Frank Goodnow: “The American Conception of Liberty.” In The American Conception of Liberty and Government. The Colver Lectures. Providence: Brown University, 1916.

Originally published by Constituting America. May 29, 2013.

 

The best-remembered first-generation American Progressives were Woodrow Wilson and John Dewey. Unlike his fellow political scientist Woodrow Wilson, Frank Goodnow never won an election for public office, having spent his career almost entirely in academia. Unlike John Dewey, another professor, Goodnow wrote no books that have been widely read beyond his own generation. Yet he stands as an important figure in the Progressive movement, particular with respect to his championing of Progressivism’s most distinctive institutional feature, the administrative state.

Born in 1859 in Brooklyn, New York, Goodnow received his advanced degree not in history or political science but in law from Columbia University, which hired him to teach administrative law in 1882. “Political science” as an independent academic discipline barely existed in the United States at that time, but Goodnow and such like-minded academics as his colleague John W. Burgess at Columbia and Woodrow Wilson at Princeton established it as such in the last two decades of the nineteenth century, founding the national professional organization of political scientists, the American Political Science Association, in 1903. Goodnow was its first president. He ended his career as president of the Johns Hopkins University–the first American university to emulate the great German research universities not only in their emphasis on scholarly research and graduate studies (as distinguished from education of undergraduates) but also in its promotion of German political philosophy in opposition to the principles of John Locke, Montesquieu, and the other philosophers whose ideas had animated the American founding. At this time university presidents enjoyed greater prominence in American public life than at any time before or since; Nicholas Murray Butler of Columbia was a well-know voice nationally, and of course Wilson vaulted from the presidency of Princeton to the governorship of New Jersey and the presidency of the United States in the space of about three years. Obscure today, Goodnow nonetheless exercised a decisive influence on American political history. If, as he writes in “The American Conception of Liberty, ” “We teachers are in a measure responsible for the thoughts of the coming generation,” Goodnow helped to shape the thoughts of not only the next generation of every generation of American citizens up to and including that of President Barack Obama. Universities are now conceived as engines of social and political progress, and many if not all American educators more or less self-consciously thing as ‘progressives’ of one sort or another.

Following their German preceptors, American progressives committed themselves to the rejection of the laws of nature and of nature’s God as the source of moral and political right. Instead, they looked to ‘history’—defined as the course of all events, said to be unfolding rationally toward a culmination or ‘end of history.’ Whether the end of history was understood to be a constitutional monarchy (as in Hegel), worldwide communism (as in Marx), social democracy (as in Dewey), or the dominance of a ‘Caucasian master race’ (as in Gobineau and other ‘race theorists’), all past and present human thoughts and actions are judged good or bad, ‘progressive’ or ‘reactionary,’ insofar as they do or do not contribute to mankind’s advance toward that end. What is more, the course of events or ‘history’ was held to unfold in accordance with scientifically discernible laws of development—not unlike Darwin’s laws of natural selection, which had ‘historicized’ natural science.

This explains why Goodnow’s critique of the philosophy behind the American founding—natural rights, social contract—amounts to a critique of that philosophy from the standpoint of historical accuracy. The Founders’ ideas did not depict any real social condition, he claims; rather, the social and economic conditions of the Founders’ time in effect produced their ideas. For example, the Founders’ theoretical justification of property rights merely reflected the economic interests of men living under the conditions of early capitalism, under which governmental controls tended only to cramp individual initiative and the security of profits. Oddly, Goodnow associates the “extreme individualism” of the Founders not with Locke—who did indeed defend property rights—but with Rousseau, whos moral commitment to such rights was considerably less decided. Be that as it may, Goodnow associates the Founders with “a doctrine of unadulterated individualism” whereby “social duties are hardly recognized, or if recognized little emphasis was placed upon them.” This doctrine had embedded itself even more in American courts than it did in our legislatures. At places like Columbia, the next generation of lawyers would learn differently.

Goodnow attributes two flaws to the (supposed) Rousseauian-American doctrine of natural rights. First, it assumes an incorrect theory of nature, having been “formulated before the announcement and acceptance of the theory of evolutionary development.” Since Darwin, nature itself has been ‘historicized.’ We now speak not so much of nature as of ‘natural history.’ In terms of human society this mean that a ‘natural right’ to property might be valid in the eighteenth century but increasingly invalid in the nineteenth and twentieth centuries, as human societies and perhaps even human beings themselves change, evolve, progress. With the disappearance of a frontier society founded upon agriculture and herding, with the rise of large-scale industry—”a social organization such as our foregathers never saw in their wildest dreams”—our rights also must evolve. “Changed conditions…must bring in their train different conceptions of property rights if society is to be advantageously carried on.”

“This leads to the second flaw of the American doctrine: It is too individualistic. Given the new conditions of industrialism and urbanization, which put men and women in factories wherein their movements must be coordinated rather than independent of one another, the private rights of the individual person increasingly must give way to “social duties.” Although Goodnow remained a liberal in the sense that he opposes any form of absolute statism—”We are not…taking the view that the individual man lives for the state of which he is a member”—he did expect vast improvement in administration—the institutional agent of well-coordinated social duties. Just as modern business corporations require the administration of a vast array of persons and their actions, so too will the modern state need its administrators, if only to coordinate the activities of the corporations.

This is where the modern university comes in. As the present of one such institution, Goodnow deplores the fact that “many universities have in the past been the homes of conservatism,” not progressivism. To keep up with the historical evolution of human societies, universities have needed to take the lead, educating students who will become, among other things, administrators of the modern state. Quickened by the new historical consciousness that now eclipses the old philosophy of natural right, student will now learn the new form of government—scientific administration—which will replace or at least supplement the old regime of government by elected officials identified with political parties. Indeed government by elected officials and political parties themselves will also change, with officials running for office as leaders on ‘the cutting edge of history’ supported by parties enunciating a rhetoric of ‘change,’ ‘progress,’ and ‘social justice’ defined as social egalitarianism.

Under Progressivism, America would see a radical transformation of the foundation and purposes of its regime: natural right abandoned for historical right; social coordination preferred to individual effort; the politics of the courthouse and the party clubhouse replaced by the politics of bureaucracy and ‘administrative science.’ For better or for worse, Frank Goodnow deserves to be better-remembered than he is.

Originally published by Constituting America. May 24, 2013.

 

Lincoln came to the Gettysburg field of the dead and spoke of “a new birth of freedom.” What did he mean by it?

A lot of men killed a lot of other men at Gettysburg during those three days in July of 1863. But that happened more than once in the Civil War: at Antietam, in the Wilderness, at Cold Harbor, and many other places. People remember those places and those battles, too, but not the way the remember Gettysburg.

Maybe because this was the battle? The one in which the Confederate States of American lost not just a battle but began to lose the war? But what did they lose in this battle and that war, and why did they lost it?

They lost militarily, and also lost the way of life they were defending because General Lee miscalculated. He didn’t get his arithmetic right. As we’d put it today, in his heart he wanted to stop ‘playing defense’ and ‘go on offense.’ But he didn’t have the numbers of troops he needed to go on offense. His heart overbore his head. Cemetery Ridge became the graveyard of the Southern regime, the Southern way of life.

General Sherman did his arithmetic right later on, when he made Georgia howl, breaking the Southern regime by destroying the plantations that slaveholders ruled. Before the fighting started, Sherman had tried to tell the Confederates that they had their arithmetic wrong; In Louisiana in 1860 he told Southerners that war is not as glorious as you think; it’s not an aristocratic idyll of knights in shining armor. A year before the presidential election of 1860, speaking in Cincinnati, Lincoln had said that, too: the Northern states have the Sothern states outnumbered, and Northerners will fight no less valiantly than Southerners will do, if it comes to fighting.

Southerners didn’t believe it. At Gettysburg they began to believe Yankee arithmetic. Yankee arithmetic turned out to be arithmetic, simply.

Great military commanders show us something about ourselves, as they make their calculations. they show us that to win aa war you must do a uniquely human thing: counting. You must exhibit your humanity while simultaneously treating men, your fellow human beings, like ciphers in the cruelest of equations. You must deploy the most distinctively human capacity endowed by God, reason, in sending your men, for whom you bear moral responsibility, to slaughter other men as if they were animals, and to risk their being slaughtered by those they intend to kill.

And as the commander of such commanders, as the Commander in Chief of such calculating men, You, Abraham Lincoln, and You, Jefferson Davis, must give a human—that is to say a rational—justification for this military arithmetic, which is amoral in itself. we remember Gettysburg because there it was that Lincoln gave to his fellow citizens exactly such a justification in the greatest American speech ever, in defense of the purpose for which the speaker commanded men to fight the greatest American battle of the greatest American war. America, the country that declared its independence in a logical syllogism, a rational argument whose premise was that all men are subject to God’s arithmetic, that all men are created equal and thus may need to kill in order to defend their right to life and their right to a way of life that is fully human: America and the reason for America were defended by this great action, which Lincoln then vindicated in his great speech .

To understand what Lincoln meant by a new birth of freedom we first need to know what Lincoln meant by self-government. Lincoln once said that self-government “lies at the bottom of all my ideas of just government, from beginning to end.” In some of his earliest public statements, Lincoln defined republican or representative government in America as consisting of “a political edifice of liberty and equal rights” secured by the consent of the governed—a security that rests of the “duty” of any would-be representative of the people to “make known” to “the people whom [he] propose[s] to represent” his “sentiments with regard to human affairs.” Self-government rests on that natural right of the people to justice, but also on the need for government by popular consent in order that justice be done, and on the consequent obligation of the people’s would-be governors to disclose the opinions that will guide them when in office.

But if popular consent and natural right conflict? Is there not a tension in the Declaration of Independence between unalienable right and government by the consent of the governed? Theoretically, one can solve this problem by defining ‘consent’ as ‘rational assent.’ Genuine consent must be rational; it must be founded upon the self-evident truth that all men are created equal. But this theoretical solution scarcely solves the practical, political problem of squaring consent with justice, a problem that will endure so long as self-government exists. Government of the people by the people—popular self-government—might not work out as government for the people, or at least not for all of them, if the majority enslaves the minority.

One of the Founders set down his thoughts on this dilemma in its most dangerous American manifestation. As he prepared a series of essays for publication in 1791, Congressman James Madison wrote a note to himself: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in a part [of the people] instead of the whole, in the hands of property, not of numbers.” He drew a telling conclusion: “The Southern States of America,” very much including his native Virginia, “are on the same principle aristocracies.” As an architect of the new Constitution, Madison knew that Article IV, Section 4 says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” He knew, therefore, that the regime of the American Union contained a self-contradiction—the potential for disunion. With most Americans of his generation, he hoped that the eventual removal of slavery would remove this potentially fatal flaw. In fact many states did put slavery on the road to extinction in that first, founding generation. But his “Southern States” did not.

Slavery denied self-government to a substantial portion of the people living in America. The crisis over slavery threw into hazard republican government itself by raising in practice an old philosophic controversy: To secure natural rights, must government overawe the people, lest they break out into anarchy or coalesce into majority tyranny? Or is a very powerful governments itself a greater danger to natural rights than the anarchy and popular tyranny it prevents? In Lincoln’s words, “Is there, in all republics, this inherent, fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” No parchment enumeration of civil rights can eliminate that problem.

Lincoln came to the battlefield cemetery at Gettysburg to say in public what Madison in his prudence could only write to himself. Lincoln again raised the question of popular self-government in speech only after the American soldiers, in a demonstration of military arithmetic, had answered it by their actions. He came to the cemetery, the home of the dead, to talk about the beginning of American political life. In declaring their independence, their self-government, in 1776, “our fathers,” the Founders, “brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” Conceived, brought forth: This is the language of childbirth. It is a paradoxical childbirth, associated with fathers, not mothers. Somehow the Signers of the Declaration of Independence were fathers and mothers.

“Conceived” and “brought forth” are from Numbers 11, the King James Version. Moses asks his angry God, “Was it I who conceived this people? Was it I who brought them forth, that thou shouldest say to me, ‘Carry them in thy bosom as a nursing father beareth the suckling child, unto the land which thou swearest unto their fathers?” Americans, the new Israelites, were brought forth from Egypt—the British Empire—and from the tyranny of Pharaoh—George III. Moses or Washington could not bear this burden alone. God tells Moses to gather the elders, and say to the people, “Consecrate yourselves for tomorrow, and you shall eat meat, for you have wept in the ears of the Lord….” The Lord’s Spirit will be upon not Moses alone, but upon the elders. Moses wishes that the Spirit of prophecy were upon the whole people, In America, the elders were of course the Founders; Lincoln, like Washington before him, wished that the spirit of independence, of liberty and equality, were upon the whole people.

The Declaration calls the Americans a people —a people who, like the Israelites, existed before and after their independence. Lincoln described the bringing forth of a new nation; a nation therefore must mean an independent people. This independent people was conceived in liberty. Long before independence, before George III and parliament designed to reduce them to slavery, Americans had enjoyed civil liberty—limited self-government over their own ‘internal affairs.’ The new nation was “dedicated to the proposition that all men were created equal.” In part because Britain had required some colonies to permit slavery and, as recently as 1769, had vetoed a colonial enactment to suppress the slave trade, Americans had not secured the God-endowed unalienable rights inherent in human equality; the slaves obviously had not secured those right, but neither had the free. My violation of your natural equality potentially threatens mine (even if mine seems secure) because in permitting the violation of your natural equality I have in practice contradicted the principle of natural equality. That principle applies to me as well as to you, as a creature of the same species, the same natural rank. By asserting their full, political self-government on the foundation of the principle of natural equality, Americans rejected the principle of slavery even as they tolerated its practice, and for Lincoln as for the Founders this was crucial.

The self-evident truth of human equality enunciated in the Declaration has become a proposition in Lincoln’s formulation. He means not a mere statement but the premise of a syllogism or an axiom of a geometric proof; “the principles of Jefferson are the definitions and axioms of a free society,” he wrote. The nursing fathers of the Declaration held the truth of human equality to be self-evident. But Americans since then, like the Israelites, had disregarded the laws of nature and of Nature’s God. “When we were the political slaves of King George, and wanted to be free, we called the maxim, ‘all men are created equal,’ a self-evident truth; but when we are grown fat, and have lost all dread of being slaves ourselves, we have become so greedy to be masters that we call the same maxim ‘a self-evident lie'”—as one antebellum pro-slaveholding politician indeed had done. The proposition, maxim, or axiom of the Declaration is no less self-evident now, Lincoln maintains, but it is so to fewer people, as too many are blinded by passion, like little King Georges. The loss of the dread of tyrants leads a selfish people to insufferable pride. What they’ve really lost is their fear of God, who created men and endowed them with unalienable rights, and who allows tyrants to serve as the scourge of the wicked. Americans were losing their self-mastery in their chase for mastery over others. To correct them, the war in its action and Lincoln in his speech, his argument, must show how cruel the axioms of moral geometry can be, when violated and when defended against their violators.

The Civil War—the judgment of God upon the new Israelites—tested “whether that nation, or any nation so conceived and so dedicated can long endure.” Israel old and new are particular nations with universal significance. A republic, a nation dedicated to the protection of equal natural rights, requires popular sovereignty. Constitutional union founded upon popular rights cannot survive an appeal from lawful ballots—the election of Lincoln in accordance with the Constitution—to unlawful bullets, if those bullets go unanswered in deeds and in words. Even as labor is prior to capital, the people are prior to government; only a government that oppresses its people, attacks the people’s own laws, can justly be overthrown by force. The people of Israel escaped Egypt, the tyrannical rule of Pharaoh, but did not thereby release themselves from the law of God. The people of America escaped the British Empire, the tyrannical rule of George III, but had not released themselves from the law of God. Just the contrary: To survive as a republic they had to bind themselves all the more closely to the life-giving, rights-endowing God for, Lincoln explains, “the sheep and the wolf are not agreed upon the definition of liberty.” What is self-evident to the sheep is not self-evident to the wolf, which would use the lives of the sheep for himself and, in human clothing, destroy political liberty on the same principle. As the duly elected president, Lincoln must speak and act to prevent the sheep from beginning to think like the wolf, for in doing so they unwittingly collaborate in their own eventual destruction.

The consecration of the Gettysburg cemetery by the people—the consecrating of themselves, for tomorrow, when the war will be over—reaffirmed the people’s dedication to the ‘old’ birth of freedom, to “the unfinished work” of the nursing fathers who brought them forth from Egypt but did not live to see them enter the Promised Land. Such dedication meant that the Spirit of the Lord—for the new Israelites, the once-again self-evident truths of the Declaration—will be upon not only the nursing fathers but upon all the people. The new birth of freedom, witnessed at the Gettysburg field of the dead, meant the emancipation of the slaves—one-eight of the American population—and the full emancipation of free men, including the former slave masters, who had contradicted their own right to rule by claiming a universal truth as if it were a narrow, particular entitlement.

 

Originally published by Constituting America. May 21, 2013.

 

Abraham Lincoln won the presidency in the election of 1860, defeating three other candidates, including two Democrats, with nearly forty percent of the popular vote and an absolute majority in the Electoral College. Democrats had split into two factions Northern Democrats, headed by Illinois Senator Stephen Douglas (who had defeated Lincoln in the Senate election two years earlier) held that the question of admitting slavery into the western territories should be answered by referendum in each territory. Southern Democrats, headed by Senator John J. Breckinridge of Kentucky, upheld the claim most famously enunciate decades earlier by Senator John C. Calhoun of South Carolina—namely, that property in slaves is an unalienable right, that slavery was “a positive good” for both white masters and black slaves, and that slave owners therefore could keep their slaves wherever in the territories they pleased. Popular sovereignty might not protect, and surely did not posit a natural or absolute legal right to slave property, and could never satisfy the slaveholders. Although Douglas won the nomination of the regular Democratic organization, he won only a single state in the national election: Missouri. The Southern Democrats (who had ‘seceded’ from the party’s convention before the final vote was taken) won ten states, all of them by overwhelming margins.

Upon learning of these results, the southern Democrats attempted to secede from the Union itself, with South Carolina leading the way on Christmas Eve. By the time Lincoln took the oath of office on March 4, 1861, seven Southern states had passed secession resolutions and had founded the Confederate States of America. South Carolina’s argument for secession was typical: Many northern states had failed to comply with the Fugitive Slave Clause of the Constitution; ergo, the terms and conditions of the Union had been violated and secession was a justifiable response. Although South Carolina wouldn’t fire on the federal garrison at Fort Sumter until the following month, other federal properties had been seized by the secessionists. “The house divided” that Lincoln had described two years earlier had reached its crisis.

Crucial to understanding the speech is seeing that Lincoln begins with custom and ends with nature. He moves his audience from thinking about custom—conventions made by human beings—to thinking about human nature, endowed by God. “In compliance with a custom as old as the government itself,” he begins, “I appear before you to address you briefly, and to take, in your presence, the oath prescribed by the Constitution of the United States, to be taken by the President ‘before he enters on the execution of his office.'” The oath of office amounts to a promise to uphold a humanly-constructed law, the Constitution; the customary speech that follows the oath ordinarily outlines policies of the new president, policies he takes to be consistent with that oath and that Constitution. Much more famously, Lincoln closes the speech averring that “The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.” Entwined with but distinct from the sentiments about mystic chords, patriotism, and angels, at the end nature is Lincoln’s final word.

Why? What is he doing, or attempting to do?

By putting custom, convention, and law front and center, Lincoln assured the slave-holding states that he had no intention of interfering with slavery in those states; in this he followed the Republican Party platform itself. On the question of enforcing the Fugitive Slave Clause, he affirmed it as part of the Constitution he had just sworn to obey, saying only that in enforcing the law “all the safeguards of liberty known in civilized and humane jurisprudence” ensuring “that a free man be not, in any case, surrendered as a slave” ought to prevail.

But he also observed that the oath to preserve, protect, and defend the Constitution required him to uphold the federal Union that pre-dated that Constitution. The Union was a convention or custom formally acknowledged by the American colonies in 1774 in the Articles of Association enacted by the first Continental Congress—two years before those colonies declared their independence. The Framers of the 1787 Constitution intended to perfect that Constitution and that Union—a union that had already been called “perpetual” in the Articles of Confederation of 1778. The constitutional union of the American states is a contract; absent some contractual clause to the contrary, no party to a contract can rescind it unilaterally, without the consent of the other parties to the contract. This holds whether the parties are individual citizens or sovereign states. But this was what the secessionists were attempting. Lincoln’s first argument against secession thus amounts to a logical demonstration based upon the character of a conventional agreement or contract that takes the form of a man-made law—which also happens to be the supreme human law of the land.

As seen in South Carolina’s declaration of independence, some Southerners claimed that the contract had already been violated by those northern states which had passed the “personal liberty laws” making it tougher to extradite African-Americans in free states who were accused of being runaway slaves. That argument hinged upon whether secession was a just or proportional response to laws that set a high bar for extradition. because secession seems both a drastic and an ineffective response to such laws (why would secession make it easier to recover runaway slaves?), the main argument of the slaveholders continued to be that slavery was a positive good and that slaveholders were entitled to bring slaves into federal territories—the argument to which Lincoln now turns.

Lincoln’s next argument against secession edges away from convention in the direction of nature. It is an observation about political rule in a republican regime. In republics the people rule through their elected representatives, who commit themselves to the supreme law of the land upon taking office. With respect to the principal issue dividing the house in 1860—Congressional authority to protect or prohibit slavery in the federal territories—”the Constitution does not expressly say” what must be done. This relegates the issue of slavery in the territories to the realm of a political question—that is, to majority rule. The presidential candidate of the Republican Part had just won a majority of votes in the Constitutionally-ordained Electoral College. “If a minority, in such case, will secede rather than acquiesce” to majority rule, “they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority.” With no legal or even rational limit to such division down to the body of each individual, “the central idea of secession is the essence of anarchy.” Only a majority can function as “the true sovereign of a free people.”

“One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended.” Slavery, not states’ rights, lies at the foundation of the house divided. Only constitutional majorities can repair this division if Americans would adhere to the political principles of the Founders, which were the principles of republicanism. “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their Constitutional right of amending it”—and in 1860 neither side had the votes for that—”or their revolutionary right to dismember, or overthrow it.” Lincoln offered his support for a Constitutional amendment to pledge the federal government never to interfere with “the domestic institutions of the States, including that of persons held to service.” But as a constitutional officer of the United States pledged to preserve, protect, and defend the Constitution, he would not countenance a legal right to overthrow that government. What is more, even if Lincoln walked away from his Constitutional duty to defend the Union, the fundamental problem would not end because the United States of America and the Confederate States of America would “remain fact to face,” governed at most by treaties rather than a shared constitution. Why would a treaty on runaway slaves be better enforced than a constitutional law on runaway slaves? Why would two federal governments keep the peace between the sections better than one?

In a speech in Cincinnati delivered in the previous year, Lincoln had warned of the outcome of a sectional war, remarking that Northerners outnumbered Southerners, and were no less valorous. The Southerners supposed otherwise, and fought. Lincoln’s next-to-last argument in the First Inaugural, an argument from prudence, and argument based on practical reasoning, tactfully does not go so far as he had done in Cincinnati. He instead speaks more generally: “Intelligence, patriotism, Christianity, and a firm reliance on Him, who has never yet forsaken this favored land, are still competent to adjust, in the best way, all our present difficulty.” Prudence, sentiment, and religion having taken decidedly different forms in the slaveholder-ruled states, the war came, and Lincoln’s final argument, or rather allusion, to the better angels of our nature fell unheard. The better angels of our nature adhere to the laws of nature and of nature’s God, but the slaveholders, beginning with Senator Calhoun, had rejected the truths that the Founders had held to be self-evident. Without that standard—that all men are created equal—which Lincoln elsewhere calls the standard maxim of a free society, no other arguments for the conduct of a self-governing citizenry can prevail and the citizenry will depart from self-government and go to war with itself. And that is exactly what happened.