of rights concept is a crack in rights theory where all kinds of mischief has entered through the years. And it's getting time to close the crack in some manner or another. I have been thinking of doing an article or something on this, but I'm not saying that I'm the person to close that crack.

I do know that people do not have much of a chance at fixing something unless they first identify what the problem is. I also know that I see a fundamental problem and have noticed some of the results in history that can be easily attributed to it. I see a solution that might help, and I don't even claim originality of that solution. I haven't read anything so far that makes me think I am seeing an illusion. So I write about it.

Michael

[George H. Smith]

Going from this premise, it is only natural that the social organization for human beings reflect that reality. Just as you don't choose the family you are born into, you don't choose the social organization you are born into.

True, but this doesn't render that social organization just, nor does it preclude the possibility that a person is morally justified in attempting to change it, evade or disobey its more oppressive features, or even resist those oppressive features by force. The brutal oppression of women under Taliban rule comes immediately to mind here, as does religious persecution in many cultures.

I also believe there is an implicit premise in Spooner's "contract" formulation that doesn't hold. The premise is that the human race is made up only of adults (ones who have the mental competence to enter a contract), or at least, that children are outside any "contractual" consideration. In practical terms, if children had to wait to grow up before they could choose (i.e., enter a contract for) what legal system they could use to protect their rights, people simply wouldn't get very much done.

I disagree with this interpretation, but this gets us into the complex problem of children's rights. I included a long article on this subject, "Children's Rights In Political Philosophy," in Atheism, Ayn Rand, and Other Heresies, and I'm afraid I will have to refer you to that article for the time being. The issues are too complex for me to summarize them here in a satisfactory manner.

Btw, in Vices Are Not Crimes, Spooner follows the Common Law tradition and suggests that the age of consent should be 10. This will strike most people today as excessively young, but we should remember that this Common Law norm arose during an age when a person would be lucky to make it to age 40. In earlier centuries, there was an abrupt transition form childhood to adulthood. The transitional stage of "adolescence" had not yet been invented.

But there is something worse. This would make children the chattel of their parents and would extend no protection to their right to life if they have abusive parents who refuse to enter into a "contract" that would ensure them their rights. Without a charter document in place to protect rights, one that governs contracts, it would even be possible for parents to engage in child slave labor and sell their children to child slave owners, at least until the children become of such age that they could enter into contracts themselves.

This doesn't follow at all. Philosophers in the Lockean tradition were the first to develop a comprehensive theory of children's rights. Indeed, Locke himself, in his Second Treatise of Government, clearly distinguished between parental authority and political authority in the course of rebutting the claim that parents have absolute power over their children. The ancient right of patria potestas, according to which children were legally regarded as chattel, in effect, had been defended by Jean Bodin, Robert Filmer, and other defenders of political absolutism.

Generally speaking, libertarian types used the guardian-ward model in their explanation of the rights that parents have over their children. Again, this is something I discuss in "Children's Rights In Political Philosophy."

Ghs

[Michael Stuart Kelly]

George,

My context for the issues you bring up in your last post is whether or not an enduring constitution is a valid form of organizing human affairs. Spooner, if I remember the rest of his essay, thinks it is not.

This has nothing to do with the Taliban or anything like that.

My mention of children is within this context. My point is that without some kind of enduring extra-parental protection for children, abusive parents will have a heyday. Some really nasty folks already do with protection for children, so imagine if none exists.

As far as I know, Locke was not working with a concept of no formal organization (such as an enduring charter) for government (my context for that observation). I have not read the other authors you mentioned, but I imagine they were not, either.

Peppered in with my context is a notion I am developing in my thinking of basing human rights on human nature, and basing government on human rights (individual rights) derived in that manner. I don't understand your points within that context.

For the record, I regard considering children as chattel to be against human nature in a broader view. Just because an action is possible to a human being does not mean that it is a fundamental characteristic or beneficial one.

EDIT TO THE LAST PARAGRAPH: Being able to bully children actually contains fundamental characteristics of human nature: the adult's size and control over his body as opposed to the natural vulnerability of children. That does not make the enslavement of children to be a fundamental characteristic in itself, though. Also, the actual act of bullying children is common enough among humans that I believe protecting children against a basic level of brutality by parents or guardians to be warranted.

Michael

[George H. Smith]

Before I continue, and as an aside, there is an insinuation in your post (and I might be wrong), that you believe my notion of human nature excludes reason. I don't believe that at all."

I didn't mean to suggest this, and I regret if I gave that impression.

(From Section 6):

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's.

Looks to me like Lock's premise is that God created nature, made laws for it, and put man in it. And that any freedom in it is by His pleasure. Hell, Locke even calls man "his property" (God's property).

I didn't mean to suggest that God was completely irrelevant to Locke's treatment of rights; it wasn't. But Locke believed that everything we need to know about rights can be discovered by reason; we don't need to rely on faith or supernatural revelation.

I consider the "state of perfect freedom" Locke mentions here to be the basis of individual rights that others like our Founding Fathers used at the time. Correct me if I am wrong.

The state of nature was not the basis of individual rights. It referred to a society without government in which all rights are still held and executed by individuals.

Now look at my statement again: "... it always goes back at root to rights being a gift from the supernatural."

What's wrong about that? It perfectly fits Locke's formulation. It's actually even softer since Locke clearly states that man is God's chattel made specifically to do "his business" and "made to last during his... pleasure."

Yes, Locke regarded rights as a "gift" in a sense, because God did not have to create human nature as he did. For example, he could have created humans in such a way that people didn't possess the rational faculties necessary to understand the mutual benefits of voluntary cooperation. (This would have made them "beasts" instead.] But given human nature as God created it, rights, as discerned by reason, flow logically from that nature. Hence the primary gift that God gave to man was reason, and it was this faculty that enabled man to discern the principles of justice, social cooperation, etc.

I don't mean to deny the problems that Locke's theistic views caused for his political theory. Perhaps the most significant of these is the tension between Locke's assertion that everyone has "a property in his own person" and his assertion that we are ultimately God's property, since he created us. One consequence of the latter is that Locke denied the right to commit suicide, since to destroy oneself would be to violate the property rights of God, in effect.

Of course it made sense to talk about God if you could be executed or imprisoned for questioning it. I'm not throwing any kind of blame around or anything of that nature. I'm trying to identify a principle, irrespective of anything else.

I was attempting to identify a principle as well, namely, that for many centuries reason, as applied to empirical observations about human nature and society, has been regarded as sufficient to justify rights. Neither faith nor special revelation was required.

I am merely a layman who has read some things, done some independent thinking and finds these ideas to be interesting and valuable. Now here comes the rub. Unless an argument can be presented to me in a form that makes sense to me and convinces me to change my thinking, I will continue thinking the way I think, irrespective of how "intolerably oversimplified" or "just plain wrong" anyone may think I think. I bow to competence. But I don't bow to intimidation very easily when I discuss ideas.

It never occurred to me that you might construe my remarks as an attempt to intimidate. I replied to you in precisely the same way that I would have replied to any "expert" in the history of political philosophy. I was simply being direct about a historical claim that I think is wrong.

One more thing before I sign off on this post. Ayn Rand made the mistake (or what I believe is a mistake) of overlooking the supernatural source of rights. She even mentioned it, but blew it off ("Man's Rights" in The Virtue of Selfishness, p. 111):

The concept of individual rights is so new in human history that most men have not grasped it fully to this day. In accordance with the two theories of ethics, the mystical or the social, some men assert that rights are a gift of God—others, that rights are a gift of society. But, in fact, the source of rights is man's nature.

The Declaration of Independence stated that men "are endowed by their Creator with certain unalienable rights." Whether one believes that man is the product of a Creator or of nature, the issue of man's origin does not alter the fact that he is an entity of a specific kind—a rational being—that he cannot function successfully under coercion, and that rights are a necessary condition of his particular mode of survival.

I agree with Rand here, as would have Jefferson and other deistic defenders of natural rights. The origin of human nature is a different issue than the characteristics of human nature. Whether we were created by God or not, our nature is what it is, and rights flow from that nature. This is actually the same point that I was attempting to make in my previous post.

I agree with her that the source of man's rights is man's nature. But I think that dismissing the supernatural source as merely "man's origin" and ignoring the "his property" (meaning all men, including their rights, are God's property) part like Locke wrote about is a huge mistake.

Yes, Locke was mistaken, but not every natural rights philosopher repeated his error. There were many variations on such points in the natural rights tradition.

I hold that this supernatural source of rights concept is a crack in rights theory where all kinds of mischief has entered through the years.

I agree with this; there were cracks galore in a lot of earlier natural rights thinking, some of which were related to its theistic foundation. But many of the fundamental insights were sound.

Ghs

[Michael Stuart Kelly]

George,

I have a question that is pertinent to my ideas on the supernatural source of rights. I don't ever see this discussed.

Do you think that Locke and others believed in divine miracles?

That it was possible (and sometimes happened) for God to intervene directly in Nature and perform things contrary to the natural laws He set up?

I'm serious.

If they believed this, that would add a joker to the pack.

Michael

[George H. Smith]

My context for the issues you bring up in your last post is whether or not an enduring constitution is a valid form of organizing human affairs. Spooner, if I remember the rest of his essay, thinks it is not.

Spooner's statements about the U.S. Constitution were varied and complex. If you would like to know more, please take a look at my Introduction to The Lysander Spooner Reader at:

http://www.voluntaryist.com/spooner/smithspoonerreader.php

(Unfortunately, the quotations in my Introduction are a little screwed up on this site, but they are still complete and legible.)

My point is that without some kind of enduring extra-parental protection for children, abusive parents will have a heyday. Some really nasty folks already do with protection for children, so imagine if none exists.

I have no problem with your position. What I don't understand is why you think Spooner would have had a problem with it.

Btw, Spooner never called himself an "anarchist." He believed that a legitimate government should be based on real consent, not on some hypothetical or tacit consent. This is why I have often called Spooner an "unterrified Lockean."

Ghs

[George H. Smith]

George,

I have a question that is pertinent to my ideas on the supernatural source of rights. I don't ever see this discussed.

Do you think that Locke and others believed in divine miracles?

That it was possible (and sometimes happened) for God to intervene directly in Nature and perform things contrary to the natural laws He set up?

I'm serious.

If they believed this, that would add a joker to the pack.

Michael

Locke was a Latitudinarian -- i.e., a very liberal and rationalistic Christian -- who did not deny the ability of God to perform miracles. But in his Essay Concerning Human Understanding, he mounted a powerful argument that seriously called into question the rationality of believing in historical miracles.

For this and other reasons, Deists -- those who believed in a laissez-faire creator God who didn't intervene in human affairs -- regarded Locke as their godfather, even though he didn't agree with them on some issues.

The deistic rejection of divine intervention was extremely important, for this meant that no person could claim a special authority from God to justify special privileges that no other person had. Reason was the only court of appeal, the Bible was irrelevant, and no one could claim that he was right because God personally told him so.

Ghs

[Peter]

I just want to start by saying I am mainly interested in the Constitution, in my letter, as a source and justification for Human Rights, with a tie in with Rand.

Msk wrote:

One more thing before I sign off on this post. Ayn Rand made the mistake (or what I believe is a mistake) of overlooking the supernatural source of rights. She even mentioned it, but blew it off -

("Man's Rights" in The Virtue of Selfishness, p. 111):

“The concept of individual rights is so new in human history that most men have not grasped it fully to this day. In accordance with the two theories of ethics, the mystical or the social, some men assert that rights are a gift of God—others, that rights are a gift of society. But, in fact, the source of rights is man's nature.”

End quote

Unlike Ayn Rand, the reason I have no problem with the notion of “Endowed by their creator” in a political document is that The Declaration of Independence is presented as if it were an Axiom:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

End of Axiom

A is A. The Declaration could go into a detailed defense or treaties about the history of the origin of rights, quoting Locke, or a dozen others, or Ghs for that matter if he were around then, but as an axiom, it is presented as a thing that cannot be disputed. They Founding Fathers had to start somewhere, and I say this axiomatic start was a stroke of genius, intentional or not.

So in a sense, Rand does blow off this supernatural source of rights and the good intentions of the Founders, but political theorists are welcome to find a better justification for Human Rights.

Michael wrote:

I hold that this supernatural source of rights concept is a crack in rights theory where all kinds of mischief has entered through the years. And it's getting time to close the crack in some manner or another.

End quote

I am not positive I understand your point, or your shift, from “Ayn Rand made the mistake of overlooking the supernatural source of rights” . . . to “this supernatural source of rights concept is a crack in rights theory . . . “

It is a crack in Rights Theory, if we only accept the Constitution as the only place rights can be justified. I do not see it as causing the Constitution to be invalid. For Secularists, it is like saying, “Oh my God.” The Secularist may not believe in God, but it is a handy saying to have in your repertoire.

A lot of Religious Conservatives do use “endowed by God,” as a justification for saying we are a Christian nation. But the separation of church and state, and the Supreme Court have kept them at bay, especially in recent years, and sometimes to an extreme. I have no problem with a Christmas nativity scene at a school, but I recognize this opens the door for a Muslim, or Hindu to also demand equal time.

Rand was quoted above as saying:

“But, in fact, the source of rights is man's nature.”

And Msk wrote:

I do know that people do not have much of a chance at fixing something unless they first identify what the problem is. I also know that I see a fundamental problem and have noticed some of the results in history that can be easily attributed to it. I see a solution that might help, and I don't even claim originality of that solution. I haven't read anything so far that makes me think I am seeing an illusion. So I write about it.

End quote

Again let me reiterate, I think you are talking about Rights Theory, but not changing the Constitution, to eliminate God from the Declaration.

Now, it would be great if your, “solution that might help” could be like a geometric proof, that no one could disprove. The math or symbolic logic behind it would need to be invincible.

If you start with: *the source of rights is man's nature,* then we would need a definition of man or “human” that transcends all cultures, and would be true in the past, present, and into the future, until we evolve into something different. I hope you will write about it Michael.

No reply necessary. I would rather follow yours and George's trains of thoughts.

Semper cogitans fidele,

Peter Taylor

[Peter]

George wrote:

How is it morally possible for a contract to bind any but the parties who agreed to that contract? Can you and I sign a contract now that binds future generations? No way.

End quote

Is there a different status to a Political Document signed off on or ratified, by all thirteen former Colonies, the signers being people elected or nominated to represent those district’s individual’s interests? Those representatives were also standing in for children alive at that time and for their children born next year, and for the other children who are born later, who will later have children of their own, on into the future . . .

I am not assigning The Constitution a mystical status, but it is a typical way to start a country from scratch, or after breaking away from an older Government.

George are you suggesting, as you did in a previous post, that the reason for the Convention and ratification was to allow the Federal Government to tax? That may have been a necessary step, but to suggest that was their dark motive is implausible. I don’t doubt it was on their minds as one of the most contentious issues.

Their main thrust was to secure liberty. That is what it was about, not a nefarious scheme to stealthily rule with the first step being taxation. Certainly, Hamilton and others had a grander vision for the scope of Government. Other than taxation what are some other “stealth bombs” lurking in the 17 page document we call the Constitution?

Congratulations George. Your topic is one of the most successful that I have seen. You should charge per answer, payable to a paypal account, for those of us who are leery of giving our credit card numbers online. Sort of like Legal Zoom dot com.

Semper cogitans fidele,

Peter

[Michael Stuart Kelly]

What I don't understand is why you think Spooner would have had a problem with it.

George,

Well then again the ape looked like a poodle on the moon and the tea was wretched. But that's OK because the vessel carried it off and used lipstick...

What on earth are you talking about?

Michael

[Michael Stuart Kelly]

Locke was a Latitudinarian -- i.e., a very liberal and rationalistic Christian -- who did not deny the ability of God to perform miracles. But in his Essay Concerning Human Understanding, he mounted a powerful argument that seriously called into question the rationality of believing in historical miracles.

For this and other reasons, Deists -- those who believed in a laissez-faire creator God who didn't intervene in human affairs -- regarded Locke as their godfather, even though he didn't agree with them on some issues.

The deistic rejection of divine intervention was extremely important, for this meant that no person could claim a special authority from God to justify special privileges that no other person had. Reason was the only court of appeal, the Bible was irrelevant, and no one could claim that he was right because God personally told him so.

George,

This is exactly my point. Whether or not this point was understood and was important to the original framers of the Constitution is one thing. What has happened ever since is another.

Elected politicians are often not very good historians. The largest constituency of voters in America is Christian, but there are many other religions. So who is going to have a greater voice in the politician's acts? The people who vote for him and guarantee his job, of course.

I notice that separation of state and church seems to break down when oaths of office are sworn on the Holy Bible or other religious books. How often does the President say, "God bless America"?

I am not against this sort of thing if it comes from inside the person's personal beliefs and moral authority. But many traditions have sprung up welding the church to the state, even in law.

For the most recent example of the crack I mention, can you imagine Bush doing the government-growing things he did and claiming Constitutional legitimacy for many of them without thinking that his trampling of the Constitution was backed by God?

I can't.

He even had as habit (and said so in public, if I remember correctly) that he consulted a minister to pray before making major decisions.

It would be interesting to see how often God has been invoked, using Him as the implied "endower of rights," as the underlying arguments for the encroachment of government and undermining of the Constitution over the centuries. I bet you can find a truckload.

So I agree that Locke's argument was great for the time he made it. (Just for the record, I personally think that the reasoning of God standing back from Nature in order to undermine the Divine Right of Kings was one of the most brilliant forms of political reasoning in human history, seeing that declaring that you were an atheist got you killed back then.)

But for the present day, divine endowment of rights is the crack where religious politicians drive a truck through.

Michael