The Founders on Race and the Rational Basis of Natural Law: Reply to Peter Myers

Thomas G. West

For the founders, the social compact is based on equal consent on both sides. Existing citizens should consent to new citizens, just as new citizens should consent before being admitted to citizenship.

 

I thank Peter Myers for his generous assessment of my Political Theory of the American Founding – at least in the first half of his review. In the space available, I will concentrate on his criticisms in the second half. These are directed not so much at my own scholarship, but rather at the founders.

I argue in Political Theory that their political theory was emphatically not an “amalgam” of disparate traditions, as scholars today tend to believe. Instead, I try to prove that the founders shared a consistent understanding of the natural rights and natural law foundation of justice and the common good.

Myers raises doubts about this. He centers on two topics: the founders’ opposition to citizenship for the ex-slaves, and their understanding of the foundation of the laws of nature. Myers’s objections – to exaggerate for the sake of clarity – are first, that the founders blended their natural rights principles with racism; and second, that their defective view of natural law may have prepared the way for today’s “libertarians or libertines or radical egalitarians or ‘social justice warriors.’”

Did Free Blacks Have a Natural Right to Citizenship?

I was disappointed that Myers emphasized the subject of race so strongly in his review. I wrote a whole chapter on that subject in a previous book, Vindicating the Founders. I had hoped that Political Theory would shift the attention of scholars away from the obsessive preoccupation with race and sex that one finds in so much of today’s scholarship. The founders, quite understandably, were not primarily concerned with noncitizens – blacks and Indians. They devoted their intellectual and moral energies to what they considered their biggest challenge: Could a republic based on the consent of the governed adequately protect the life, liberty, and property of its citizens? Or was “free government” forever destined to be “inconsistent with the order of society”? (Federalist 9).

Still, as Myers writes in another place, “Americans, it seems, can never get enough race talk,” so I will respond to his objection. He argues that in the founders’ treatment of free blacks, they blended their natural rights principles with “less savory elements.” This coy expression suggests that at least in one crucial respect, they allowed racism to overpower their commitment to equal liberty. Myers implies, against the argument of my book, that the founders’ political theory was, at least in this respect, “a contrived and inevitably unstable union of mutually incompatible elements.” Myers, it seems, inclines toward Rogers Smith’s thesis that the founders combined equal-rights “liberalism” with a more sinister “ascriptivism” (racism).

Myers and I agree that the founders “were predominantly anti-slavery.” We also agree that they mostly favored “the colonization of those newly liberated.” As Jefferson said, the ex-slaves should live somewhere “beyond the reach of mixture” with American citizens. Myers quotes some of the practical considerations that led the founders to prefer colonization over admission to citizenship, such as fear of violence and cultural incompatibility.

Let me emphasize another point, one that Myers does not mention explicitly. The founders unapologetically preferred a nation of “people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs” (Federalist 2). This preference for “the same ancestors” was codified in the first federal naturalization and militia laws, both of which excluded nonwhites.

As Douglas Bradburn shows, there was a brief period after 1776 when some states were somewhat inclined to treat free blacks as citizens. However, during and after the 1790s, they came to be regarded as “denizens” – legal residents who did not enjoy the full rights of citizenship. In Dred Scott, the Supreme Court correctly listed some of the privileges of citizenship that free blacks were typically denied: “the right to enter every other state,” the “liberty of speech,” the right to “hold public meetings,” and the right “to keep and carry arms wherever they went.”

Colonization was the only logical reconciliation of the ex-slaves’ right to live in a society in which they could be full members, with the Americans’ own natural right to liberty. I mean the liberty of the majority to live together with fellow citizens of their own choice. Gouverneur Morris observed at the Constitutional Convention that “every society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted.”

Myers denies the founders’ reasoning on this question. He admits that in the natural rights theory, there is “no abstract natural right to be a citizen of the U.S. or of any particular political society.” However, he argues that in the case of the former slaves, there was a duty to make them citizens. In this case, he maintains, colonization “is profoundly wrong as a representation of what the natural rights principles required in the circumstances.”

Myers gives three arguments in support of this claim.

First, the ex-slaves had been “forcibly imported,” then “dehumanized.” Americans had “extract[ed] from them a substantial contribution to the development of the country.” Myers asserts that in these circumstances colonization – “forcible deportation” – falls “well short of the requirements of natural justice.”

The founders would have responded by noting that every man is responsible for his own actions. There is no such thing as inherited guilt. The forcible importation of slaves and the creation of the institution of slavery was something that few Americans then living had been involved with. The philosophers of the natural law and natural right tradition have always agreed: individuals are never responsible for the misdeeds of others, including their ancestors. With regard to the existing injustice of slavery, the founders and the philosophers agreed: future good alone should be the aim of whatever was done about that. The main question was what policy will promote the present and future common good of American citizens (security of their life, liberty, and property), with the least possible harm to noncitizens? Their answer was colonization.

Second, most blacks, says Myers, were “Americans, living in the only country they had ever known.” They had no place of their own to which they could be deported.

The founders would have said that this is beside the point. People have neither a civil nor a natural right to live in “the only country they had ever known” if they were never citizens of that country in the first place. Those who favored colonization believed that free blacks should have a country of their own. Liberia was an example of what that meant in practice.

Third, Myers quotes ex-slave Frederick Douglass: “it is natural to us and creditable to you” – i.e., you Americans – that free blacks should wish to become citizens of the United States.

This too is irrelevant. The fact that it is “natural” for blacks (or any other aliens living in America) to want to be citizens gives them no right to be citizens. For the founders, the social compact is based on equal consent on both sides. Existing citizens should consent to new citizens, just as new citizens should consent before being admitted to citizenship.

The founders’ approach is considered racist today because starting in the 1960s, our rulers (but not public opinion) have come to believe that non-Europeans should have the same right to immigration and citizenship as Europeans. Policies that seek to preserve the existing ethnic and cultural balance are vilified in the most hateful terms. Increasingly, people who hold the founders’ view are terminated from employment, banned from social media, and ostracized from polite society.

It is true that the Fourteenth Amendment admits all native-born blacks to citizenship. It is also true that after this amendment was approved, only two races were eligible for citizenship: whites and “aliens of African nativity” and “persons of African descent” (1870 Naturalization Act). Other races continued to be excluded for many years.

From the point of view of the founders’ understanding of natural right, whether or not to grant citizenship to blacks after the Civil War was a decision that could have gone either way. As late as 1862, even President Lincoln, speaking to a delegation of blacks in the White House, still held the Jeffersonian view that  “the people of your race [should] be colonized,” and that “It is better for us both, therefore, to be separated.”

I was amazed by Myers’s blasé dismissal of the founders’ worries about whether blacks and whites would be able to live together peaceably as fellow citizens. Blacks have now been citizens for 150 years. The civil rights revolution of the 1960s and 70s took place over half a century ago. Yet politicians, intellectuals, and journalists loudly and bitterly denounce the “white privilege” and “systemic racism” that supposedly permeate our unjust society.

“We speak of race incessantly,” Myers writes. Yes, we do. Ta-Nehisi Coates has been lauded in our national media as “America’s leading public intellectual.” The thesis of his widely praised Between the World and Me is that “A legacy of plunder, a network of laws and traditions, a heritage … murders black people.” “In America,” he writes, “it is traditional to destroy the black body – it is heritage.” Quoting John C. Calhoun (!) as an exemplary American white, Coates adds, “the right to break the black body [is] the meaning of their sacred equality.”

Myers might regard Coates’s book as a screed unworthy of scholarly attention. He would likely note that Coates’s exaggerations and distortions are not accurate representations of the real conditions faced by blacks. But can he deny that Coates’s diatribe is an authentic expression of the belief held by many blacks (and others) about race relations in today’s America?

Was the Founders’ Understanding of Natural Law Defective?

Toward the end of his remarks, Myers raises a second objection. He claims that the founders misunderstood the laws of nature. “I think West agrees with me,” he writes, “that the founders’ invocations of natural law were assertions or expressions of conviction rather than genuine arguments (80, 88).” He adds: “ If we don’t know the basis of natural law, we cannot know whether it is ultimately compatible with the natural rights doctrine.”

It is true, as I showed in chapter 4, that the founders disagreed on how we know that the natural law exists. But they did not disagree about what the natural law mandates. Nor did they believe that “we don’t know [its] basis.” Their most common argument was that natural rights and the laws of nature were derived from “the natural fitness of things” (or some equivalent expression). They meant that the precepts of the laws of nature are grounded in “natural fitness,” in this sense: that they are fit or suitable for what is naturally good for human life – survival, prosperity, and happiness. Founder John Dickinson sums up this line of argument in a single sentence: “Liberty is essential to the happiness of a society, and therefore is our right.”

Yet Myers says I agree with him that they did not know the basis of natural law. He cites pages 80 and 86 of Political Theory. But my topic on those pages concerns a different question: whether the natural law is morally obligatory under all circumstances. A number of founders were aware that an argument based solely on considerations of private and public good cannot logically yield commandments that are moral absolutes. Myers seems to think that this is a problem with the founders’ position. He thinks it makes them vulnerable to “the claim that the founders’ regime depends for its health on a reservoir of cultural capital that the founders’ principles inexorably dissipate and cannot replenish.”

I see no evidence of that. If it were true that natural law must consist of commands that are morally binding under all circumstances, as Myers seems to think, then one would have to conclude that the classical political philosophers – all of whom deny the existence of moral absolutes – were equally misguided. Is Myers prepared to accuse the classics of promoting principles that “inexorably dissipate and cannot replenish” the “cultural capital” of any well-governed political society? As Leo Strauss writes, Plato and Aristotle, in their teachings on natural right, “avoided the Scylla of ‘absolutism’ and the Charybdis of ‘relativism.’ by holding a view which one may venture to express as follows: There is a universally valid hierarchy of ends, but there are no universally valid rules of action.”

The founders understood perfectly – just as the classics – that there is an indispensable practical need for citizens to hold strong convictions about moral truth. This understanding led the classics as well as the founders to promote religion as an indispensable foundation of political life, as I explain at length in my book. The need for a religious supplement to mere reason as the practical moral basis of community is one of the most widely understood truths in the history of political philosophy.

Consider George Washington: “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” Or Jefferson: “can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with His wrath?”

Is Self-Ownership the Ground of Natural Rights?

I conclude with what might seem to be a tangential point, but which is probably related to Myers’s larger critique of the founders’ coherence. He mistakenly believes that the founders made self-ownership the ground of natural rights. He writes, “in the morally decisive respect, [the founders believed] we are not self-preserving but instead self-owning beings, by virtue of the faculties that render us capable of reflection and choice.” Myers thinks that is my own understanding of the founders.

In fact, Myers is incorrect. If he were correct, the founders would be grounding natural rights on the human capacity to make choices influenced by reason (“reflection and choice”). Instead, as I just explained, natural law and natural rights were grounded on considerations of “the nature and fitness of things,” above all the consideration of what political arrangements and moral principles best conduce to “safety and happiness.”

 

Thomas G. West holds the Potter Endowed Professorship in Politics at Hillsdale College. He is the author of The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (Cambridge University Press); of Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Rowman and Littlefield); and of Plato’s Apology of Socrates: An Interpretation (Cornell University Press).



The Founders on Race…

by Thomas G. West time to read: 11 min
2