Transcripts For CSPAN3 Lectures In History Political Theory And The Early Republic 20180225

Thomas west talks about his book, the political theory of the american founding. This is just under two hours. Well, tom, i would like to welcome you to georgetown law and the seminar recent books on the constitution to discuss your wonderful new book. For the benefit of those who are watching outside the room, you e the ball ermnan potter endowed professor at hills dale college in michigan. The name of the book we will be talking about is the the political theory of the american founding, natural rights, public passly and the moral conditions of freedom. Thanks for being here and the recent book seminar. Before we summarize what the book is about, let me ask you what the origin of this the pack was and how it fits within your larger academic agenda . Right. This is a topic, the political theory of the founding that i have been thinking about since about 19 3, so name the date, when i was invited up to a conference to write on a topic of that is correct the relationship between the founters and the calaisics. A topic about which at the time i knew nothing on either side. I knew something about the classics, but not about the founders. I recognized the thought of the founders is more complicated and more interesting as a student of plato, more so than i expected. It has taken me a while to develop fully my understanding of the founding. I hopefully have presented it in this pick. Why do you choose to write books as opposed to articles . Well, i have written some articles over the years. In political science, i would say that if you want people to say that you are somebody in the field who is work looking at it, you kind of have to write a book about it. Is there any particular challenge in doing a book like this from a research or writing standpoint . The most difficult thing was just to figure it all out. It turns out to be a pretty complicated subject, and it took me a while to learn. I did a book on the founding 20 years ago that issued contrast with this one, vindicating the founders, which sold a lot for a founding book. It was directed against various liberal critiques of the founding. Kind of defensive pointed part where they had both misunderstood the founders, or in some cases they hadnt misunderstood, and the founders were still defensively. That is the kind of book at least in Academic Circles tend to be dismissed. I came around to the idea of aving to write an actual book. One of the student comments i read was that i make a passionate defense of the founders view of morality. What i tried to do was make a passionate defense that the founders cared about morality, in defense of the scholars who said no. I tried to remain relatively neutral about what i thought of the founders, although it probably came through that i liked a lot of what they said. But the book is not about that. It is not a defense. It is a description, and that took a while. What especially took a while, and it took me a long time to under, was the political theory of the founding requires a eries of policy of policies that went way beyond anything that my teachers and most of the scholarly literature talked about. Everybody talks about the structure of he that. People talk about freedom of speech, slavery as topics where the theory of founding has something important to tell us about policy. But beyond that, there is a lot of things that government does beyond that at least that i realized scholars havent discussed what others do. Once i began to look at it through this idea of the founders overall concern being to secure the rights of the individual as their overall objective, the purpose of a lot of these policies fell into place in my mind. I could see better what was going on in terms of why those policies were adopted and implemented. Lets close the door so we dont get the noise in here. Why dont we turn to the thesis of the book . Maybe the best thing toe off withto do to start the academic premises you are challenging. One is under liberalism, and the other is republicanism. Superattribute republicanism to the founder era. Maybe we can start by your explanation of just what is normallyly meant by liberalism, and what is normally meant by republicanism. These are two terms that dont correspondent to the way people think about them. It is a label about a tradition of thought that is oriented toward protecting individual rights. People who use the label liberalism to describe the natural right theory, which is often traced to people like john locke will argue that that it is a somewhat selfish theory of government. It is the idea that government is there to serve the interests of the individual without much concern for the common good and the overall good of the community. Thrabralism in the scholars vocabulary often means Something Like that. Republicanism doesnt mean that. N the scholarship view it means a way of thinking about politics in which the citizen is primary understood in terms of his duties to the Larger Community as opposed to his private individual rights. So the reason why scholars tend claim that republicanism and liberalism are at odd with each other. He thought of republicanism is oned toward the common good over the individual. Part of governments job is cultivating the orientation of the good toward the community and to some degrees at the expense of the self. Those are the traditions. This all got started in the 1960s, starting with gordon woods big book on the founding in 1969. He made the argument that the 1776 founders were essentially republicans in this sense of the word, common got oriented. And in his book he has the astounding phrase, ideally, republicanism obliterated the individual. That is a quote from that first ook. Wood saw republicanism as almost the enemy of the individual and individual rights. That is a position that he modified later. Many scholars who follow him think about this way of thinking of the founding attractive. They want to make the case that that is really what it is all about. Then you have the other scholars who kept bringing the older idea of individual rights back that had always been around the idea of individual founding. That continued to be asserted and sometimes asserted against the claims of the republican the current prevailing this idea ofmia is amalgam of multiple traditions are to some degree at tension with each other. It is primarily that thesis, the amalgam thesis which i am challenging in this book. Here i am arguing very much that the natural rights and natural law theory of the founders very much focused on the individual, is the lends through which all Public Policies were understood in the founding, including those policies meant to cultivate citizen virtanen and dedication to the common good. That is my somewhat unique take on the founding. It can be summarized that way. So virtanen plays an Important Role in presentation. The first part of the book tries to substantiate the claim that natural rights were founding political theory. Then you move on to a substantial discussion of rtanen or morality of virtue or morality. What necessary meant by that is unless people have a disposition in their orientation and rabbits, a respect for rights, and at least to some degree a willingness and ability to perform their basic minimal moral duties in society, no matter how well organized the legal system might be that is meant to secure private right, it will not succeed because the public itself will not be willing to continue to vote and support policies that enable sthose rights to be protected. The common formulation was in a republican form of government based on consent, virtue is needed more than any other form of government, because in a republic, the people themselves pick the rulers. So if the people dont have basically good sense and basic attitudes of restraint and respect for each others rights, they will be putting people in office who will end up exploiting some citizens at the expense of others. I said benefiting some citizens at the expense of others. That is what i meant to say. So you need to have some minimal degree of those qualities of selfrestraint and selfassertion. You need to be able to fight and have those qualities as well. That is a summary of how they understood that relationship. Just as a warning, i am going to open it up to questions and comments soon. But let me ask a bit of a critical question at this point. In your discussion of of virtue or morality, there is a bit of an ambiguity there, and i am not which side of the mbiguity you are on. The public virtue would be what you just talked about, and that is the virtue of justice, the virtue of following the law, the virtue of respecting the rights to the , adhering duties that you would owe others with respect to their natural rights. That is really the evidence that you present, and most of what you discuss goes to that kind of virtue. That is actually consistent with what you just said, the recondition of a natural right republic would be people feel obligated to respect the rights of others. Then there is the noigs that we could call today maybe private morality, which is sort of moral behavior behinded closed doors. How you treat other people, who alcoholp with, how much you consume, these sorts of behaviors. Now some of these practices were subject to laws at the time of the founding. They also could be characterized as relating to virtue, but virtue in a different sense. Virtue in the sense of guidelines for how you live your life. Guidelines for how society should be structured. Even though the book ask address that, and there were laws that were enacted at the time of the founding about that, they werent very well own forced. I am wondering how many of your thesis or evidence is about the first kind of virtue or first subset and how much is about the second subset of virtue . That message didnt come through the book as clearly as i might have wanted . That is a good question. The first what you are calling public virtue was i think the most urgent kind of virtue for overnment to Pay Attention to. For example, it seems reasonable to say it is part of virtue to respect the life, liberty and property of others from the point of view of the founders. So part of the way that kind of virtue gets taught is through the penalties of the criminal law, or in terms of private wrongs, through the civil law. You can teach people by whacking them legally. That is one as penth of it. One as poke of it. With respect to private virtues politeness, ity, generosity, these were talked about things that governments should foster. The massachusetts constitution speaks to that. The thought there is that these are things that are beyond the law. You cant have laws about being polite and civil. But that is something of interest to government because people do need to be able to get along in private life. If the founders were around right now, they might point out the fact that americans today often really seem to have a hard time just getting along day to day with each other without getting into all kinds of irrational quarrels that are often destructive to their own happiness and that of the people around them that they love. So it can become a mat other of interest to the public that way. Then there are those virtues that have to do with sex and marriage that they thought were of importance to the public above all because of the po public of children life, not just private. Ecause children are future they are not yet able to selfgovern. Something needs to be done to try to make sure as best as possible that their interests will be taken care of. Their idea was well, that is it why you need to have a married mother and father. Ideally theory biological parents. They thought that was the best arrangements. Therefore, they had a series of laws promoting that. On the other hand, private sexual activities that deviated from that norm typically was outlawed, but if it didnt come to Public Notice or was not in any way seen, no one seemed to Pay Attention to it. There is little prosecution of sex outside the marriage in founding unless a child was conceived. Then it got to be important to the public because somebody is going to have to pay for that if there is no father around. I think that is how they saw the connection between the importance of the two types of virtue. Great. Uestion . I went through it again, and it does have it is a very strong theory. My only issue with it is there are some aspects of the book which you lead or at least it seems to me. The issue of equality and slivery. And slavery. You do say that the founders put to motion certain mechanisms which basically led to emancipation later on. It is a Frederick Douglas sort of read. It glosses over the fact that there was a law two it. Here is no sense of equality for black slaves in any meaning sense at that point. There are certain aspects which i am sort of not so what you have to sort of say about Something Like that . The race to treat question from two points of view. One, slavery, which is the most obvious and massive contradiction with their own principles because of the fact people are born with a right to liberty. There is no way you can get around it. That is a violation of the right o liberty. And then on the other side, how free blacks were treated in the law. There what has to be understood and what i found that liberal scholars are better at pointing out than conservative ones, they were not really part of the nation until the civil war, the 14th amendment. Free blacks had an obscure, excusing citizen status. Sometimes in the law they were called denizens. They often had limited Citizen Rights or none in some cases. There is a passage in the fred scott case where the chief justice correctly says look, if these blacks are treated as citizens, these free blacks, we have to give them Citizen Rights, like the right to keep and bear arms, the right to have public meetings, the right to freedom of speech in the press, the right to go and travel wherever they want at all times. His statement was we cant have that. That was the precivil war view among probably a majority, especially after the 1790s. Burr that is a fact of life in america which has to be understood. I touched on that briefly. I didnt get into it deeply, but that was there. My point, however, about that is citizenship for blacks or for really any group was always a possibility under the founders political theory, because the theory itself was not racial in its nature. It was about humanity, human rights, not white rights or any other group. So the post civil war settlement was always a possibility, by which i mean the post civil war settlement, meaning the now liberated blacks will have full Citizen Rights, including Voting Rights. That was always possible. It wasnt desired before the civil war. And to some degree, their exclusion from citizenship was justified by their political theory, which was that you have a natural right to liberty, but not a natural right to become a member of a particular political order. That is why colonization was always a big topic among precivil war americans who were talking about the slave problem and even the free black problem. That was the view that was probably most often held among the most highly educated americans from the time of the founding to the civil war. Just to be clear what colonization is, the policy of colonization would be to repatriate african slaves to africa, where there would be established colonies for them . Yes, to africa. That was why lyberia was set up. Later there was an idea that maybe central america. Lincoln had a plan to buy part of panama from colombia, and they would get the northern part of panama. He also got congress to fund a plan where he was going to purchase an island off the coast of haiti, and he had a delegation of blacks in the white house saying look, you should start on this project and set the example for your fellow blacks. We need to have separation. That was the view. That was out the window by the time you get to the 14th amendment. At 14th amendment solution wasnt the one the founders chose for whatever reason. But they didnt choose that. We today would say that was terrible, that was unjust and so on. They felt like well, it is unjust in so far as we dont allow them to have a country of their own, so we should do something about that. There so was some injustice. Is that you are getting at . Yes. On page 267 you said there was nothing in the founders principles that required a onerace society. Yes. But i mean that is what i was going at just now. I guess i am failing to see w even the idea of colonization wouldnt prove that idea to be incorrect . What i am saying is from their point of view, whether or not free blacks would become part of the United States as fellow citizens or not was a decision that didnt touch on the question of whether they had natural rights or not. The founders view was unquestionably, they are born free, and they have a right to liberty. But at the same time, most of them thought we dont want to have an integrated society. We dont want to have a multiracial society. We want a society that was predominantly european. That was the view that prevailed up to the civil war, which is what led them to think that well, we can just keep them here, ruling them without their consent. That is a violation of their rights, too, even though they are free. Free blacks. So we need to find some place where they can live as a free people. It is not going to be here though. So that is how they viewed it. They viewed the Citizenship Question as separate from the natural rights to liberty question. I think today we have a hard time accepting there is any validity to that distinction. They were living here in america. Where were they supposed to go . There wasnt any place for them to go, practically speaking. And the efforts towards colonization one could say retrospectively now, were too little and even probably somewhat insincere in a sense. Not much effort was really put into it one could argue today. Too many people were doing too many other things. Maybe didnt gs stress in the book. I have a whole chapter on this topic. What i emphasized there was sheer selfishness played an Important Role here. They are, and they always will be. Part of the reason slavery continued to exist was people who owned slaves wanted to keep owning slaves. It was convenient for them to have that. You work, i eat. As lincoln summed it up. A great proportion of their wealth was bound up in their slaves. If their slave property was abolished, overnight they would go from some of the wealthiest people in the count to some of the poorest people in the county because of the way their wealth was bound up . Sure. So that doesnt tend to feed ones self interest to a point. The theory of the founding is a theory, how politics ought to be. The question of leading up to that theory is a separate one. A quick follow up. That was actually something i wrote in my crilt eek as well. I understand that the book was more theory based, but i was just wondering why you didnt spend maybe a chapter or some part of the book talking about how the founders themselves lived up to the theory they were trying to i guess establish for the country . Why didnt i talk about individual founders and their treatment of slaves and blacks and so on . Yeah. I made a decision early on that this book was going to be a book about the consensus that was reached in the founding, the consensus that became politically effective, which was also articulated in the fundamental documents. Which meant that i was careful to not get distracted by individual differences among the founders and the way they lived their personal and private lives. For the purposes of my project, it is completely unimportant whether jefferson did or did not sleep with sally hemmings. It just doesnt matter to me. What matters is what was jeffersons contribution to what happened in the founding and his personal view probably had some influence on that but he wasnt the only one. He was one of a large number of people who created these events and created the nation. So i have made an exception to my general rule in the chapter n hamilton and jefferson where i did go into the 1790s historians think it is so important and its not as important as you thought it was. I do think that the fact that the founders didnt always necessarily carry their natural rights through to the final logical conclusion may have some effect and i think through the book you characterize several modern day policies as being inconsistent with the founders natural rights theory. Whether they are or not is less interesting to me than the tension that arises with perhaps these modern day policies, in fact a response to the consequences of the founders not living up to the logical conclusion of the natural rights theory with slavery being the most obvious example. And how would you respond to that and how that affects the am cabblet of the natural applicability for todays policy . Another one of these fascinating questions i tried very hard to stay away from. Not always successfully i admit. How did we get from there to here . Yeah. And to what extent were they responsible for some the things still going on here . Yeah. When i brought up these contrasts with the contemporary scene, i was mostly trying to mostly did it as a way of showing how were different now. How we have a different view of justice now. Not so much why we have a different view. But we do. I think the contemporary understanding of what justice is, which of course places a huge amount of weight on the race question, much more than they did, is thats a difference. That is something new. I mean, if i could just say one thing about the contemporary understanding here, the view that has prevailed since the 1960s in america and again ill widely over generalize just as i did about the founders, but since the 1960s eve had the view that justice consists first of all of being able to live your own private life however you like in terms especially of Sexual Activity and, secondly, that there is a fundamental moral obligation for there to be a transfer of resources and transfer of honors and respect away from those groups that have traditionally had those things to those groups that have traditionally not had those things. That of course is understood very largely in terms of groups that are easily identifiable by their appearance, like race and sex. So the idea that has come to prevail is that if youre nonwhite and nonmale, that you are owed something more by government as a way of equalizing or making up for what was the case in the past. And which, that means that you have to move away from the idea of simply everybody having the same private, individual rights enforced on the same level basis toward the other view that you groups are to be viewed in terms of their degree of success or their degree of oppression or their degree, Something Like that. And then you have a specific government response that differs from one group to another. Weve come to accept that. And i didnt want to be judgmental about that, but, clearly, the older view, the founders view is very different from that. But anyway, i mean, i do have opinions about that. Maybe we should just talk about the book a little more before we speculate on what happened in the last 250 years. James . This actually takes us back a little bit to the book. And my paper had been about this and maybe not as well say it now s ill but well see. You are saying there is a connection between when private conduct leads them to say Public Interest such that the government can use laws to regulate private conduct. The question in my view would be, is that principle one that is ultimately defensible, maybe government shouldnt be really getting into morals legislation at all. I think one line of argument would be it produces ultimately a precedent supporting later comstock laws and highly invasive government techniques through the 19th century. Im also aware the conflicting view is at some point what isnt moral conduct . I know scalia and i think in roemer in his dissent calls murder a moral judgment by society to do away with that or beastiality for example. Yeah. So i took that view of morality you just attributed to scalia in i think my first chapter on morality where i said everything government does is about enforcing morality in a sense, in the sense it takes a view of whats right and wrong and punishes the wrong and whats, what it regards as right or innocence, ok. Let it go. Nd so there is that. As for the late 19th century i had a brief comment on that in my chapter on marriage in which i pointed out the kind of strict morals legislation that prevailed in america starting n the 1880s and 1890s and up to about the 1960s was different in character from the kind of moral regulation that xisted prior to that time. Largely in terms of its strictness. People in the progressive era began to have much Higher Expectations of human nature than the older, than founders did. And they thought government needs to be much more involved in and regulatory toward private life than was thought to be the case in the precivil ar period. If you look at some of the progressive theorists of that day, people like woodrow wilson, theodore roosevelt, they were much more willing to say, lets get away from the distinction between the public nd the private sphere. Lets get away from the idea there is a private sphere government is suppose today protect and otherwise leave alone. The progressive view was that is a very stunted and low understanding of what overnment should do. So in response to you i would say that there really was a new understanding of the role of government and the expectations of human nature that came to prevail in that period after the civil war in cop contrast to the earlier. I think you mentioned this earlier, too, randy, that i couldnt find examples of people who were prosecuted for being gay. Which i kind of was surprised about. I thought there would be a lot, be something, at least, somewhere. I found one example of a homosexual what would have been considered a homosexual rape at the time. Under age boy who had been seduced by an older male. Thats it. And which is striking since all the states had rules and laws against that. It seems that these things were thought you know, the same thing with regard to other crimes. Crimes like adultery was criminalized. You just didnt find prosecutions very often. It was rare. I think that feels the attitude. The attitude was if its behind closed doors and not creating a problem for the public, a big problem for the public, we should leave it alone. Its not really governments ole to be overly preoccupied with the details of private life. Also prostitution was much more tolerated prior to the 1880s. It was a decades long crusade against the social evil starting in the 1880s and that is what it was called. Prostitution. All kinds of energetic programs instituted. It just wasnt done earlier. Yeah. We shouldnt have that but lets not get too preoccupied with it. Did you find anybody actually articulating that view . I dont think there is an example of that in your book. No. I didnt. I dont think i did. One of the researchers i relied on in that chapter has has a book, i forget his name but he has a book on this topic of sexual regulation and the founding, and he had lots of other examples besides the ones i found of the laxty of enforcement. He didnt, i dont recall him coming up either with anything where people said as a matter of policy were just going to leave certain things alone. It was the consensus that consisted at the time which both he and i were struck by as something that was noteworthy to that period and very much in to the later period. Lawrence freedman has a book on the history of law which i also found helpful. Some nice quotes from some of the earlier laws and later laws and the enforcement practices with regard to sexual morality. So, yeah. I dont have good quotes on Something Like that. Been a eems to have phenomenon acknowledged by historians of the subject of whom there arent a huge number but theyre out there. The last visitor to the seminar is jeff stone who has a new book out called sex and the constitution. It is kind of reassuring that despite whatever political differences you might have with professor stone on this particular topic your books, what youve just said, are perfectly consistent. This was, and you have some minor disagreements with him throughout the book on some of his articles that he wrote. On this particular subject i think it is fair to say because weve all read that book that your findings are completely consistent on the lack of enforcement. And i other hand he also dont understand he also didnt volunteer anybody who articulated the view that were going to leave the stuff alone, only that they tended to leave the stuff alone. So you guys converged on the same empirical result. The situation in the post 1960s era with regard to laws against sodomy is parallel. At a certain point somewhere in the 1960s or around that time a consensus emerged and you can find discussions in private literature, private publications, but probably not so much among Public Officials but the consensus was lets just stop messing with this. You know, the general idea of maybe we should just leave these people alone. Maybe what theyre doing is just fine, too. You know, since the post 1960s. So it took a long time before the Supreme Court got around to talking about it but those laws were pretty much of a dead letter for sometime for several decades before the lawrence ase came down. Heading in a slightly different direction i have two questions about your articulation of the founders view on the separation of church and state. It seems that in the race portion you separate out the ideological view of the founders from their pragmatic and personal policies. Whereas it seems you dont necessarily make that separation when it comes to religion and so far as we do have the constitution, which has the establishment clause and we do have jefferson and madison articulating their desire for church and state but when you discuss their sort of capitulation to the existence of biblical readings in school and public prayer, you use that as evidence that they didnt firmly hold a true belief of separation of church and state. So i was wondering if you could xplain sort of the operational difference that justifies that reasoning. What i meant to say was somebody like madison probablies was probably was on the extreme separationist end of the spectrum in that period. Madison seems to be the one leading founder who was the most dubious or hostile to any form of Government Support of religion. And he doesnt say a whole lot about that in his public writings or even in his private letters. He is very cautious on the subject of religion. But he does seem to have held that view in some of his private notes left behind when he died indicate that. Jefferson on the other hand was simply inconsistent on the subject. Jefferson would say things like, its immoral for government to demand funding to promote a view that a taxpayer doesnt agree with. A position jefferson himself didnt believe for one minute when it came to funding the university of virginia or providing a certain view of government at u. V. A. As the basic doctrine. He even called it orthodox. Lets get orthodox professors, using religious language to indicate government funding of education is going to go only in one direction. That is pro republican government. When it came to religion he then said, oh, no that is terrible. But then the same jefferson, actually in the same book notes on virginia says, if people ever stop believing that liberty is the gift of god, we wont be able to sustain liberty. In that statement, hes basically turning against his own other officially stated position that its a matter of indifference as to whether people do or do not believe in god. As president he was willing to countenance statements he made statements that were favorable toward religious faith, toward christianity in particular. The first inaugural address has a wonderful passage praising the kind of christianity as practiced in america as being exactly the sort of religion we need in this country. And my point about other founders was most of the others were much more willing to support this notion that government can promote religious belief, although it although the way of doing it that was done in new england was mostly not very popular among the other founders. So, for example, direct taxpayer funding of ministers and churches and private life denominationally oriented, that was the new england model. Rejected elsewhere and even in new england it was rejected within a couple decades, a few decades after the founding. However, other forms of supportive religion support of religion other than through public education, that became sort of the norm and a consensus emerged throughout most of the states in the post 1800 period, and sure you had people like jefferson, madison who had some reservations about that, but most people, the majority went with it. And so my argument was, also, not only did the majority go with that view of things, but the majoritys position is defensible in terms of the natural rights theory. And that probably most people today would say i dont believe that. But, you know, my argument which is based on some people in the era, the founding era, is that if Government Funds or promotes religion, it is not forcing you to be that religion, not as long as they allow you to have your religious freedom it can pport a decision not every citizen will agree which is the general view of most founders. I guess my problem is jefferson also held this natural rights view which theoretically was supposed to outlaw slavery but he continued holding slaves and that was an inconsistency that i think somewhat mirrored the consistency that he had on religion. You also bring up the fact that something that points to the act that natural law principles would be inconsistent with slavery, the fact those same principles in the founding documents are what contributed to the end of slavery. I guess i think that parallels the establishment clause which the founders put in the constitution later being used to establish a more firm separation of church and state. On the question of slavery jefferson held a pretty consistent position at least throughout his life which was wrong, it is a violation of natural rights to keep people enslaved, but there is also a question of justice on the other side, namely if these slaves are liberated and then are to be integrated into society, that is going to lead to a whole series of other problems, which could indeed be murderous. And when jefferson said we have the wolf by the ears, we can ither safely hold him or let him go, justice on the one scale, selfpreservation in the other. This is a letter he wrote in i dont know, 1820 maybe. Meaning that justice is in both scales. On slavery. That is, its on slavery is unjust but we also would be unjust to have an immediate emancipation that would lead to a race war, which is what he was afraid was going to happen. And they were all of course during that period all very reminiscent of what had happened in haiti after you had the liberation of the slaves there. You know, there was all this very murderous treatment of the races of each other. And there was genuine fear about that. People who believe that, said something about that, yeah, if the slaves are ever freed there is going to be a race war and murderous on both sides. People believed that right or wrong. I think it was a sincere belief. For jefferson there was always this idea of its wrong but we shouldnt end slavery without finding a way to give them a lace to live somewhere else. So separation. What you can fault him for, he didnt do very much about that. He stated the problem but he didnt do enough about it. Could have done more probably. One way to understand the founders view on this is for them to project on to the slaves how they, themselves, would feel if they had been enslaved. So its sort of how mad would i be . How angry would i be if what was done, if what was done to me was the same as what had was being done to the slaves and therefore how would i react if liberated . I would just want to kill the people that did that to me. If thats how i would feel then i imagine thats how they will feel. So im afraid of them for that reason. That is one way to understand why they would have thought that about how the slaves will react apart from the other examples of it happening. Evan . Now i have a couple questions. The first question just as a followup response to that. It seems like youre pivoting between arguing on the one hand that the founders were inconsistent in the way they dealt with slavery. They made a compromise in their tural rights philosophy in part because of selfish reasons in part because they valued other things more on one hand and now youre arguing they were acting consistently with the natural rights philosophy even with respect to slavery because they feared a race war. Because with respect to the founding of the country they were afraid perhaps a couple slave republics would emerge that are even more hostile to natural rights than a regime under which in theory you could bring the Southern States within a regime that would gradually lead to the emancipation of slaves. And i want to first of all flesh out your considered position on that because it seems there is a tension. Why dont we stop on that one, ok . Ok. I can answer that pretty quickly. The answer is both. The founders were inconsistent in their treatment of the problem of slavery insofar as willing to say yes it is wrong in principle and we havent had these free blacks here as citizens. They didnt do very much to make good on a solution to that. Which they believed was colon ization. Finding some other place for these black exslaves to live where they could live and have their own society and be the be their own people independently in the u. S. They didnt. They were inconsistent. I agree. At the same time i argue yes. In some respects slavery was justified in their minds by their fear of violent death. I treated it, i dont remember, somewhere i compared it to any other kind of conflict of natural rights that might occur. For example, when jefferson pointed out two ships meeting on the high seas one of which the men are starving the other one the man has plenty. Jefferson says, well, people who are starving have every right to steal the food of the people who are, who have a lot. Property rights are violated. Property rights have to be respected but in situations of urgency and necessity, you violate them. That in that sense one can argue because of that conflict of rights, they were sincere in believing in that, to that the one can justify continued existence of slavery. Thats all im saying. I dont want to take away from the selfishness reality, you know, people like having slaves. That is all there, too. You know. One way to understand this theoretically is to appreciate the fact that natural rights theory presupposes a natural harmony of interest among human beings such as the rights are properly defined. Our nature and the nature of the world we exist in would lead to harmonious interest so everyone could exercise their natural rights consistently with everyone elses natural rights and there would be no conflict. If they are all defined properly. That is the natural harmony of interest. That has to acknowledge that is only true under what you would say most circumstances but it is not true under every ircumstance. That natural harmony would not exist with the two ships in the ocean, does not exist when the two ships go down and two people are swimming for the same planks to survive. At that point the natural harmony of interest, the Empirical Foundation on which natural rights are erected has gone away. Now it is not possible. There is no natural harmony of interest, only the survival of one who grabs the board as opposed to the other one who grabs the board. So natural rights at that point dont work. Because they work under the circumstances in which thats not the norm. So the truth or falsety of natural rights theory depends on the empirical claim that the norm is such that we can normally live together in peace and harmony if these rights are protected even though we would then acknowledge there are. Xceptional circumstances so you have the extreme of the ship wreck and the person in the avalanche or the snowstorm and they come across an empty cabin and have to violate Property Rights to protect themselves, youve got those extremes and then the norm. Then the question is really is this some way of positioning slavery, the already existing practice of slavery in between those two . A t somehow that created conflict they believed to be irreconcileable though had it all been done properly in the first instance it would not have been. In cases like that with emergencies or life boats under nditions of extreme scarcity would make natural rights philosophy do something it is not supposed to do. That is another way of putting the same point. [laughter] ok. If im driving 70 miles an hour in a 30mileperhour zone or transporting ultra Hazardous Materials or i own a machine gun and im firing it in a public park i am not necessarily violating anybodys natural rights. I am however doing something considered to raise the risk and on the grounds that well they havent actually done anything wrong or injurious so we have a regime of expost tort law that will take care of situations like that. It is not at all obvious to me the optimum natural rights regime doesnt involve laws like that. Number one, number two. Suppose. Yes, laws that yeg late unrisky activity and thereby protect people against injury. Number two, suppose i am wrong about that. Say i am a conscientious legislator considering a measure that would restrict the transportation of ultra Hazardous Materials or impose a Building Code or something designed to protect against injury. On my ide myself consistency with the founders natural rights philosophy. Can i argue in good faith base onondaga that philosophy for a measure like that even supposing every single founder if you asked them a question about that would come to the conclusion that, no, that is not something you would want to do . I dont think people in the founding ruled out preemptive regulation of the kind you are describing. What they believed was the presumption should be in favor of free use of property, free xchange of property. There were regulations from early on making people do ings that werent, you know, where there was no immediate injury no process. You had to get a permit to transport dynamite through a town, put lights out on a boat on the river. Precivil war regulations of that type were very common. The entire passage you have listing a series of preventative things you find objectionable and say the founders would have had a problem with them. The point i was trying to their basic way of thinking about liberty was as a set of guidelines not as mandates that are true in every circumstance. Yes, some regulations along the kinds you are describing obviously hazardous activity taking place in public settings. Was acceptable. But only in a context where most people, most of the time, ere not going to be harassed by government over every little thing they wanted to do. They didnt, it was important to them that government stay away from the situation were in now where every little thing that comes up somebody wants to pass a law or regulation about it. There is a difference between a Permission Society where you have to get permission to do whatever you twoish do in advance and a Liberty Society in which you dont have to get permission in most cases. Yeah. That is the difference. I dont think there is a place here you can draw that line. Look at the overall picture and you can see whether it is being onscientiously followed. Of course you can always make an argument in our time too thats dangerous and why it has to be controlled. No matter how little the danger might be, really, so yes. That is always a problem. I think trying to draw that line in a reasonable, sensible way is where you get into the point that, you know, youve got all this has to be viewed from the point of view of using prudence to implement. Meaning circumstantial judgments that arent going to be based on absolute rules will be necessary always. And if you dont have that framework in mind of the presumption of liberty youre talking about, then ail be closer to what we are now than o what they were then. Alex . Yeah. So you said in the introduction that you meant this book to be descriptive of the the founders theory or founders political theory. Im not sure i necessarily got that from the book. It felt like through most of the book you were at least defending their point of view or looking at it in a very favorable light or giving them the benefit of the doubt quite frequently. I was wondering if you could perform a selfcriticism here or look at kind of the theory of the founding and talk about where you thought the founders about rong or talk where the founders got it wrong or were inconsistent or you disgrea with the founders and the political theory you put forward in your book . I think one of the things makes me tolerant or falvey inclined toward their way of falvey inclined toward their way of thinking about politics in many of the essentials it corresponds to the way many people, many philosophers over the years have thought about politics. Even in europe in the 17th century. Ive been recently reading Thomas Aquinas in a class and just shocking parallels in terms of his advice about how political life ought to be nderstood. Aaquinas had low expectations. He said most people are pretty bad in virtue and you ought to stick to things like laws against murder, rape, left, and so forth. Harm to person and property. Now aquinas did not talk in terms of natural rights but thats what that is. The idea of limited government most d on things that people are going to be able to to behave in a reasonably moral manner. Of course people should elect their own rulers assuming they have Healthy People and are capable of a good job. Otherwise no. That is the view the founders held as well. They thought consent of the government is a fundamental principle but if the people are themselves so corrupt theyre incapable of liberty they thought youre going to have to go with some second or third best system. So there are many of the things that we find in this particular set of doctrines that seem maybe very specifically 18th century to us because of the language used that correspond to elements that are always in some way going to be necessary to treat in public life. At one point in my discussion of the virtues i brought up in eachs critique of what he alls herd animal morality. Which only really means what are the rules people need to live together in peace and harmony . Even in each admitted you have to have them. Which means he was himself admitting there is a kind of natural right. There is a human nature being what it is whenever people get together in communities they have to be there are going to have to be rules about not arming each other. And there have to be rules that sometimes people have to step up and be ready to fight and kill to preserve the extis ens ofth community. So the policies needed and orientation toward preservation and peace is there. That is something thats always there. Call it what you like. I think in our time the language of the founders, the language of natural law and natural rights is very hard to make that intelligible to people now. And im not sure how important it is to make it intelligent. I mean, i was reading the first statute of liberties is that what it was called . Comparing natural laws to the kinds of things an architect or farmer has to know to build a building correctly or farm a farm. Just facts. Got to figure it out or the building is going to fall down. That is kind of what natural know some basic, minimal things that have to happen or your society wont be able to survive in relative peace and harmony. I think what the natural rights doctrine adds to the general of of need for basic rules conduct that preserve the peace sharpens the role of government like a vaguer document like Thomas Aquinas doesnt do. A was created to creegive much easier way, more definite than before to clarify government intrusion into the private sphere especially the religious private sphere using the force in government to compel people to submit to a particular religious orientation. It was absolutely crucial i think in the evolution and development of the natural rights idea in the 17th century england. And still useful today. Still, when i see these politicians today talking the language of natural law and natural rights, paul ryan and ben sapp i dont think they know what it means or believe in it. Ts slogans now. I can quote the constitution, the declaration of independence, then just tell you whatever Public Policy idea i happen to like or my donors happen to like. So, i think there is that problem and any attempt to use that language and limit your arguments to the specific language of the founding. I think ive gotten away from your question though. My question is do you disagree with the theory that you were putting forward in the book . I hear you describing your book as a subjective look at founders natural theory but i cant recall you criticizing them in the book. That was the bottom line question. What do you disagree with the founders about, right . Yeah. Which fundamental belief that they had do you think was wrong . Yeah. I dont you know, i think the reason i went off on my digression was to say, if you think ofth way of thinking about politics in a broadway like i just described it is going to be hard to pick a fight with them. Ive indicated this are some things they did or didnt do that were not so good. I think, for example, in regard to the family, and family law, i think they had way too high an opinion of women. Which may come as a surprise to some of you, but they the writings of that period tended elevate women over men in terms of womens superior understanding of morality. We men need to submit to womens guidance because they are the moral half of the species and we need their help to become civilized. I dont remember that from the book. I didnt talk about it in the book. But that was a thing that kept i guess i have to say its something thats been bothering me more and more recently. You know, there are some things like that in the founding. You wonder. What were they thinking . Men and women are both pretty bad. And pretty good. I mean morally speaking. I dont see any moral superiority. Theyre different. Men and women are different i ould say but in terms of specifics there are things about the constitutional system that seem to have not worked out very well. The judiciary is out of control and in some ways it always has been. Dont know. Im trying to stay away from those kinds of questions in this broad treatment. Was attacked. I was talking about this book a few days ago. Some scholars attacked me from the right or the founders from the right saying they werent tough enough in their view of the family. They should have been more patriarchal. They shouldnt allow any divorce. You can make those kinds of arguments. I dont know. It seems to me that what i wanted to get across in the chapter on marriage was they thought government needs to be pro life in the sense of pro new life generating new life. They wanted people to get married and have kids. But, also, they wanted marriage to be an institution that benefited everybody in it. And it wasnt, i mean one of the people i was talking to at this recent discussion i had at another institution that was saying the founders didnt understand that selfsacrifice s the essence of marriage. And the founders wanted marriage to be something that was good for everybody. I said, right. That is what they wanted. T wasnt about selfsacrifice. It is not about selfsacrifice in Thomas Aquinas either. He talks about it as being good for everybody. Now we all know bad marriages and bad families exist. But the point of the idea of the support of the institution and it was meant to have, to be good for most people in that situation most of the time. So i dont i dont have thinking about it from their understanding of things from that broad point of view i dont have reservations about their way of thinking about politics. Jason . The same way the Supreme Court has derived these fundamental rights from the bill of rights, is there any sort of analogy in natural rights, natural law, any way to find an ancillary right that derives from life, liberty, and happiness or is it all just as you said prudential from there on out . I think the specifics im wondering about is if you mention the government has responsibility to incull kate virtue in its citizenry through education, if the government has a responsibility to educate its citizens might there be a corresponding right to an education . As a civil right, you mean a legal right, not a natural right. I think natural rights in the state of nature. Youre not really it doesnt make sense to say you can say other people have a duty to fund your education other than your parents. But in Civil Society, part of what we do, my argument about welfare, part of what happens in Civil Society is there is a compact that were going to have a government that will protect life, liberty, and property, which might also mean protect in extremities, like extreme poverty, extreme circumstances, orphanhood. Disability. That would include a legal right to welfare as a consequence of the natural right to life, liberty, and property as protected through the legal system created by the social compact. The at indirect way, natural right to life would in fact lead to a civil right to government of support in extreme circumstances. But of course then youd immediately have to add their corollary, which is it would always have to be given in such a way it didnt encourage free riders and, you know, people taking advantage of the system who really didnt need it. And so thats why they came up with the idea of group homes in which there would be work requirements for the able body. Is that what youre getting at . Yes, thank you. Garret . So it seems like one of the things weve been circling back on over and over again is the distinction between that sort of theory they were trying to bring about and grappling with what that meant in real life. Thats been sort of a focus of our conversation today in a lot of different ways. And, also, you mentioned, professor barnetts book and the broader idea that natural rights are in some sense derivative of Human Experience like the farmer and the architect who through some form of trial and error get better and stronger principles that lead to better outcomes. So, too, can we from our own Human Experience in history and living together in society derive better app stronger principles of natural law and natural rights. I wonder a little bit on how the experience in the subsequent too years might inform an alternate history of those people with those ideas but trying to birth a nation today against the back drop of more Human Experience. You know their ideas so well. I was with you all the way up to the question. So madison, jefferson, washington, hamilton, are in a time machine and theyre birthing a new nation with the benefit of 250 more Years Experience like we have now and how you might think about those ideas manifesting against the backdrop of having more historical experience. Well, the first thing that comes to mind is that, you know, a comment that was often made in private writings at the time of the founding was what are we going to do if this system works . Well all get rich and its going to lead to corruption. Look at history. Any time any nation is successful and wealthy it has led to the decline of virtue and the loss of freedom. And they didnt really have an answer to that other than to say, lets do the best we can to try to anticipate that by doing what we can to get, set up a system that will control private selfishness and at the same time try to foster the right kind of moral orientation. And religious, too, to some extent. But they didnt have any hopes. I dont think they believed you can have a solution to the political problem forever. So if they were here now, i dont know what theyd say. Theyd say, look. You are in a situation that is a lot harder to deal with than what we have. In some ways it is easier to deal with people when theyre poor. They have better sense about what the limits of human life are. People, you know, look at people today. They act like there is no such thing as necessity and wealth is going to be floating around forever and we can just keep on keeping on. That is one problem. And if you think about the collapse of malefemale relations which i regard, i think from their point of view would be regarded as a huge problem, maybe the greatest a, e problem of our time, no one now wants to even talk about that because it is too contentious and, b, what can you do in a situation where women dont need men . In the way they used to . A an, i can remember i had babysitter one time when i ived in dallas and she was talking, my wife when she was pregnant oh, yeah my niece is pregnant too. Grace was like oh, yeah. What does her husband do . Oh, she doesnt have a husband. She has a good job at texas instruments. The whole attitude was, why would you want a man in the house . To put up with . That is a reasonable life choice now. It wasnt so easy to do 50, a hundred years ago. And people, you know, the people in the founding, that is not a world they were even thinking about. What would you do in that world . I dont know. I can think of some changes in family law and divorce law that might be useful. That might make it, give people more incentive to make efforts to Stay Together but those are kind of minor adjustments i would say. Every circumstance politically even if you have principles you think are right their application is going to be very difficult in any given time. Obviously youre not able to bring back sodomy laws for good, for better, or worse. I take for better. There you go. The book emphasized state constitutions and state bills of rights for divining the theory of the american founding. What was the ration al behind emphasizing those kind of documents and not say the United States constitution . Right. So my question throughout was, you know, what are the natural rights . What is the natural law . What are the basic principles of right . And then what does government have to do to make the natural law enforced, protect rights . And the answer in the founding was, well, thats not going to be answered on either the federal or the state level. Were going to do both. And the basic division of labor was of course the federal government does Foreign Policy. State governments do domestic policy. With some exceptions with regard to property law at the federal level. I mean, there was a number of constitutional provisions about property, money, commerce, and so on that they thought were important to federalize because of the states in many cases refusing to allow the existence of a National Free market. Other than that, domestic policy was mostly left up to the states. And so thats where you have to go to look and see what did they think government should do and why . So, you know, various official and formal statements about why education matters. You arent going to find much of that at the federal level. A few speeches of president s occasionally but that was the job of the state governments. And so to understand the full picture of what the founders theory means practically you have to go and look at both levels of government and not ust the federal. Jim going back to an earlier answer where you mentioned different philosophers you drew from i found it to be one of the more interesting parts of the book. I was wondering when you were choosing who to reference in comparison to the founders thoughts. Were you choosing them based on your own expertise or exposure, generally d have been influential on the founders or you thought there was just a good synthesis there between those ideas . Are you talking about my mentioning the various european thinkers . Yeah. Plato, ay back to socrates, going through the as ics and up to nichte well . I tried to reply to european philosophers not in the context of influence at all. I was i tried hard to not talk about influence. That is such a complicated thing and so many people want to write about that and get into it. And i am interested in it, in that question, but i thought that is not what this book is going to be about. So when i did bring up those writers, authors, philosophers, european going back to the ancients i did it in the context for the sake of comparison for the sake of clarifying what is distinctive in the founding. And whats not distinctive. And so that contrast say with the plato famously in his republic has this idea that there shouldnt be any private liberty. It should be all about virtue. Government should be totally dedicated to forming character and obliterating private life to that end. And so i thought, ok. Thats a good contrast for me to bring up to show how the founders way of treating virtue was very, very different. They wanted the treatment they wanted government involvement to be pretty minimal. Expecting that to be mostly a matter for private institutions like the family and the hurches. And so at the same time, they thought there was some need still for government to be involved in that just as plato did in a much more extreme way. So typically i brought up these thinkers in that way. Just to clarify, contrast. To create a sense of what the founders were up to in terms of the differences. James . Yes. In your section on Government Support for religion, you talk about religious litmus tests for elected officials, how they are sort of on the way out at the time but technically compatible with natural rights theory because it is not a natural right to vote or hold a Public Office or Something Like that. The question i have is when you talked about where they get the idea for natural rights and natural rights liberty you talk about one of the arguments as coming from the idea that no human is so different as to have a greater right to rule other human beings than the other person. The argument from human difference or natural fitness is i think what it is called. It seems to me having that sort of litmus, having only religious people or people of a certain religion eligible to rule sort of undercuts that basis for natural rights particularly where the natural rights to freely practice religion is also identified as a natural right. How do you deal with that tension . I suppose that is certainly much truer today wouldnt it in much because, you know, fewer percentages of americans are protestants or christians or even theists in comparison to back then. But when i made that remark about the exatibility of religious exatibilityy of religious tests for office with natural rights i was thinking in the same context as saying a rule that says you have to be 5 to be president. Compatible a rule that says you have to have this or this qualification to get into this university or apply for this job. There are many ways the government creates tests that eliminate large categories of citizens or small categories from these positions of power. It is like having people ruled without their consent to that degree. I thought something they believed was a relatively minor intrusion or maybe wasnt even very important. I will say this. Many people in the founding thought religious tests were in conflict with natural rights. I didnt mean to say that my own judgment on that based on what i you know, on my assessment of the debate of that within the founding is definitive. And certainly one reason why dropped or at least not enforced in relatively early in American History is that sense of, you know, can we really be saying to some citizens you are not good enough to serve in Public Office because of your religion . There were cases early on, some early cases where people were elected who didnt meet the religious test and that nobody complained. That happened, too, sometimes. Especially later in the 19th centuries that as that practice was, became less and less important. But yeah. That is a reasonable challenge to that practice. If i can amp this up a little bit i think this was in james paper and another students critique as well. Maintain that to the founders distinguished between natural rights which were liberty rights, the rights individuals had, and Political Rights. Which were rights of participation in the political system. That distinction helped explain y women who were persons and citizens and recognized to have equal natural rights were not recognized to fully participate in the political system because Political Rights were simply different from natural rights. That is standard. What james paper and another students paper raised was this notion that there were several instances in the book where the founders emphasized there was no natural right to rule. And there was no natural obligation or duty to be ruled. And so ruling, the power to rule was somehow actually also bound up in natural rights theory such that possiblyy it would seem on nah view it might actually not be consistent with natural rights theory to make a sharp distinction between liberty rights and Political Rights as we understood and believe they made, then and all the way up through the 14th amendment they continued to make that distinction. Do you see in your reading, you dont have to be a philosopher that makes your own philosophical claims. But do you see in your reading of the founders any assertion of a right to rule or denial of a right to rule that would support Political Rights . Do you even see Political Rights being advocated on that basis . I do remember one example of a congressman debating the 14th amendment i believe it was. It was certainly during the reconstruction era who cited Herbert Spencers law of equal freedom from social statics and he expressed the site social statics in defense of the right to vote in the district of columbia which congress had authority over. So he connected natural rights with Voting Rights. Do you see any evidence for that connection in the past . Do you think perhaps there should be a connection like that . Yeah. I think people in the founding believed that Voting Rights are Voting Rights for citizens in principle for every citizen is in principle required by the terms of social compact. Because the social compact is we are going to agree to be governed by a set of rules for the common good and also agree that in this government we will have arrangement for ongoing consent to be expressed through majority rule. Thue election. They often talked about it. They often talked about a kind of natural right to vote. What that means is in order to explain how they viewed, how they actually treated Voting Rights in practice, you have to talk about it. That they provided multiple arguments about why certain groups could be excludable. Specifically, with regard to children, the argument was they are to dependent and they have not had enough experience for the world to understand what is going on. Today. L do that we exclude large categories of citizens from voting on the arbitrary ground that they are below 18yearsold. They had a parallel argument with regard to whitman, partly based on the idea that women were going to be less wellinformed about politics because their way of life is more typically in the household. To be dependent upon their husbands for their livelihoods it will not give an independent vote of their own. Probably the most important was, women and men have a common women arend therefore virtually represented. The very argument that was denied in the case of the British Parliament the british would claim you are virtually represented in our Parliament Even though you dont. T to vote for they use that argument to theude women at the time of founding. In other words, that men and women when you have society organized around the idea that people are going to get married and stay married, they will indeed have common interest typically. Pulling in theed 1920s, they decided they whenen they started was therted polling, it same. Fear until the 1960s. Starting in the 60s. That was a kind of argument they made. In our time, people would think you are crazy if you may does the of claims, but i guess empirical evidence supporting their claim is once they started voteng, people tended to alike. But it is true, people did not ask the women of america, what do you think about revolution . What wouldve happened if women voted . I do not know. Back to your question, wayander, about in what would i disagree with the founders. Im ok with women voting. I would go with the new jersey policy that allowed women to vote from 7076 until whatever it was, 1807. That wouldve been better. But it would not of matter and i would argue. Because the common interest of men and women in a society built on families. We are starting to get down to the last stretch. How about anyone who is not yet spoken or asked a question, do want to jump in . Andrew the section on Foreign Policy, you mentioned the conflict with native americans and expansion. How do you rationalize that [indiscernible] you quoted some documents that call them savages and barbarians. Is that supposed to be a justification . No. The declaration of independence refers to them murderous indians savages that have been unleashed by the british on the frontier. To terrorize. Settlers on the frontier. The reason they were called savages is because they would just murder everybody and did not restrict killing two enemy soldiers. So, they are savages because of how they behaved not because of anything inherent in them. That was the claim there. Theurned out that was true, british were doing that as a matter policy. Trying to get indians to start murdering civilians. That was admitted in parliament discussions. E with respect to the question of what to do about the indians, this is another case of conflict of rights. You have People Living in the u. S. Right now, in the territory that became the u. S. , that were living there at the time of the founding who had some claim, obviously, on that territory. That is where they lived. On the other hand, they did not live in the way the white settlers lived in terms of having settled boundaries, farms, and property arrangements assigned to individual owners protected by law and court. In some ways, up from the point of view of the founders indians were still in a state of nature. It was a question of people acquiring property by individual action. Killing a deer, Something Like that. And temporary farm but then they would move on. But what do you do with them . There was hope in the 1790s that there would be assimilation. Indians would become part of the population. At that gradually became clear indians did not want to do that and also indians and whites were busy killing each other on the frontier during that time so was difficult to have a peaceable relationship. Whatever the intentions of the founders on the topic were, there was going to be a conflict toween their indian rights have their life in the way they wanted to on large areas of land that were not cultivated versus the settlers, who wanted to have farms and live in that way with a much larger population. Course, since there was continual warfare it was also a question of protecting against violent death. So the indians had to be kept protected against militarily. Was, what ended up happening was Something Like this reservation idea. Theys parallel to what were thinking of doing with free blacks. Creating a place for them to live apart from the rest of american society. Not as citizens but as around people. But of course, since they were powerful and dangerous from the point of view of the governing majority, they were held down by the government so they did not really have an independent political existence. It was quiet like, independent. They were in a situation of it was quasiindependent. Situationin a partial , wanting to live in the way they were and not the way the whites were living. In some ways, it is parallel to the situation in israel today. A large number of People Living in the territory that in some ways is israel eat territory, the territory is rail claims israel claims and is really hostile to the population that makes up the governing population of israel. What do you do with them . The answer the israelis came up with is parallel to the answer the americans came up with indians. Kind of like indians on the west bank of gaza where they kind of get to govern themselves but in some important ways do not get to govern themselves. It is a situation that cannot be justified from the point of view of founders of natural rights except out of necessity. Thats all it is. You cant make sense out of it. Read the Supreme Court decisions early on when they were still talking in terms of natural rights. Trying to make sense of the indian policy, it was hard to do it. Except in terms of necessity. We do not see a better way to survive under these circumstances then to do what we are doing. Obviously, it is wrong and some important ways, the way the majority ended up treating the indians. There was not as though was an easy answer to how it couldve been done better or differently. I have two different , i guess which one you would prefuror prefer. Ill give you a choice. Which one you prefer. Lets do the theory. It seems like the thesis of your book is that there was this uniform local theory of natural rights that republicanism is almost like subordinate to the end necessary to, and therefore not fully intentioned with and i guess i still have trouble basictanding that assertion, especially because for me, in the context like andrew said about indian rights, i look at a native american Cherokee Nation that developed like a Printing Press and formed a legislature and applied and were heard before the Supreme Court and they were rejected from their application to be part of the United States because of to me it seems like because of that georgia wanted the land they lived on, plain and simple. Made,r argument could be still. In the context of women and maybe their inability to possess certain virtues that are more commonly associated with aggression and males. But if you cannot possess the certain Republican Values or youres, that therefore natural rights will be diminished. I guess iike finished the book still sing a attention or if anything, a subordination of republican virtues of the kind of nation the founders were trying to create. I guess i am wondering still how , with allese as being of the tensions you commented upon how uniformly they should be looked at as a coherent rights there he and not different theories. The rights theory and not different theories. Some can be explained in terms of sheer greed. The georgians wanted that land for themselves. I would say that is a correct explanation of what happened with the cherokees. Or necessity. You have this hostile population does not want to live in peace and harmony with the existing population, at least given the way the existing population thinks it needs to live. So you have some conflict of rights. Also, just plain selfishness. Where rights can simply be violated. That happens. That is part of our history, too. To with regards republicanism and liberalism, can you really say that there is harmony between the idea of securing natural rights and a government that gets involved in shaping character . I think you can indeed make the case there is harmony on the grounds that the basic sensible of the social compact is you have to give up some of your natural rights for better security of the ones you do not give up. That is the way they talked about it. You have to give up some rights. For example, your right to punish someone who harms you. In Civil Society, you are only allowed to do that in cases of immediate selfdefense. Otherwise, you are supposed to get the government involved in prosecuting whoever involved too. So you were giving up your natural to punish and respond to injury which from now on will be done by the government. One of the things youre giving up is your right to decide on you kind of education personally want your self or your children to have. That will be supervised and guided by government. That is part of what i am saying about the question of marriage, too. Muchstate of nature, it is looser. You marry or dont marry. In Civil Society, there are rules. Heres how we will do sex in Civil Society. The only way will be done might will be if it is in a married situation and we will define governmentally what that is. Will also define divorce and treated as a contract in court. So youve given up your right to decide that in a state of nature. There are rules you have to submit to in the same way have to submit to roles about the government doing the punishing and you no longer having that power. What happens. T is what you are saying. Early you can make sense out of what they are doing from the point of view of their own area. A worde nobody has said about Foreign Policy . Doesnt anybody think that is important . The founders do. [laughter] i want to make one comment on natural rights generally. Then we can come back to the question of Foreign Policy. It is important not to ask too much of natural rights theory. Natural rights is a humanly developed construct, that it has been eval up does a way to try to figure out what is right developed as a right to try to figure out what is right and a way to critique existing practices that fall short of what the construct would demand. There are two senses and which you can act too much. One is that natural rights are not selfand forcing. Notink simone said she did understand how it could even be a right if it was not enforced. They are true, and society does not respect them, that society will do poorly alatively or as compared to society that doesnt respect them. So i think there is a realworld consequence for violating it. And i do not think it will reach out from the ground or down from the sky and grab you by the itoat and say, you must do that way. So natural rights does not mean people will automatically follow them when their selfinterest argues another way like we want that land or we do not want to give up slaves. We need to figure out how we are going to reshape the right to structure itself so it will be consistent with what we want to do. That is what happens with any human construct. That is one sense in which you are asking too much. The second sense in which you might ask too much is it is a framework based on generalities. It is generated from what we have in common. What do we all share in common as human beings such that because of our common human nature and what we share in terms of the world, this is what needs to be protected. This is the jurisdiction we need to have. That is fine if we want to abstract from the particulars that there are a lot of particulars and differences. Natural rights do not take that all into account. Hits and makes contact with particular reality comment might not always give you obvious answers because of the way it was generated. The final thing is, when you ask too much of it, it needs to be developed. It is just like the natural law of agriculture, in engineering, medicine. You can gain with the benefit of understanding of what is right, what works, what is necessary, and what is not. You do not necessarily get it ast from pure reason that moment in time without putting it into effect and saying, that seemed like a good thing but now it does not quite work the way we thought. None of that means it is valueless. None of that justifies a conclusion. The way of evaluating good and wrong. Right and we have to understand its look atons and if we the founders as people who were really very vocally attached to this approach, these limitations of the approach they are attached to will manifest themselves in how they act and modify what they believe to correspond with what they want. That is being realistic about the best approach natural rights can yield. I would add one thing to that, which is that one of the things i think i learned in this project that led to this book is it ise are some true you should not ask too much but there are some things natural rights will help you with quite a bit. Stuff i tried to elaborate in regard to policy and fallacy consequences. In matter of detail it is often up for grabs and not so clear. With the basic framework of what to do, lets say to possess property. A lot of that seems to be needed. If you look throughout human history, Something Like those things have always been acknowledged. One of the points i made in that section is if you go back to platos republic to when he outlines the basic theory of how we will get goods and services produced, it is reminiscent of some of the basic aim to find in the founders on that same topic. So there is something there that seems to be always around. It can actually get you to some conclusions, many more conclusions that are often acknowledged by the scholars. Last question. My question is along the lines of what you are just saying. Matter, whencal there are concepts of rights, does natural rights theory point to any particular hierarchy or priority other than selfpreservation . Selfpreservation in the book. But other then that, is there one right that would always give right give way to another right . Mattert just a completely outside of the theory left to selfinterest or prudence or however else you want to make the decision . Thomas i dont think you will be able to say one way or the other how things would be resolved in case of a conflict on the oneecause hand, sometimes the most urgent thing will take precedence. Beingour lives are threatened. That is coming first. Sometimes in private life, will forgorgo their power over the other hand may be sacrifice for someone they love. Is not goingeory to tell you one way or the other whether that is the right thing to do. Typically, and conflict of rights the stronger comes out on top and that is how it gets results. But sometimes it is not that way. Went to headon i with regard to some of the questions ive been hearing, love you are interested in difficult situations. Hardicts, tensions, the questions. I did not focus my book on that. I was focused on, how do we solve the relatively easy questions which it turns out or not as easy to solve. What does a government need to do to protect life . What does a legal system look like that is going to both consistently punish murderers and at the same time make sure the innocent do not get caught up in it . You need both. You need Something Like due process of law for that to happen. In the old sense of doom presses. Due process. System for the person to defend themselves and a system in which the government is likely to get the conviction of the person is guilty. That is how they thought about these questions. I think you guys should think about these ones and how hard they are, too. Protecting life. Protecting children. That is a huge issue. Child abuse, abandonment, mistreatment. They wrestled with that. Like it or not like it, that is something everybody has to think about. So i would say, do not expect too much from the theory but at the same time that theory can help is quite a lot in regards to think about what are some of the main things government needs to do to provide that level of protection that can lead to peace and prosperity and the occasion for most people to happiness. Y pursue host it is time to conclude our discussion. Writing this book that stimulated a lot of thought. We thank you for taking your time to come to washington, d. C. , to georgetown law and talk about your book with us. We thank you very much. [applause] announcer us every saturday evening at 8 00 p. M. And midnight eastern as we join students in College Classrooms to hear topics ranging from the 9 11. An revolution to lectures and history are also available as podcasts. Visit our website or download them from itunes. Night,ncer sunday talking about growing up with survivalist parents and the idaho mountains in the book educated a memoir. Are a lot of people same to have taken seem to take into heart that you have to have a degree, and in its jewish and to teach it to you. Im grateful to my parents i was not raised like that. When i decided i wanted to go to college at age 16, it seemed like something i could do. I needed to learn algebra. I could buy a book and do that. I kept going with that. Too, my parents took it far. I arrived at university on prepared. Of theever heard holocaust. People thought i was denying it. I was not. I had never heard of it before. So i would not say this was the ideal education. Night on sunday cspan2. This weekend on american artifacts, we visit the American Institution for legislative archives to learn about clinical cartoons from the early 20th century. Preview. President roosevelt in 1902 went down to mississippi to settle a dispute. He was on a hunting trip. It was a several day hunting trip. The press covered it. He was unsuccessful. He was not able to find and kill a bear. His aides did not want the president to be embarrassed by not having a successful hunting trip so one of them hunted down a sort of old bear and tied into a tree and called the president over and said, here president you can shoot this bear. The president said, i will not shoot that bear. And, berryman took that will bear and turned it into a cute cuddly teddy bear he called it and it became a really popular stuffed toy. So he was the one that point bear. Rm teddy india became a recurring and charactera recurring in his cartoons. Announcer for nearly 20 years, on book tv has featured lots of writers and conversations about their. Books this year, were featuring writers in our Monthly Program in depth fiction edition. This writers novel was made into a Motion Picture and his most recent book is the frozen hours. Writes novels that recounts the military history of america, from the American Revolution to the korean war. During the program, we will be taking your phone calls, tweets and facebook messages. , sunday,ff shaara march 4. On book tv, cspan2. In the landmark 1954 brown v. Board of education case, the u. S. Supreme court decided that state laws establishing separate schools for black and white students are unconstitutional. El america, a country decides, a documentary film documenting the difficult process of integrating the citys public schools. It is sponsored by the fund for the republic and the ford foundation. The film was directed by Charles Guggenheim and nominated for an academy award