Will Morrisey

An Education in Romanness

February 15, 2023 by Will Morrisey

Julius Caesar: Gallic War. In The Landmark Julius Caesar. Edited and translated by Kurt A. Raaflaub. New York: Anchor Books, 2017.

Caesar came, saw, and conquered, frequently, but why? In his excellent introduction to this volume, Kurt A. Raaflaub remarks that the Gallic War goes well beyond military history, encompassing geopolitics, comparative politics, and ethics. He calls Caesar’s book “an education in Romanness,” and truer words have seldom been written. One may add that for Caesar, Romanness isn’t merely Roman. Romanness is the preeminent example of what man, a citizen, and a country should be. Scarcely some latter-day ‘cultural relativist,’ Caesar intends to show Romans why they deserve the vaster empire he and his men have won for them and what virtues will be needed to keep it. He does so, not in the manner of a moralist—a Seneca, a Cicero—who names and describes the virtues, inquiring into human nature, but as one who shows these virtues in actions. The original title of the book was Res gestae—simply, “achievements,” and particularly public achievements. ‘Caesar’ is the public man, almost exclusively, not the private man who married, cut business deals, and wenched. ‘Caesar’ isn’t Julius; he is the model Roman and therefore the model man and citizen, preeminently worthy of emulation, just as ‘De Gaulle’ in Charles de Gaulle’s memoirs isn’t Charles but the model Frenchman, the man ‘of Gaul’ who understands that when the French follow that part of their heritage that the Roman conquest bestowed upon them, “all is well.”

Caesar designs the Gallic War as a narrative proof of the Roman right to empire, the justice of Romans’ claim to rule the others. The three parts into which Gaul is divided, ruled by the Belgae, the Aquitani, and the Celts, differ in languages, institutions, and laws, and the peoples of Gaul also differ from the surrounding peoples—Germans, Britons—and from the many Gallic tribes even differ from one another—the Helvetii from the Boii from the Sequani, and so on. But almost all of these tribes and peoples strive for rule by means of warfare. Some are more warlike than others, but there isn’t a commercial republic, a Venice or a Singapore, among them. In Caesar’s victories, in his way of war and his way of peace, Romanness demonstrates its superiority over Gaulishness, Germanness, Britishness. Given the universal human political purpose of ruling, and the universal human military means to that end, the Romans excel everyone because their regime, their way of life, brings them victory and sustains them in their rule over their defeated rivals.

Romanness could weaken, however. Caesar sees that, too. The “most warlike” Gauls are the Belgae “because they are the farthest from the civilized sophistication” of Transalpine Gaul, the province ruled by Rome; “merchants come to them least often with imports that foster an effeminate disposition; they are also the closest to the Germans living across the Rhine River, and they are constantly at war with them.” The Helvetii, too, “surpass all the Gauls except the Belgae in bravery,” fights the Germans “in almost daily battles, either trying to keep them out of their own country or else actually waging war in the Germans’ territory.” Potentially, Rome might endanger itself by its own civilized way of life, which might foster ‘effeminacy’ or weakness, cowardice, softness. To keep the edge of its moral sword sharp, to maintain the virtus of its citizens, it needs war, imperial rule, even if that rule might, if fully secured, lend itself to what Montesquieu would later call the decadence of the Romans.

At the same time, warlikeness alone fails on the battlefields it craves when set against Roman civilization. In 61 B.C., “the most noble and wealthy person” among the Helvetii was Orgetorix. “Tempted by desire for kingship,” he allied with the aristocrats (his fellow ambitieux) and “persuaded his nation to leave their own territory with all their forces” on a mission to “take over the whole of Gaul and rule it.” Geopolitically, “the Helvetii are closed in on all sides by natural boundaries”: the Rhine River on one side, separating them from the Germans, the mountain range separating them from the Sequani, and the waters of Lake Lemannus and the Rhône, separating them from the Roman province. We can break out of nature’s confines, Orgetorix asserted, since we “excel all others in bravery.” But Orgetorix never got out of (the future) Switzerland, betrayed by an informer and brought to trial. A ‘populist’ of sorts, as indeed Caesar himself had been and would continue to be, on his own road to kingship, Orgetorix escaped by summoning some ten thousand slaves and freedmen clients from throughout the country. He was soon hunted down and recaptured, dying by what might have been suicide.

But even so, “the Helvetii did not give up their efforts to realize their intention to migrate from their country.” In 58 B.C., with their Gallic allies, including the Boii (latterly the Bohemians or Hungarians), they planned a mission to occupy the territory of the Santones. But between that territory and Helvetia lay either the territory of the Sequani or the province of the Romans. Geographically, the route through Transalpine Gaul was the easier to traverse. News of this plan brought them to the attention of Caesar, “hastened to leave the city” of Rome and, “by the most strenuous marches possible…hurried to Ulterior [or ‘Cisalpine’] Gaul and arrived near Genava.” Repeatedly, Caesar will cite Romans’ excellent ‘intel,’ as we now call it, their “celerity,” their quickness to act in light of such information, and their energy in so acting. The surprised Helvetii assured him that they merely intended to pass through the Roman province, doing no harm. They asked permission to do so, which Caesar had no intention of granting, for several reasons. One concerns justice and memory. He “remembered well that the Helvetii had killed the consul Lucius Cassius, routed his army, and sent it under the yoke”—this, nearly fifty years earlier. That is, he “remembers” the event not from experience but from the histories he has read, and perhaps from the accounts he heard as a child. Romanness is mindful; Romanness remembers. Romans write histories. More immediately, knowing not only the plan of the Helvetii but their warlike nature, he doubts that such a people, with their “hostile attitude,” “would be disciplined enough to refrain from committing outrage against persons or property” as they passed through Roman territory. Romanness is mindful in more than justice and in memory but in prudence.

In his prudence, Caesar duly noted that his legion alone could hardly survive a battle with the Helvetii on their own territory. Temporizing, he told their emissaries that he would consider their proposal, that they should return at a set date for his answer. This would enable Roman reinforcements to arrive. Meanwhile, he set his soldiers to work building a long wall and digging a trench along it, placing outposts at intervals along these structures and fortifying them, “so that he could prevent the Helvetii from crossing over more easily if they tried to defy his orders.” When the emissaries returned, he cited “the custom and precedent of the Roman people,” which “did not allow him to let any people make their way through the Province.” Custom and precedent being defenseless in themselves, “he made it clear that he would prevent them if they tried to apply force.” This they did attempt, but his defensive measures prevented them from crossing the Rhōne.

This left the Helvetii with the alternative possible route, thought the territory of the Sequani. Geographically, this passage was too narrow to traverse without their permission, and that was not forthcoming. They asked an ally of theirs (Caesar calls him their “friend,” in the Aristotelian sense of a political friend), an Aeduan, Dumnorix, to serve as an intermediary, as he was “very influential among the Sequani,” owing to his “kindness and generosity to them.” [1] (His bond with the Helvetii was his marriage to the daughter of Orgetorix, the originator of their planned expedition.) Like his late father-in-law, Dumnorix wanted the kingship of his people “and was eagerly scheming for political change; thus he wanted to have as many nations as possible bound to him through his favors.” He agreed to the proposed diplomatic intervention and succeeded in winning both the Sequani’s and the Aedui’s consent to Helvetian passage into the territory of the Santones.

Well informed as always, Caesar learned of this and liked it no more than the Helvetii’s preferred route through the Province. In this, he displayed his prudential sense of geopolitical advantage. The Santones lived near the Province; Helvetian occupation of that territory “would place the Province in great danger with a warlike population, enemies of the Roman people, right next to land that was open to attack and very abundant in grain crops.” Again exhibiting Roman celerity and energy, “he rushed to Italy by long marches,” enrolled reinforcements and returned to Transalpine Gaul “by the shortest way through the Alps.” By June of 58, he had five legions poised across the Rhône from the Helvetii. Calling attention to Roman prudence again, he notes that before leaving for Italy he had installed his legate Titus Labienus as the officer in charge of the fortifications along the river. Labienus was a tribune of the Roman plebeians; Caesar’s political and military friendship with him betokens Caesar’s own ‘populist’ strategy in Roman politics. Caesar is the wiser Orgetorix; where the ambitious Gaul failed, he will succeed, both as conqueror of Gaul and, not so long afterwards, king of the empire he expanded far northward.

He attacked and routed the Tigurini, one of the four Helvetian tribes, along the east side of the Arar River (today’s Saône). This was the tribe that had killed Lucius Cassius and sent his army under the yoke. “Thus, whether it was by chance or by the design of the immortal gods, the part of the Helvetian people that had brought this immense calamity on the Roman people was the first to suffer punishment”; having been elected Pontifex Maximus, Caesar allows himself the occasional glance at Rome’s civil religion. And the occasional glance at his family: “Caesar was avenging not only a public outrage but a private one as well,” as “the Tigurini had killed the legate Lucius Piso, the grandfather of his father-in-law, in the same battle in which they had killed Cassius.” The Roman memory is long, and so is the reach of its justice.

Caesar had his soldiers built a bridge over the river in order to pursue the other Helvetii, who “were very disturbed at his sudden arrival.” They had taken twenty days to get across the river but Caesar, in his celerity—made possible by Rome’s superior civilization in the form of military engineering—got across in only one. The unpleasantly surprised Helvettii sent emissaries to him, and the head of the delegation argued as follows: make peace with us and we will go and stay wherever you say, but if you continue to wage war, “remember the Romans’ past misfortune and the warlike spirit the Helvetii had always shown.” Our virtue is bravery, not cunning—evidently a suggestion that Caesar’s surprise maneuver must have been some sort of trick. The emissary thinks and speaks like a citizen of Crete or Sparta as described in the opening of Plato’s Laws. Caesar replies that he does indeed remember the Romans’ past misfortune at the hands of the Helvetii, “and to the extent that the Roman people had not deserved what had happened to them, he was even more outraged.” You Helvetians were the tricksters, then, catching the Romans off guard by attacking them for no reason. And currently, they had attempted to trespass on Roman territory and had “rendered the lives of” Rome’s Gallic allies, the Aedui, Ambarri, and Allogbroges, “miserable.” As for your past victory, again speaking as Pontifex Maximus, with Roman auctoritas, “it was the habit of the immortal gods,” whose memories are even longer than those of the Romans, when they wished to take vengeance on people for a crime, to give them unusually good luck for some time and hold off punishing them in order to cause them even more pain later from the drastic change in their circumstances.” All this notwithstanding, Caesar exhibited another Roman virtue, magnanimity; he would overlook these acts of injustice if the Helvetii provided hostages (insurance against any treaty violation) and compensated the Aedui and the Allobroges for the damages they had inflicted upon them. The Helvetian rejected the offer, proudly announcing that the Helvetian way was “to receive hostages, not give them”—thereby illustrating the difference between Roman magnanimity and Helvetian hubris.

Preparing to continue the war, Caesar demanded the grain his Aeduan allies had promised for his troops and animals. He then learned something about the Aeduan regime. Their “highest official” admitted to him that the unofficial and real rulers of the Aedui were holding back the grain and making patriotic appeals to the Gauls to expel the Romans. The hapless man protested that “there was no way that he could gain control over these people,” and that in betraying their secret plan he was putting his own life at risk. The Aeduan regime was no ally of Rome, at all, and Caesar suspected that its head was Dumnorix, the Aeduan who had ties with both the Helvetii and the Sequani. Liscus admitted as much in a private conference, explaining that Dumnorix, “a man with singular boldness, armed with huge influence among the lower classes because of his generosity,” had obtained lucrative conflicts by intimidating all rivals, thereby “accumulat[ing] lavish means for bribery” and supporting a small private army. He hated the Romans because he calculated, as the husband of a Helvetian, that the Helvetii would support his ambitions for a kingship, while the Romans, if victorious, would reduce the influence he had amassed.

Caesar would have done just that, except that Dumnorix’s brother, Diviciacus, had long exhibited “the highest devotion to the Roman people, the greatest goodwill toward himself, and outstanding loyalty, justice, and moderation”; Caesar “was afraid that punishment of Dumnorix would strike Diviciacus to the heart.” The true Roman exhibits fides, trustworthiness. Moreover, to rule like a Roman, one must understand political friends and enemies alike, not only in their political ambitions but in their family connections. In their interview, Diviciacus tearfully confessed that he knew of his brother’s treachery, acknowledged that he had even undermined Diviciacus’ own position among the Aedui, but still begged Caesar not to deal with him “too harshly.” He asked this out of “brotherly love” and also because all the Gauls would assume that it was Diviciacus who had betrayed his brother to the Romans. In response, “Caesar took his right hand. He calmed him and asked him to stop begging. He said that Diviciacus’ friendship was worth so much to him that he would refrain from punishment for the outrage done to the Roman state and overlook his own hurt feelings in order to accommodate Diviciacus’ wish and requests.” He contented himself by bringing Dumnorix before him, laying out the charges against him, then letting him off with a warning and taking the precaution of “assign[ing] guards to Dumnorix so that he could be informed of what he did and with whom he spoke.”

Having thus assured himself allied support, he moved against the Helvetii. At the town of Bibracte he fought and won a “long and bitterly contested battle,” which resulted in Helvetian surrender with the exception of 6,000 men from the tribe of the Verdigeni, who fled across the Rhine into German territory. Caesar ordered their pursuit and capture, punishing them with death. As for the remaining Helvetii, he ordered them to return to their own territory after they rebuilt the towns and villages they’d burned. “He did not want the land they had left to remain empty; it was good land for agriculture”; without them on it, “the Germans living across the Rhine would cross from their own territory into that of the Helvetiii and thus become the neighbors of the Gallic Province and especially of the Allobrogres.” A Roman understands the need for geopolitical buffers.

The war finished, Caesar received emissaries from “nearly all of Gaul,” who offered congratulations on his victory. Although they knew he’d waged war for the sake of Rome, “the outcome had proven no less useful” to them. “The Helvetii had been extremely prosperous in their homeland, but they had left it with the intention to wage war on Gaul in its entirety, to establish their rule over it, and to choose, out of a great number of possibilities in the Gallic territory, whatever area seemed most suitable and fertile, turning all the other nations into tribute-paying dependents.” With Caesar’s permission, they requested a secret meeting amongst themselves, the outcome of which was a petition to Caesar, delivered by Diviciacus.

Caesar’s political friend explained that Gaul had many tribes but only two main factions, the Aedui leaders of one, the Averni of the other. With their principal allies, the Sequani, the Aedui had attempted to break the military deadlock by inviting the Germans into Gaul. “Then, when these wild barbarians got a taste for the fertile land, the way of life, and the wealth of the Gauls,” they brought over still more troops, which now numbered around 120,000. The Aedui and their client states had “lost their whole leading class, their whole council, the whole of their cavalry class” in war with this coalition, either in battle or as hostages. Even the Germans’ Sequani allies had had a third of their lands confiscated by order of the German king, the tyrannical Ariovistus. He had ordered them out of another third. “It would not be many years before all the Gauls were driven out of their own territory and all the Germans had crossed the Rhine.” Only Rome could prevent this.

Caesar assured them that he could and would. The Aedui were longtime allies of Rome. “Given the greatness of the empire of the Roman people,” he considered their distress “extremely shameful both to himself and to his state.” German expansion was also dangerous “to the Roman people,” given the unlikelihood that such “a wild and barbarous people” as the Germans would content themselves with the conquest of Gaul, only. Marauding German tribes had descended into the Italian peninsula before. To these threats to Roman honor and Roman lives, he added the character of Ariovistus, who had become “so proud and arrogant that his behavior was no longer tolerable.” His regime was tyrannical, the enemy of Roman republicanism. Moreover, “Caesar came to believe that he should take action against this threat as quickly as possible” because the Gauls who had talked with his own soldiers had frightened them with tales of German military prowess. “Panicked babbling” threatened to make cowards of them all, de-Romanizing them, undermining not only the Roman empire but the Roman regime that had cultivated the virtues by which Romans had won that empire, preeminently courage.

After Ariovistus refused to meet Caesar’s emissaries, Caesar called a meeting of his officers. As a citizen of the Roman republic, Caesar had studied the art of rhetoric, and he now exhibited it. He argued as follows: Ariovistus “would not reject either Caesar’s or the Roman people’s friendship,” once he had duly considered his proposals. “But if, driven by insane rage, he should start a war, what did they actually have to fear? Why had they lost trust in their own bravery or Caesar’s competence?” The Cimbrian and Teutonic tribes had in fact been defeated, decades earlier, by troops under the command of Gaius Marius. The Roman army had also put down a slave rebellion in Italy, winning a dangerous civil war. Given these victories, “it could be judged how beneficial firmness of courage is”—in contrast to the insane rage of the barbarian tyrant, which is no virtue at all. Indeed, the Germans had often been defeated by the Helvetii in their never-ending wars, and we just defeated the Helvetii. The only reason Ariovistus had rolled up his victories against the Gauls was that the Gauls were war-weary and because the Germans had surprised them. “His victory had thus been achieved by calculation and planning rather than bravery”—the same argument the Helvetian emissary had deployed against Caesar. “Though such a strategy could work against inexperienced barbarians” like the Gauls, “not even Ariovistus himself could hope that our armies would be fooled by it.” If any of your fellow officers conceal their fear “by pretending concern for the grain supply or the narrow roads,” you should understand that they are as arrogant as the Helvetii had been, “lacking confidence in their general’s ability to do his duty or else by daring to tell him how to do it.” As a matter of fact, Rome’s Gallic allies have already guaranteed the grain supply and he, Caesar, had mapped out a good route into German-ruled territory. His authority derives not only from his capability but his virtue: “Whenever armies had refused to obey their general’s orders, it was because of a setback when the general’s luck failed, or lese some crime had been found out and financial misconduct prover,” but “his own life had been shown to be blameless throughout, and his good fortune was apparent from the war with the Helvetii.” Having readied a just and reasonable peace offer, having exposed his enemy’s irrationality, having exhibited his own good fortune, owing to his own courage and prudence, and relying on his officers’ fides with respect to their commander’s authority and on the officers’ and soldiers’ courage—the virtue Gallic gossip about Ariovistus’ enormities had tested—it was now time to act. He drew the logical conclusion, a command to action: “move camp during the fourth watch of the coming night, in order to find out as soon as possible whether his soldiers were motivated by self-respect and duty or by cowardice.” However that may turn out, he still has his 10th Legion, “about which he could not have any doubts and which would in the future serve in the function of a praetorian cohort,” a just honor in return for their fidelity and courage. No worry of that, however, since “By the time Caesar had ended his speech, the attitude of all those present was marvelously transformed, and they were filled with the greatest enthusiasm and passion to start the war.”

Tyrants being moved more by the actions than by the words of others, Ariovistus, recovering his reason, now agreed to the meeting he’d earlier refused. With a precautionary guard, Caesar came to the enemy camp, offering an alliance. Reminding Ariovistus of gifts he’d received from Caesar and the Senate in the past and of the Romans’ firm alliance with the Aedui. The Aedui had enjoyed “a position of leadership” among the Gauls before their alliance with Rome. Rome had done nothing to ruin that position, it being “the habit of the Roman people to wish not only that their allies and friends were not deprived of anything that belonged to them but also that their influence, status, and honor were enhanced.” Germans too can enjoy such an alliance, if they desist from making war on the Aedui or their allies, return the hostages, and bring no more men across the Rhine. To this, Ariovistus replied that he crossed the Rhine at the invitation of the Gauls; the Gallic lands he ruled were granted to him by the Gauls; the Gauls started the war against him, and he won; he was prepared to renew the war if the Gauls offered war, but in any case, he had fought an exclusively defensive war. As to the Romans, he had arrived in Gaul “before the Romans did.” The Romans “were wrong in obstructing him in pursuing his rights.” He doubted the alleged firmness of the Roman-Aedui alliance, in view of the lack of mutual military support in recent wars. If it came to war between himself and Caesar and if he killed Caesar, “he would be doing a favor to many noblemen and leaders of the Roman people,” who disliked and distrusted the ambitious general, but if Caesar left and agreed to his “unlimited control over Gaul, Ariovistus would reward him on a grand scale, and whatever wars he wanted waged, he would carry them out for him with no effort or danger on his own part.”

Drawing upon Roman memory, preserved in Roman histories, Caesar denied that the Germans’ claim on Gaul predated that of the Romans, recalling the victory of Quintus Fabius Maximus over the Averni and Ruteni and 121 B.C. At the time, “the Roman people had forgiven them and neither turned their country into a province nor forced them to pay tribute,” unlike Ariovistus. The Senate had decreed Gallic freedom: “after it had been defeated in war, [it] was to live by its own laws.” This implies that the gradual conquest of Gaul the Germans were undertaking could have no legitimacy in the eyes not only of Caesar but of the Roman republic.

Sure enough, while this talk was going on, Ariovistus’ horsemen had been moving closer to the site, harassing the Roman troops. Ending the discussion, Caesar withdrew with his soldiers, making sure that a report of this conduct and of Ariovistus’ words circulated throughout his camp. “The army was fired up much more and inspired with an even greater keenness to fight.” Upon receiving another invitation to parley, Caesar declined to attend personally, sending emissaries instead, whom Ariovistus put in chains. This was a just casus belli. In September 58, the two armies fought along the Dubis River. Though outnumbered, the Romans won and the Germans fled, as did Ariovistus.

“Having, in a single summer, brought two very significant wars to a conclusion, Caesar led the army to winter quarters among the Sequani.” Leaving Labienus in charge, he then returned to Cisalpine Gaul where, as provincial governor, he presided over the judicial hearings—that is, returning to civil life in peacetime and the rule of justice under law, which must be secured before it can be practiced. Such is Roman gravitasi, seriousness.

The First Book of the Gallic War shows why a statesman like de Gaulle rested content with the historical memory of the Roman conquest while bitterly resisting the Germans. In his estimation, from antiquity to the midpoint of the 20th century, Germany never really abandoned its barbaric ethos. Despite its vaunted Kultur, German still remained the home of “sublime and glaucous monsters,” with a military elite that perpetually overreached itself because it lacked mesure. German thinkers often despised mere ‘civilization,’ contrasting it with that Kultur, and that, in de Gaulle’s view, typified the problem. By contrast, the Caesar of the Gallic War embodies a measured, balanced, civilized regime, exhibiting the classical virtues of courage, moderation, justice, and prudence, along with the crowning virtue of magnanimity. Frenc grandeur, as de Gaulle understood it, owed its origin to this Roman greatness, blended with the energy and independence, the passion for self-government, native to the Gauls and later refined by the influence of a Christianity both Roman and rightly ‘imperial’ or ‘catholic.’

Neither de Gaulle nor Caesar saw anything unrealistic about these virtues, as Machiavelli famously proclaimed, arguing instead for what he called virtù, which substitutes vulpine shrewdness for classical prudence and leonine rage for classical courage, eschewing justice and moderation, and ignoring magnanimity. Contra Machiavelli, the classical virtues lend themselves to mindfulness of what de Gaulle calls “the realities”: provisioning and organizing troops, forming alliances, seeking knowledge of shifting political and military alliances, knowing how to speak to military officers and soldiers alike. He does not show how to speak to civilians from patricians to plebs, although he indicates that he can do that, too; in this, de Gaulle was far more instructive. But he does show that military virtues can entitle the victors to rule an empire, if those virtues encompass a substantially wider range than a warrior people’s characteristic bravery and cunning. In the Gallic War, Caesar teaches Romanness to his readers, elevating the ambitious souls of those who study it with the most ardor to citizenship in Rome and to civilization in the world.

Note

The political friendship illustrated here is the friendship between equals. Political friendships or alliances may or may not be between equals; in Latin, the words for equal and unequal friendships are not the same.

Benardete on Plato’s “Philebus”

February 8, 2023 by Will Morrisey

Seth Benardete: The Tragedy and Comedy of Life: Plato’s Philebus. Chicago: University of Chicago Press, 1993.

An earlier version of this review appeared in Interpretation: A Journal of Political Philosophy. Spring 1997. Volume 24, Number 3.

In the Philebus “Socrates finally replaces the good with the beautiful in his summary of the goods.” In this, “Plato does not simply oppose philosophy to poetry and contrast reason with the indulgence of the passions; he has philosophy invade the territory of poetry and claim for itself what seems to be the indisputable domain of poetry.” Philosophy’s superiority to poetry “cannot lie in the neutral impersonality of its discourse” but in its ability “to tell a better story than poetry.” If “better” means, finally, more beautiful, then how does philosophy differ from poetry in kind?

Tragic poets evidently, and perhaps comic poets indirectly, tell stories “center[ing] around foundational crimes, crimes that reveal what must not be violated if either man is to be man or the city is to be possible”—as seen in Oedipus, as he wonders at the riddle of the Sphinx. “In light of what Oedipus has done, Oedipus has to cease to be what he is,” a king, a just judge of criminals. He is the criminal, and so must put an end to his own royalty. Benardete’s Plato answers that philosophy’s beauty is a beauty of the mind and its thoughts, not of the body and its actions, a beauty that reflects a “divide between man as man and man as political animal that poetry denies.” “Socrates caps the poets by telling a story about the impossible, since it is true that such radical abstraction from the body is impossible.” But that only makes it more beautiful, farther above the city, which “did not educate [the philosopher] either in its opinions or in philosophy.” [1] How then does the philosopher differ from the aesthete? He differs in that the most beautiful is also the truest: “there is a range of human experience that is incorrigibly false, and the recognition of this is known to the soul, which is always trying to divine where the true good for itself is,” and “hides from the enchantments of poetry.” Is, then, the beautiful the true good? In that case, Socrates has not exactly replaced the good with the beautiful.

This book consists of two main parts: a translation of the Philebus and Benardete’s commentary. Socrates recalls to Protarchus that Philebus, whose name means lover of youth, has claimed that happiness consists of enjoyment, pleasure, delight. He may be said to be a lover of a certain sort of beauty, but is it the bodily beauty of youth or the beauty or potential beauty of youthful souls? Or both? Socrates, whose name might playfully be said to mean ‘rule of wisdom,’ associates himself thoughtfulness, thinking, remembering. Who, then, is the true lover of youth?

Protarchus is taking over Philebus’ argument. His name means ‘first ruler’ or ‘foremost ruler,’ a name that may express the ambition of a sophist. Socrates says he initiated the dialogue in order to articulate and interpret what is the best of human possessions. His “way,” he says, is to throw his interlocutors into “perplexity.” When it comes to pleasures, Protarchus is a man who wants to have it all. Protarchus wants a life that combines pleasure and thought. Socrates argues that without knowledge one would not know one is being pleasured and that thought therefore outranks pleasure. Protarchus may be too optimistic about the ability to enjoy many intense pleasures, particularly sexual pleasures, while thinking (either at the same time or at many other times); as Yogi Berra said, “You can’t hit and think at the same time.” Pleasure, Socrates remarks, is “a complex thing,” as there are good and bad pleasures. One needs to select among them, which requires thinking prior to enjoying. The pleasure associated with falsehood differs from the pleasure associated with knowledge. But this leaves open the possibility that knowledge merely instrumental to pleasure.

He proceeds by ‘abstracting’ thought from pleasure and pleasure from thought, to see if either in its pure form is preferable. Without knowledge, one wouldn’t even know if one were being pleasured. There are pleasures of the soul as well as pleasures of the body, and the soul is the locus of desires, not the body. “Our soul at times resembles a kind of a book”; memories and sensations ‘write’ “as it were speeches on our souls,” while images are ‘painted’ on them. Souls with bad pictures painted on them love false pleasures, false because bad for the soul. Thus, the greatest pains and pleasures come to the wicked, who are ‘extremists.’ Powerful evils are hateful, weak evils ridiculous; hence “the entire tragedy and comedy of life.”

An archē is a ruling cause and also a cause that begins what it effects, a genesis. Socrates effectively debunks the name of Protarchus by distinguishing being from genesis in the sense that genesis is for the sake of being. But if genesis aims at a purpose, a tēlos, then Protarchus’ sophistry may well be a false beginning resulting in false wisdom, in unwisdom. Protarchus may not be a hateful tyrant, but he is a ridiculous thinker. Socrates argues that one should choose the “kind of life” that is closest to being, the life “in which there was neither joy nor pain, but thoughtful thinking as pure as possible.”

What would such a life be? Socrates divides the “science of learning” into two parts, a demiurgic part and a part “concerned with education and upbringing.” Demiurgic learning, learning about artisanship, production, aims at understanding the precise and worthwhile elements of the arts, namely, the arts of number, of measurement, and of weighing. All other elements of the arts consist of guesswork and of experiential knowledge. This means that some knowledge is purer or clearer than other kinds of knowledge, even as some pleasures are pure than others. Is there, then, a truest understanding, “that which is by nature always the same way.”

Protarchus easily grasps this point in the abstract but applies it in an unfortunate way. Asked if there is a truest understanding, an understanding that “is by nature always in the same way,” Protarchus mentions Gorgias’ opinion that rhetoric is the best art. He would like to combine demiurgic learning with right upbringing; that is, being a sophist, he wants saying something to make it so. While admitting that rhetoric is great in the sense of extensive, far-reaching in its effects, Socrates suggests that to be the best art an art must be pure, even if not great. Mind and thought are the most pure and beautiful things; “thought is a participant in the lot and portion of the good to a higher degree than pleasure.” Why? Let a man “speak rightly”: “Let him set down memory, thought, knowledge, and true opinion as belonging to the same species (idea), and then have him consider whether anyone would choose for himself to have or get anything whatsoever without them, let alone pleasure, regardless of whether the pleasure were the most extensive or the most extreme possible, which he neither truly opines that is enjoying nor altogether knows what experience he has undergone; and, in turn has no memory of the experience for any length of time whatsoever.”

Socrates does not say that thought is or brings about the most intense pleasure. While distinguishing thought and pleasure and subordinating the latter, he does not eliminate it. Pleasure is honey; thought is water. Mix them—otherwise, one will be ridiculously ‘pure’ (one might say ‘Kantian’), using the instruments of the divine science in the mundane world. The pleasures must be ‘filtered,’ so that none is admitted that will interfere with thought. But again, any blending requires numbering, measuring, and weighing, which means that mind be prior to pleasure. Measure is beautiful; there, Socrates says, “the power of the good has fled for us into the nature of the beautiful.” In that sense the beautiful “replaces” the good. The good consists of beauty, commensuration, and truth. Mind is more nearly akin to these than pleasure is. The philosopher’s way of life is therefore superior to the pleasure-loving sophist’s way of life.

Benardete comments that measure requires the ideas of the limited and the unlimited. The dialogue itself embodies these ideas. It begins, like many a narrative poem, in medias res and so has a ‘missing’ beginning. “We are forced to wonder…whether the unbounded Philebus does not represent something essential about philosophy, that it is an activity that cannot have a beginning or an end of a strictly determined kind, even though the philosopher always begins somewhere in the neighborhood of the true beginning of philosophy and end almost every question short of the answer he has set out to find. The philosopher’s own death or senility also cuts short his quest without affecting the unending life of philosophy itself.” Philosophy has two beginnings, the first cosmological—the quarrel of philosophers with poets concerning the status of myths—the other human, when Socrates turned away from the teleological physics that previous philosophers had offered as a replacement for myths. The uniqueness of the Philebus consists in its presentation of Socrates after his ‘turn’ not mentioning the city and almost not mentioning the law. “All of morality is out of bounds in the Philebus, and, whatever the human good turns out to be, it is not informed by any social virtues.” It might be supposed that philosophers will agree with Protarchus, since “pleasure as the good…seems to be the first deduction that speculative philosophy would make when it turned from heaven to the human things.” And indeed “all of morality is out of bounds in the Philebus, a dialogue in which the polis is “never mentioned.” “Socrates, then, has been put by Plato in the difficult position of arguing against pleasure without any of the weapons with which his discovery of political philosophy might have furnished him.” His Socrates responds by noticing a weakness in the ever-changing, shape-shifting, apparently characterless character of the sophist: he needs pleasure to be the answer to the question of what the human good is. He needs finality, even as he attempts to escape the attempted finality of the city.

The city’s laws treat human perplexity by answering questions with finality. “The dissatisfaction that Protarchus feels at the end of the Philebus must reflect the unfinishable character of any true philosophical question, but it cannot represent the true state of the issue of the human good, for that issue must be settled once and for all if the philosopher is not to be in doubt about the good of philosophy as the human good. The argument of the Philebus must come to a nonarbitrary end…while it opens up everything else.” As Socrates remarks, human pleasure is double: tragic or comic. But tragedy or comedy, alone or in combination, cannot grasp the truth. “Philosophy must be by itself the truth of comedy and tragedy and the good of human life,” else philosophy collapses back into poetry. Philosophy, then, is a way of life, as “Socrates stands not just for thinking in all its purity but for the effort to think as well.” The moral-political life represents a ‘third way,’ independent of either philosophy or the life of pleasure.

Although his name means first beginning, Protarchus fails to achieve such perfectly free self-determination, as certain limits are inevitable in any life. Consider, for example, the meaning of his name. Despite it, he likely didn’t give it itself to himself, as “no man gives to himself his first name.” (For example, a journeyman professional wrestler named George Wagner had to rename himself, start calling himself ‘Gorgias George,’ before he could achieve fame and fortune as ‘The Toast of the Coast.’) Even “self-determination of this most elementary kind is not his.” The desire to maximize pleasure and thought simultaneously is utopian, as hedonism’s limit is the thoughtlessness that precludes knowing you’re having a good time. “Any hedonistic calculus must…devise a scale on which pleasure can be set.” But “the licentious cannot enjoy their own states since by definition they are not in a state they can identify, for otherwise they would be under control.” They preclude themselves from any rightful measure.

The demarcation set upon the moral-political man is Mardi Gras, the feast of fools, the purgative elevation of lords of misrule. As for the philosopher, “To be silly is a privilege of the wise on holiday.” Not only is hedonism “a funny form of idealism”, which conceives pleasure as a kind of universal with many particulars that ‘participate’ in it, but each of the other ways of life has its own funny form of idealism: the too-political man, whose desire for self-sufficiency forever contradicts his real dependence on others; the (in a sense) too-philosophic man, Socrates, whose life delineates the limits of philosophic inquiry and who needs Plato’s ‘poetic’ rescue.

In Protarchus, the attempt to mix pleasure and thought yields a political sort of soul, but one of the potentially the most dangerous type. As a matter of fact,”Protarchus is more eager to win, or at least not to lose, than he is interested in pleasure.” (Perhaps his praise of the hedonistic way of life is an attempt to soften the souls of would-be rivals for rule, of making them compliant subjects.) A rhetorician unbound by the laws, an apolitical-political man, tends toward tyranny. Unlike youth-loving Philebus, he secretly craves to be honored more than he seeks to be pleasured. Socrates cannot deal with him as he deals with the respectable but wavering Crito, or as the Athenian Stranger deals with his sober interlocutors. Socrates must convince Protarchus that there are many pleasures, and that thought is needed to sort them out and rank them. Socratic knowledge of ignorance thrives when its opponents concede that pleasure is heterogeneous because then one must choose on the basis of truth, which Socratic inquiry is uniquely suited to undertake. Protarchus needs to want a science of pleasure. Yet “he does not want to believe that the perfection (telos) of life consists in perplexity. A life of eidetic analysis is not a life for him.” But desire belongs first of all to the soul, not to the body, and “soul from the start is a structure of question,” proto-philosophic not proto-hedonistic.

Recalling the stern and pious laws of the pious, Benardete observes that the philosopher launches his “second sailing,” his philosophic quest, after seeing that the first sailing, on the winds of divine inspiration, gets one nowhere nearer the truth, and that a new effort—not exactly sailing but rowing, using one’s own powers—is necessary. “Socrates stands not just for thinking in all its purity but for the effort to think well”; as such, he guards himself against sophistic blandishments and, in his dialogues with fellow citizens, prepares (a very few of) them for sterner stuff, as well. Protarchus is well beyond the first sailing, beyond public opinion, at least in his own mind (although if he practiced the rhetoric he preaches he would find himself dependent upon the opinions of the many, the opposite of free). He is not yet at the second sailing, in that he does not know his own true powers or his own true weaknesses. He wants moral certainty without the morality; he does not want to know what he does not know. Socratic “freedom from the gods and other men” wants very much to know its own ignorance and thereby arrives at a certainty concerning the human good denied to quest-for-certitude, moral-political men and mindless hedonists. “However different pleasure and thought might be, Socrates presents both as a state and condition of the soul with the causal power to render human life happy.” But the pleasure he is talking about isn’t the bodily pleasure Philebus wants and Protagoras professes to want and to teach the likes of Philebus how to reach. For his part, Socrates inclines to teach that “whatever is impossible is not good,” that whatever eidetic analysis brings forth, a “cosmological constant” will defeat “whatever combination of elements eidetic analysis came up with that went beyond the real.” After all, “if the good and the real do not coincide, then one might as well choose to dream one’s life or give up reason,” become a misologist. “If, however, the good sticks to the real, the first good is knowledge, and moral virtue is largely irrelevant, particularly if moral virtue includes piety, which can be only an opinion about the gods and their providence.” This is where self-knowledge comes in, as “self-knowledge, Socrates implies, is an exact knowledge of one’s own goods.”

That the life of reason is not without its problems—the problem of the one and the many being perhaps the foremost among them—does not of course escape Socrates’ notice. In terms of the life of philosophy, this is the problem of how to choose rationally the life of reason, of how to know in advance that the reasoning life is best. It is settled practically by providence or necessity, which actually may be unprovidential or random, even if very fortunate. As Benardete puts it, Socrates “can choose the life of philosophy, but he cannot choose Socrates’ life of philosophy, which shapes up as he goes along and becomes good.”

Some souls simply do not incline to satisfied belief. “To introduce gods into human life is to make too much of human life. It is to give oneself airs.” And so “Socrates rejects with a laugh the entire basis of Antigone’s nobility.” Obviously, the philosopher does more than laugh, else there would be no distinction between a philosopher and the village atheist. “Self-knowledge, Socrates implies, is an exact account of one’s own goods”; lack of self-knowledge is more comic than tragic. The human soul by nature does not rest content—if it could, the purposeless pleasures of hedonism would suffice—nor can it never rest or “simply postulate a goal outside itself” that gives the soul no taste of its own goodness. To recognize this is to abandon “the psychology of pleasure and pain” and (what finally mirrors that psychology?) the hopes of reward for the just and pious. The truth the philosopher uncovers is “the truth of our perplexities and their necessary structure,” which is not a pleasurable truth, although it is good for the soul to recognize it. Few souls bring themselves to live happily according to this disenchanted truth.

Note

In the Republic, Plato tells “a story that solves the political problem once and for all by showing that it is impossible”—that is, that there is no human nature that is born to rule” except for philosophic souls, who don’t want to rule. “Philosophy alone can give a true account of the Cave because it starts from that element in the Cave that is connected, however tenuously, with the light.” That is, Socratic or political philosophy starts from the opinions of citizens, in principle open to reconsideration in light of reason, thought governed by the principle of noncontradiction. Philosophers stumble if they begin by gazing at the heavens in an attempt to understand nature directly.

How the American Founders Understood Religious Liberty

February 1, 2023 by Will Morrisey

Vincent Phillip Muñoz: Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses. Chicago: University of Chicago Press, 2022.

Because most judges and scholars today have no sense of the natural-rights foundation of the United States Constitution, they have for the most part made a hash of the legal right to freedom of worship and the prohibition of religious establishments. “We no longer understand…what the Founders meant when they declared religious liberty to be an ‘inherent,’ ‘natural,’ or ‘inalienable’ right” and, since the Founders considered government as rightly intended to secure that and other such rights, “we” no longer understand the Constitution as written.

In his task of recovery, Vincent Phillip Muñoz proceeds cautiously, illuminating the meaning of the Free Exercise Clause and the Establishment Clause insofar as the Founders explained them, then consulting their writings on natural rights themselves to construe those dimensions of meaning not made explicit in the founding documents. Additionally, the church-state provisions of contemporaneous states’ constitutions provide insights into what the Framers of the U. S. Constitution were likely to have been thinking. Some of the vagueness of the Bill of Rights owes to the fact that statesmen at the time already ‘knew what they were talking about,’ and didn’t need to elaborate their meanings to one another. Another reason for proceeding cautiously, indeed slowly and with patient repetitions of points previously made, is that Muñoz hopes to influence today’s judges and Constitutional scholars; typically, they have no background whatever in natural-rights philosophy, so writing for them is rather like lecturing to college sophomores. Clarity and reinforcement, clarity and reinforcement. His “new approach to the First Amendment Religion Clauses”—new to this generation because faithful to the Founders—takes a lot of careful explaining to members of such an audience, set in their own several interpretative ways.

The first of the book’s three parts concerns “the Founders’ political philosophy of religious freedom”; Part Two addresses the original meanings of the Religion Clauses and Part Three offers an originalist construal of those clauses based upon the doctrine of unalienable natural rights, which the Founders’ more or less unanimously upheld.

The Founders considered religious liberty to be a natural right of all human beings, “not just white men,” as some of our contemporaries never tired of asserting in their efforts to seize rhetorical advantage over their political enemies. A clear example of this conviction was Virginia’s 1776 Declaration of Rights, drafted by George Mason and amended according to a recommendation proposed by James Madison. Where Mason had religion “toleration,” Madison had “full and free exercise” of religion—this, on the grounds that toleration implies a right granted by a government, not a natural right endowed by God, inherent in human individuals as such. The Virginia Declaration “mark[ed] the official beginning of the new nation’s commitment to religious freedom,” inasmuch as Virginia’s language was included in the preambles to eight of the twelve state constitutions drafted between 1776 and 1786. “Only South Carolina failed to recognize the right of religious liberty” and, “not coincidentally,” became “the only Founding-era state to erect an official religious establishment.” And even South Carolina changed its ways, inserting a free exercise clause in 1790. Connecticut, which had no declaration of rights, instead enacted a statute securing “the Rights of Conscience in Matters of Religion,” restricting these to persons “professing the Christian Religion,” making it “the one Founding-era state after 1790 that clearly limited freedom of worship to Christians.”

This doesn’t mean that all states refused to impose restrictions on the civil rights of non-Christians or non-Protestants. Some did. It is “the failure to appreciate the Founders’ distinction between natural and acquired rights [that] has led some to conclude—mistakenly—that the Founders limited religious freedom only to Christians or even just to Protestants.” But it is one thing to affirm a natural right to worship (or not to worship) as one’s conscience dictates, another to extend the civil right to hold public office or to vote. One deduces the right to worship from the laws of nature and of nature’s God; the community derives civil rights from the political process, from the consent of the governed as determined by the regime—in the case of the American states, republics of one sort or another, none of them monarchies.

If religious liberty is “a natural right possessed by all individuals,” what does it mean to hold that right to be “inalienable”? All men are created equal in (among other matters) “their natural dominion over their own lives,” their right to govern themselves. They are, typically, competent to the tasks of self-government, and those tasks are humanly possible to perform. Given the unfortunate propensity of many individuals to violate other individuals’ natural rights in the hope of aggrandizing themselves, human beings first enter into a civil society aimed at mutual respect for one another’s natural rights; this “compact” is, as Madison puts it, “implied or presumed,” not written down. The United States has taken the further step to agree ‘in writing’ to “a Government over them.” As Muñoz puts it, “the original compact exists among all the individuals who are parties to it, rather than between the government”—which did not exist, yet—and “the people.” The people’s subsequent institution of a government determines the regime that will rule them. The sovereign people institute the regime-forming laws, the ‘constitutional’ laws, which are then ratified (in America’s case) by the people in the persons of their representatives within each state. Following John Locke, Madison holds that “unanimity establishes (and then simple majority rule governs) the initial [civil] society; constitutions, however, can legitimately empower one person, a few, many, or some combination of those” in the subsequent political order, the ruling offices, institutions, forms of the regime. “Unanimous consent to the original compact is required because all individuals are naturally free,” but majority rule suffices when a subsequent government’s design “actually secure[s] the ‘general good,’ understood first and foremost as the liberty of the naturally free and independent individuals who form the social compact.” That is, either “the consent of the governed alone is not sufficient to legitimate political rule,” or consent itself means rational assent, assent that accords with the laws of nature and of nature’s God. Insofar as the government protects my rights, I assign to it the guardianship of my natural rights, but if the government fails to do that, I remain entitled to act to enforce them myself, up to and including the revolutionary act of overthrowing the delinquent government. That is, Americans haven’t so much as surrendered their natural rights to the government they have surrendered the power to enforce them so long as the government is doing that form them, and that surrender, so-called, is revocable if the government fails to secure their rights or, worse, itself violates them. We provisionally suspend our right to the “how”—to enforcement—in order better to secure the “what”—the right we want enforced reliably and impartially.

Even so, “individuals do not transfer authority over every right when they enter the social compact,” let alone frame their government. Inalienable rights are “those over which individuals cannot, and hence do not, grant the state authority.” Such is the right to free exercise of religion, as “each individual must fulfill his own obligations to God,” which have nothing to do with his obligations to his fellow men in the social compact, let alone to any government of men, even one of, by, and for the people. Government, indeed, “possesses no legitimate authority to determine what constitutes the obligations we owe to God, how we fulfill them, or whether we fulfill them at all,” except if we disturb the public peace or disturb others in their own religious worship (thereby violating natural rights the government is and can be designed to secure). “The absence of governmental authority to hurt, molest, or restrain individuals on account of their religious worship, beliefs, or affiliation is the very core of the Founders’ understanding of religious freedom.” “Removing the salvation of souls from the legitimate purposes of government by denying governmental authority over the exercise of religion as such marks a revolution in political philosophy and political authority.”

Muñoz rightly stipulates that “the Founders understood the natural right of religious liberty to be categorical but not unbounded.” They intended to guard “religious worship as such”—meaning that the Founders distinguished outlawing a practice “on account of its religious character” from “enacting a general prohibition that incidentally outlaws a religious practice.” You may practice the Aztec religion but not to the point of sacrificing a virgin to the Sun God, since the sacrifice would violate the virgin’s inalienable right to life. More generally, “to have a right to do X does not imply that one can do anything to secure, enact, or practice X,” but only the right to do those things “in a manner consistent with the law of nature.” Even in the state of nature, such moral restraints apply, inasmuch as “God endowed man with rational faculties…through which man can discern both his interests and his duties.” If God hadn’t done that, who would think of entering into civil society in the first place? “The law of nature sets boundaries on the exercise of a natural right”; liberty “does not extend to actions that injure another.” In Jefferson’s words, liberty “is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others.”

Despite Tertullian’s rhetorical question, “What has Athens to do with Jerusalem?” the Founders “appealed to both reason and revelation” as “sources of knowledge they held to be compatible and reinforcing” as foundations of “their political thinking about religious freedom.” In his “Bill for Establishing Religious Freedom in Virginia,” Jefferson argued, following Locke, that “the opinions and beliefs of men depend not on their own will, but follow involuntarily the evidence proposed to their minds,” which “Almighty God hath created” free. “Coercive force,” by contrast, “can lead a man to profess disingenuously a belief or an opinion, but it cannot create inner conviction.” The Virginia legislature eliminated the Lockean determinism but kept the natural right of religious freedom, recognizing that “lawmakers who legislative beliefs…attempt to do what cannot be done”; nor should it be done, even if possible, since “individuals cannot and thus do not cede such authority to the state,” the right to determine one’s own beliefs being inalienable. Government does have “legitimate jurisdiction over actions,” for which individuals, having free minds, can take responsibility. (It might be added that Christianity teaches something parallel to Locke’s philosophy, that consent to the truth of religion occurs because the Holy Spirit enters into and convinces the otherwise wayward human mind, an act of God that does nothing if not propose evidence to that mind, as Saul the Persecutor learned just before becoming Paul the Apostle. A Government superior to that of the Roman Empire had intervened.)

In his “Memorial and Remonstrance against Religious Assessments,” Madison argued in a manner similar to Jefferson but with a different emphasis. He pointed to men’s duties to God more than their rights against one another. To be sure, “our duties to God and the manner in which we discharge them must be directed by reason and conviction, not force or violence,” but we know those duties only by reason—specifically, the ‘argument from design,’ whereby we can reason from the facts of nature to the existence of nature’s God. “Taken together, these capacities for reason and freedom allow men to be self-directed moral agents, not unreflective slaves of instinct or passion” who might very well rightly be ruled by force. This duty to God is the basis of the right to religious freedom, not only because “force simply cannot produce belief” but because the type of worship we owe to God is free worship and our obligation to God is prior to any obligations to men. Given “God’s superior ability to reward and punish,” it would be stupid to think otherwise. “What we have here,” Madison wrote, “is a right towards men” and “a duty toward the Creator.”

Whatever may have been the private religious convictions of Jefferson and Madison, the New England Baptist minister Isaac Backus agreed with them. Given “the individual’s election by God’s mysterious grace,” “only the individual who has experienced the ‘internal call’ of the Holy Spirit” can truly evangelize on God’s behalf. As he aphorized, “God will have no pressed soldiers in his army.” Backus, with his fellow Baptists to this day, thus rejected infant baptism and opposed “all forms of state authority over religion.” “Civil rulers are so far from having any right to empower any person or persons, to judge for others in such affairs,” he affirmed, “and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction from being injured or interrupted in the free enjoyment of this right, under any pretense whatsoever.” Nor were these strictures exclusive to Baptists. They were held across every religious denomination, and President Washington, in his justly celebrated letters to each of the major denominations in the United States (most famously, to the Jewish congregation at Newport, Rhode Island), enunciated the same principle, in his case on the basis of natural right. “Reason and revelation were understood to be complementary sources of knowledge, including of the truth of natural rights political principles.”

While unanimously endorsing religious liberty, members of the founding generation sometimes disagreed on the question of the separation of Church and State. Patrick Henry, and even Washington himself, initially, advocated taxpayer funding of religious ministers and on the imposition of religious qualifications for political and civil rights, including the right to hold public office. In Virginia, this brought Henry and Washington into a dispute with Jefferson and Madison over “the extent to which” the right to religious liberty “limited democratic governance and whether it was politically prudent for government to support religion directly.” Both sides understood taxpayer support of religion as differing from an establishment of religion, which means the establishment of a state-controlled church, as for example the Church of England. The state legislatures of Maryland, Massachusetts, and New Hampshire “did not understand the freedom of conscientious worship to preclude compelled financial support of religion,” and New Jersey, Pennsylvania, North Carolina, Georgia, and South Carolina also imposed such taxes, although they also exempted conscientious objectors to the practice. The Supreme Court would later associate the Constitutional ban on religious establishments with a prohibition against taxpayer funding of religion, but “that connection is not immediately evident from the texts of the Founding-era state declarations of rights and constitutions.” And with respect for religious tests for political office and several other civil rights, for some time only Virginia had none.

Part of the dispute consisted of “a political disagreement over the prudence of governmental utilization of religion.” Those who favored government supports for religion justified them not in terms of some imagined authority “to pursue the salvation of citizens’ souls or piety for its own sake,” but for the achievement of “otherwise legitimate civic ends,” such as “moral education consistent with the preservation of the public peace”—rather along the lines of arguments advanced by Paul the Apostle. In a bill proposed in 1784, Henry contended that “Christian knowledge” “helps foster among the people the virtues that republican government requires.” Massachusetts Supreme Judicial Court chief justice Theophilus Parsons agreed, ruling in an 1810 case that objectors to state funding of religion “mistake a man’s conscience for his money.”

Against this position, Madison advanced a ‘slippery slope’ argument: “Who does not see…that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?” Henry’s bill should cause Virginians “to take alarm at the first experiment on our liberties.” Even worse, “religion did not need government” to nurture moral character; government support rather tends to corrupt than to strengthen religion, doing nothing to save government from corruption by the means of religion.

Getting down to the language of the First Amendment itself, Muñoz quite reasonably supposes that both the Free Exercise Clause and the Establishment Clause were intended to translate the natural right to religious freedom into the Supreme Law of the land, making that natural right a civil right, as well. The Free Exercise Clause instantiates the natural right directly; the Establishment Clause instantiates it in a more complex way, by prohibiting the national government either from making a national religious establishment and from making any law concerning state religious establishments.

The Bill of Rights itself was adopted “to address an immediate political problem,” namely, the anti-Federalists’ continued opposition to the newly formed federal government. The absence of a Bill of Rights was one of the most frequently made criticisms during the ratification debate, and the resentment didn’t evaporate after ratification. “The fear of a national establishment was part of the Anti-Federalists’ more general concern that a country as large as the proposed United States could not remain free under a set of uniform laws”—as per Montesquieu’s claim that republics must remain small, lest they suffer the fate of the Roman Empire under the Caesars. They did not necessarily object to state religious establishments because “on account of their smaller size and greater homogeneity, [states] were the natural home for republican moral education.” (They objected to a national banking system but supported state banks on the same ground of small-state republicanism.) “Most anti-Federalists were not against religious establishments per se; they were for republican localism.”

In drafting the Establishment Clause (and the Bill of Rights generally), Congressman James Madison took the lead in the first Federal Congress. During the floor debate, Madison said that “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” The states would be left alone, in that regard. However, neither he nor any of his colleagues “identif[ied] with any sort of precision what an ‘establishment’ of religion was,” although Madison did indicate that the clause responded to the fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion, to which they would compel others to conform.” The House-Senate Conference Committee added an important nuance: the phrase that Congress shall make no law “respecting an” establishment of religion. This, Muñoz plausibly suggests, precludes not only a national religious establishment but denies Congress the power to make laws restricting state establishments. Politically, the resulting language satisfied all sides in the debate. “No constituency existed in the House to demand that the limitations placed on Congress be precisely defined,” and so the language remained imprecise.

Neither do the records of the First Congress give us a precise definition of the free exercise of religion. There is no reason to imagine that Congress abandoned the universal understanding of religious free exercise as “an inalienable natural right, possessed by all individuals, to worship according to conscience.” There was some debate over whether a clause should be inserted protecting the right of conscientious objection to taxation supporting churches or to military service, but this was removed by the Senate, then the guardian of states’ rights. Free exercise of religion evidently did not “include the right to exemptions from generally applicable laws,” that is, laws imposed on all citizens for nonreligious reasons, such as the inculcation of moral virtue or the manning of a well-organized militia.

The United States Supreme Court has at times exploited the broad language of the Free Exercise and Establishment clauses to give them whatever meaning current ideology, as held by the majority of justices, may favor. Muñoz proposes a more disciplined approach, which he calls the “text and design” or “design originalist” approach to construing the Constitution. “When the text articulates an abstract principle, we necessarily must ask: Whose understanding of the principle ought to guide a constitutional construction?” Shall it be the judges’ own opinion or shall judges “attempt to uncover how the principle was understood at the time of its adoption”? Muñoz’s “design originalism” looks at the meaning of the constitutional provisions that accords with the definitions of words and the meanings of “phrases, grammar, and syntax that characterized the linguistic practices of the contemporaneous public” along with “the ends or purposes of the textual provision in question within their historical context.” With respect to free exercise of religion, this points to the Founders’ stated intention to defend an inalienable natural right that exists prior to any government or indeed any civil society, a right retained after such a society and after whatever government rules it may be founded. “The nature of religious freedom itself does not allow individuals to give authority to government over it”; ergo, “the state lacks jurisdiction over religious exercises as such.” As stated above, “as such” means that the state may still enact legislation that incidentally restricts the natural right to free exercise “in pursuing otherwise legitimate ends,” such as securing other natural rights. “All natural rights have natural limits.” Religious practices “that trespass the law of nature” may and should be prohibited by government.

Regarding the meaning of religious establishment, the example of South Carolina, which had one, is instructive. The 1778 South Carolina Constitution provided that “The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.” The definition of Christian Protestantism included monotheism, belief in “a future state of rewards and punishments,” the public worship of God, the truth of the Christian religion; the divine inspiration of the Bible, and the lawful duty “of every man being thereunto called by those that govern, to bear witness to the truth.” Churches professing these doctrines were entitled to apply for a charter of incorporation, enabling it to own property as a corporate body and “to prosecute and protect its own rights in courts of law.” Establishment also enabled a church to use the state’s power to collect financial obligations the church imposed on its members. For its part, the State of South Carolina gained the right to regulate the established churches, including articles of faith and rules for the selection of ministers.

Eventually, such state establishments came under critical scrutiny throughout the country. “The subdelegation of the state’s coercive power to churches, or to any other body, subjects the people to rule by agents other than those to whom they have consented,” thereby “depriv[ing] the people of the [natural] right of self-government.” It is in effect a form of taxation without representation. That is, the principles animating the federal Constitution began to pervade the minds of citizens as they considered the duties of the states’ governments.

Since “the natural rights approach” Muñoz so cogently advocates “does not correspond to any existing jurisprudential framework,” “consistently produc[ing] neither liberal nor conservative results as those classifications are usually understood,” he next offers some examples of how that approach would determine the outcomes of several important cases brought under the Religion Clauses. Generally, “the natural rights approach is more democratic than leading originalist and nonoriginalist alternatives, while at the same time it imposes a more thorough and categorical form of restriction on state action.”

In considering the 1879 case, Reynolds v. Sims, brought by George Reynolds, a member of the Church of Latter-Day Saints who maintained that the Morrill Anti-Bigamy Act violated his religious right to polygamy, Muñoz would have the justices ask whether the Act “explicitly targeted religious marriages” or instead banned bigamy and polygamy on non-religious grounds. In fact, the Court did ground its upholding of the federal law on just such grounds, and so the “polygamy ban would have been found constitutional under the natural rights approach.

Muñoz elaborates an important point here. Such decisions are binary. “In the Framers’ natural rights understanding, the rights of religious free exercise cannot legitimately be evaluated in light of or ‘balanced’ against ‘competing state interests,'” as the Supreme Court justices did in Lukumi Babata Aye, Inc. v. City of Hialeah (1993). “The state can never have a constitutionally compelling interest that allows it to suppress religious exercises as such, because such suppression per se always exceeds the state’s jurisdiction.” Similarly, in the famous case of Engel v. Vitale (1962), in which the Court struck down a mandated, government-written prayer at the beginning of the school day, the natural-rights approach would have upheld the decision, not on the basis of Justice Hugo Black’s metaphor of the “wall of separation between church and state” but on the grounds that the public school had “exercised jurisdiction over a religious exercise as such.” “Lacking jurisdiction over religious exercises, no government body or political subdivision may make prayer an official part of its meetings”—this, despite the fact that the Founders themselves did exactly that. In this (rare) instance, the Founders failed to abide by the strict sense of their own Constitution.

Some but not all religious tests for public office can be licit. In McDaniel v. Paty (1978), the plaintiff challenged a provision of the Tennessee Constitution that blocked “Ministers of the Gospel” from serving in the state legislature on the grounds that they “ought not to be diverted from the great duties of their functions” by mere government service. In this provision, the State of Tennessee “avoided exercising jurisdiction over religious exercises as such” (emphasis added). “The same authority that would allow the state to exempt religious ministers from civic obligations such as paying taxes or military service also would allow the state to deny ministers the enjoyment of specific civil privileges.” Similarly, in adjudicating claims of exemption from military service, draft boards may “examine the sincerity of the petitioners’ beliefs, but not their religious veracity.” More generally, free religious exercise registers the natural, inalienable right of “the individual’s sovereignty over his or her worship according to conscience, but “the nonworship elements of religion…are not inalienable in the same way,” and may be restricted by the state “when pursuing otherwise constitutional policies.

As mentioned earlier, a state establishment of religion exists when “government exercises the functions of an institutional church, including the regulation of internal church matters such as the content of doctrine and the selection of ministers”; a church establishment exists when government delegates its “coercive authority to churches, especially in matter of taxation and financial contribution.” For example, in Locke v. Davey (2004), which challenged a Washington state policy offering scholarships to college students except those majoring in theology, the Establishment Clause would neither mandate the exclusion of such students nor prohibit it. “State legislators could have decided that it was not in the state’s interest to fund residents to acquire more theological knowledge or, as the state contended, that the provision was necessary to comply with the Washington State Constitution.” That does not run counter to the Establishment Clause. “The natural rights approach holds that the government’s purposes do not include saving citizens’ souls.” This means that when the Founders funded military and legislative chaplains, they violated their own natural-rights principles.

The “wall of separation” metaphor is too extreme. The natural-rights approach “would allow government to fund religious individuals and institutions as an instrumental means to further otherwise legitimate civic interest, provided that a nexus exists between ends and means and that state actions to not establish jurisdiction over religious exercises as such.” In Everson v. Board of Education (1947), in which the plaintiff challenged state-funded reimbursements to parents who paid their children’s transportation costs to and from public or Catholic schools, “the state clearly [had] an interest in facilitating the safe transportation of children to and from school, no matter the school’s religious affiliation.” The “wall of separation” was inapt. More, “it is permissible…for the state to recognize the religious identities of citizens, and even to nurture and advance the religious character of the people for the purpose of inculcating the moral character that sustains a constitutional republic.” Thus, in Stone v. Graham (1980), the Court wrongly struck down a Kentucky law requiring the Ten Commandments to be posted in public elementary schools, if the purpose of the law was “to foster the moral character requisite for democratic citizenship” rather than “to foster religious observance for religious reasons.” The same goes for religious displays such as creches on public property.

The natural-rights approach “focuses on the jurisdictional limits of state power—a consideration that is all but ignored by existing approaches to church-state jurisprudence, but central to the Founders’ understanding of religious liberty.” “The approach looks only to the subject matter, not the effect, of legislation,” relieving judges of the self-imposed burden of policy analysis. “Judges would enforce jurisdictional boundaries” between governments and their citizens’ natural rights, doing their part in securing those rights, which is what the Declaration of Independence says government is for, guided by “reasoned judgment affirming a moral order that we discover, not create,” in turn leaving such creation to God, who is better at it than judges are.

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