Fulfilling the Enlightenment: Interview with David N. Mayer

Description: In this interview, David N. Mayer expands upon a talk he gave at the IOS/Cato-sponsored conference, “Atlas and the World.” The main point of that address was: “Atlas Shrugged is significant because, through the novel, Rand shows us what we must do to complete the American Revolution, to complete the unfinished work of 1776, and the hope that it represents to the world.”

David N. Mayer, a professor of law and history at Capital University in Columbus, Ohio, is the author of The Constitutional Thought of Thomas Jefferson (The University Press of Virginia, 1994) and several articles on American constitutional history. In 1997, he spoke at the IOS [now known as the Atlas Society] summer seminar on “The Declaration of Independence as a Literary and Philosophical Work”; at the 1998 IOS Summer Seminar, he spoke on “The Welfare State vs. the Constitution.”

Navigator: In your “Atlas and the World” lecture, you observed that “America's Founding Fathers . . . established—for the first time in the history of the world—a society whose government was founded on recognition of the inherent, natural, and inalienable rights of the individual.” What moral philosophy led the majority of the Founders to believe that such rights exist and should be the basis of government?

Mayer: Although virtually all the Founders subscribed to natural rights theory, sadly, there was no consensus for the philosophical basis of such rights. Eighteenth-century American “natural rights theory” was really a coalescence of several different rights theories with distinct philosophical foundations: Christian natural law theory (which, through Thomas Aquinas, might be ultimately traced back to Aristotle); Christian “revealed” religion (through its emphasis on the sanctity of the individual as God’s creation); Lockean “social compact” theory; the deistic “natural religion” of Enlightenment theorists such as Bolingbroke; Scottish Enlightenment “moral sense” philosophy; other types of secular Enlightenment natural rights theory; and the natural law jurisprudence of treatise writers such as Grotius, Vattel, Pufendorf, and Burlamaqui. What all these diverse theories had in common was the notion that man, by his nature as a volitional being, had individuality. Life, liberty, and the pursuit of happiness (the three fundamental rights identified by Jefferson in the Declaration of Independence) were “natural” rights in the sense that they were grounded in the nature of man—whether understood through a rational philosophy or accepted as a matter of religious faith.

Navigator: The principal point of your “Atlas and the World” address was that the moral foundation of America's new political system was flawed. Specifically, you declared: “Under either the traditional or the ‘enlightened’ ethics, it was regarded as ‘immoral’ for an individual to pursue his own self-interest, even if he did so in such a way as not to interfere with the equal freedom of others to do the same.” Did this flaw find its way into the Founders’ theory of rights, and if so how?

Mayer: It wasn’t really in rights theory—which was profoundly individualistic—but in the English common law, as it was received in America, that altruism entered in such a way as to undermine the moral foundation of the Founder’s “new science of politics.” To take a simple example, keepers of inns did not have the freedom to charge market rates for lodging, food, or drink; rather, their rates were fixed by the government, both before and after the Revolution. Under the English common law, certain businesses—those regarded as businesses “affected with a public interest”—could be regulated by government, in the name of protecting consumers. In a free, capitalist society, such controls make no economic sense and are unjustifiable under rights theory, but they persisted in American law simply because of precedents set under English law, going back several centuries, to a time when owners of places that accommodated the public needed permission of the King’s government to operate upon “the King's highway.” Such holdovers from a paternalistic legal system are the foundations upon which the twentieth-century American welfare/ regulatory state are built, as I will demonstrate more fully in my “Welfare State” lecture at the next summer seminar.

Navigator: In your talk, you placed great emphasis on the influence of men you called “radical Whigs.” Who were they? What did they believe? And who in America did they influence?

Mayer: They were three generations of English political writers, from the late- seventeenth century to the mid-eighteenth century, who are called “radical” Whigs to distinguish them from mainstream Whigs in English politics. John Locke was probably the most famous, certainly of the first generation. Others include Locke’s contemporary Algernon Sidney; the authors of Cato’s Letters, John Trenchard, and Thomas Gordon; and, later in the century, writers such as James Burgh and John Cartwright, whose works directly supported the American Revolution.

Although their ideas varied from generation to generation, depending on current political controversies, all the radical Whigs had in common a basically libertarian outlook. Unlike mainstream English political writers in the eighteenth century, they did not regard the Glorious Revolution of 1688–89 as the culmination of the struggle for liberty in English history. They criticized the eighteenth-century English constitution (which most English thinkers regarded as the most perfect devised by man) as seriously flawed in a number of respects: the absence of religious freedom and the narrow scope of freedom of speech or press recognized under English common law, the concentration of power in Parliament, the lack of any constitutional check on Parliament's power, the unequal representation of the people in the House of Commons, and so on.

Most of the Founders’ generation were intimately familiar with these radical Whig writers—the libraries of men such as John Adams and Thomas Jefferson were filled with their books—and their ideas had a profound influence both on the Revolution and on early American constitutions, as I discuss in my article, “The English Radical Whig Origins of American Constitutionalism,” published in Washington University Law Quarterly in 1992.

Navigator: Barry Alan Shain, in his Myth of American Individualism, propounds a thesis adequately described by his subtitle: The Protestant Origins of American Political Thought. To what extent do you think Protestantism was responsible for the political philosophy of America circa 1776?

Mayer: Christianity, and particularly Protestantism, did make important and positive contributions to early American political philosophy. As I mentioned previously, religion was one of the major sources of natural rights theory; and many Christian ministers were influential spokesmen for liberty at the time of the American Revolution. To ignore or to dismiss the important role that religion played in early American thought, as many Objectivists are apt to do, is just as wrong as to credit religion as the exclusive source of the Founders’ rights theory, as many religious conservatives do. Early American intellectual history was a mixed bag, containing ideas derived from both the Judeo- Christian tradition and the secular Enlightenment traditions. Moreover, as I understand it, Protestantism itself is a kind of mixed bag, consisting of some ideas that indeed foster individualism and others that foster collectivism. The so-called “Protestant work ethic” provided the moral foundations of capitalism for many people in early America, while the altruism that lies at the heart of Christian ethics provided a moral foundation for socialism to others in modern America.

Navigator: Conservatives often argue that the American Revolution was based not on individualism, ethical or political, but on a spirit of "civic virtue." What do they mean by “civic virtue” and do you think it was a significant element in the ethical outlook of the Founders?

Mayer: For several years in the late 1970s and 1980s it was fashionable for academics, not only conservatives but also many so-called “liberals,” to de-emphasize the radical Whig, or libertarian, American political tradition and emphasize a communitarian political tradition—variously called “civic humanism” or “classical republicanism”—that stressed the notion that a “good” citizen ought to subordinate his self-interest to the “public interest,” or “common good,” of the community. The tradition can be traced back to ancient Roman political writers, whose ideas influenced modern European political thought through Machiavelli and other republican theorists of Renaissance Italy. Thus, J.G.A. Pocock’s influential 1975 book, tracing the influence of this tradition on Anglo-American political thought, was titled The Machiavellian Moment.

Pocock showed that there were many strains of this tradition in early American political thought, and one consequence is the hostile attitude toward commerce and commercial activities that has long been part of American culture and law and provides a rationale for government regulation of business in the name of the “public interest,” even to the present day.

Following Pocock, other historians argued that many Jeffersonian Republicans also shared this political view. However, my study of Jefferson’s constitutional thought found little evidence for the influence of this tradition on Jefferson himself. Rather, he was far more profoundly influenced by the radical Whig or libertarian tradition, which I regard as the dominant tradition in early American political thought. Most probably, the civic republican tradition affected the Founders’ ethics, and came into the mainstream of American politics only with the rise of the so-called “Progressive” movement in the early 1900s. That is the sense, as I argued in my “Atlas” speech, that the mixed ideology of the Founding period made possible the so-called “mixed economy” of the twentieth century.

Navigator: To what extent had Enlightenment authors, or others, tried to work out the governmental institutions that would properly embody and safeguard the principles of liberty?

Mayer: Basically, because their enterprise was essentially unprecedented, the Founders had to improvise. Some of the radical Whig writers had pointed out the problems they had to solve. For example, James Burgh's Political Disquisitions, published in 1774, observed that “Our ancestors were provident, but not provident enough. They set up parliaments, as a curb on kings and ministers; but they neglected to reserve to themselves a regular and constitutional method of exerting their power in curbing parliaments, when necessary.” The Founders solved this problem through written constitutions, framed in special conventions formed for the sole purpose of drafting a constitution, and ratified by the people—what we in America take for granted as the difference between constitutional and ordinary, statutory law. But this basic idea, of the way a constitution derives its authority from the “consent of the governed,” wasn't immediately obvious to the Framers. Not until 1780, in Massachusetts, did this special method of adopting constitutions become standard, and that was largely because of political circumstances, the fact that an earlier provisional constitution was rejected by so many Massachusetts town meetings. Seven years later, when the delegates to the Constitutional Convention in Philadelphia adopted a new federal Constitution, they followed the Massachusetts example and had it ratified by popularly elected special conventions in each of the states rather than by the state legislatures. That made the Constitution “the supreme Law of the Land,” trumping inconsistent statutory law, whether passed by Congress or the state legislatures, because the Constitution’s authority derives theoretically from the will, or consent, of the people of the several states.

The other key safeguards for liberty (or safeguards against abuse of political power) that the Founders instituted—some in the constitutional text and others in political practice—similarly originated more out of experience than out of design: federalism, separation of powers, checks and balances, bills of rights, and the authority of courts to enforce the Constitution through the power of judicial review.

Navigator: If you had to pick the one original governmental institution created or developed in America between 1776 and 1826 that most helped guard liberty, what would it be?

Mayer: I’d say judicial review, the authority of courts to declare unconstitutional (and therefore to nullify) laws and other actions of government that are inconsistent with constitutional provisions. Alexis de Tocqueville, in Democracy in America, argued that this power “forms one of the most powerful barriers that have ever been devised” against the problem that he identified as “the tyranny of the majority.” The particular aspects of liberty that are most broadly protected in American law today—freedom of religion, speech, and the press—exist because the First Amendment added their protection explicitly to the Constitution, and the Supreme Court, in exercising its judicial review power in the twentieth century, has broadened the scope of protection against both state and federal laws that abridge such freedom. Of course, as I’ll discuss to some extent in my lecture this summer, the Court has failed abysmally in its enforcement of other constitutional protections. Since the late 1930s it has effectively ceased limiting Congress’s powers to those enumerated in the Constitution, and it has followed a double standard in protecting rights, virtually eviscerating all the constitutional safeguards for property and economic liberty, while inconsistently protecting other, non-economic “civil” rights. But however imperfect the Court has been in enforcing the Constitution, I shudder to think what would be left of individual liberty today if all law were determined by the legislatures. We'd have full-blown majoritarian despotism, “the tyranny of political assemblies” that Tocqueville so fearfully described.

Navigator: What institutional changes would you like to see in a new constitution?

Mayer: First, I’d like to strengthen—or, indeed, bring life to—the Tenth Amendment by adding the word expressly, so that it would read, “The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many Anti-federalist opponents of the Constitution in 1787 wanted this change, to bring the Tenth Amendment back into line with the old Articles of Confederation, which had used the word expressly in a similar provision. This change would not only strengthen federalism but also safeguard individual rights, by reaffirming the Founders’ design of a federal government of strictly limited, enumerated powers.

Second, I like the idea of term limits—or, as Jefferson’s generation called it, “rotation in office”—because it would lessen the corruptions of incumbency and encourage more involvement in public affairs by the general public. For those reasons, radical Whigs supported “rotation” in the eighteenth century, and their arguments make as much sense today as they did then.

Third, I’d like to add to the Constitution some of the features found, interestingly enough, in the Confederate Constitution of 1861: a single six-year term for the President, deletion of the “general welfare” clause, a provision requiring all bills to be limited to a single subject (to discourage omnibus appropriations bills), and other provisions restricting special-interest spending. As I point out to my students, the Social Security Act would have been impossible under the Confederate Constitution.

Navigator: In your “Atlas” lecture, you said: “By presenting a new code of ethics—the morality of self-interest—[Atlas Shrugged] provides what the Founders failed to grasp, the missing element of the American Revolution: the moral justification of capitalism, and with it, of the rights of all persons.” Could you elaborate?

Mayer: The Jeffersonian system of limited government failed because the Founders’ generation had no consensus about where exactly to draw the line between individual liberty and the coercive power of law, especially in the realm of economics. Constitutional protections of life, liberty, and property by themselves—ungrounded in a coherent theory of rights—have been proven insufficient to guard individuals from the tyranny of the so-called “common good” or the “public interest.” Objectivism, by justifying capitalism on moral grounds, provides a sounder theory of individual rights, one that protects the property and economic liberty rights of all persons, including businessmen. So, in sum, I'd say that the surest way to complete the American Revolution, and really place the Founders’ “new science of politics” on a firm philosophical footing, would be to convince everyone to become an Objectivist.

Having said that, however, I’m not convinced as a practical matter that we must persuade everyone to accept the Objectivist ethics in order to restore the Founders’ vision of limited government. The radical idea of the American Revolution was the notion of a new type of society: a “free society,” of liberty under law, in which the use of force—through governmental power—would be limited to a few absolutely essential activities, with everything else determined by the peaceful, voluntary cooperation of free men. I think that’s a powerfully attractive ideal, not just to Objectivists but to many other persons with fundamentally different philosophies. Many thoughtful Christian conservatives or libertarians—even though they adhere to an altruistic moral philosophy—can and do agree with Objectivists that government exceeds its legitimate scope when it forces individuals to sacrifice. Some conservatives (for example, the French political theorist Bertrand de Jouvenal, in his book The Ethics of Redistribution) have challenged governmental wealth redistribution schemes because, in their view, they erode morality: charity, after all, isn’t a virtue if it’s compelled by law.

Navigator: So you think Objectivists can help advance a Jeffersonian politics of natural rights in the contemporary political realm, even if that means joining coalitions dominated by utilitarians and theists whose advocacy of freedom is deeply flawed by Objectivist standards?

Mayer: Emphatically, yes, because I challenge the assumption that political coalitions are “dominated by utilitarians and theists.” I believe that Objectivists not only can, but must, join in coalitions with libertarians and conservatives in order to be effective in the limited-government movement, and that the critical role of Objectivists in that movement is to provide some much-needed intellectual leadership. Non-Objectivist libertarians typically base their political philosophy on certain axioms—especially the “no-harm” or non-initiation-of-force principle—taken simply on faith, with no philosophical foundations whatever; they need to learn the foundations that Objectivism provides. Similarly, many conservatives assume that without traditional Judeo-Christian morality, everything is subjective; they need to learn that Objectivism provides a sounder antidote to subjectivism, one grounded in reason rather than dogma. Strategically, in my view, the most effective way for Objectivists to help fill these philosophical gaps as political activists is not to stand on the sidelines criticizing non-Objectivists for their philosophical impurity but rather to engage them in dialogue and indeed, on particular political issues where we can find common ground, to work with them.

I disagree with Ayn Rand’s “rule” that “[i]n any collaboration between two men (or two groups) who hold different basic principles, it is the more evil or irrational one who wins.” That notion strikes me as displaying a surprising lack of confidence in the philosophy of Objectivism as well as in the efficacy of truth. Rather, I agree with Jefferson that, in a free market of ideas, truth will win out over error. We should not be afraid to collaborate with libertarians or conservatives, with utilitarians or theists, because we should be confident that Objectivism makes sense.

Navigator: How do you reconcile your statement that we need not persuade all of our pro-liberty partners of the Objectivist ethics with your suggestion that we get involved in order to provide intellectual leadership to the pro-liberty coalition?

Mayer: By distinguishing political activism from philosophical activism. A successful political movement must be broad- based; therefore, if we want to see governmental power reduced in our lifetime, Objectivists must be willing to work with people of differing philosophies who nevertheless share our commitment to limited government and the protection of individual liberty. We must find common ground with libertarians, conservatives, and even some so-called “liberals.” (I always qualify that term, as it’s used in contemporary politics, because I still insist on using it in its proper, classical sense.) As philosophical activists, however, Objectivists can simultaneously defend Objectivism as the best moral foundation for limited government, individual rights, and capitalism.

Navigator: Are you implying that it would not matter very much to a free country’s laws and policies whether theism or rational philosophy underlay the culture’s “natural rights” political philosophy?

Mayer: I would say that the philosophical foundations of the theory of natural rights—whether those rights are founded on faith or reason—certainly do create some differences with regard to the content of rights. Take the issue of whether the right to life includes suicide and assisted suicide. As Todd Goldberg discussed in the March 1998 issue of Navigator, someone who sees the inalienable right to life as a gift from God might reach a different conclusion from someone who understands the right from an Objectivist perspective. But both these positions are much closer to each other than either is to the positive theory of rights, the denial of the existence of inalienable natural rights altogether, which is the dominant view in modern American law.

This is why, as a practical political matter, I think Objectivists ought to collaborate—and I stress collaborate, on the basis of common ground; not on the basis of compromised principles—with those of different philosophies who nevertheless share our belief in natural rights. There are many religious conservatives and Christian libertarians who would join Objectivists in the battle to return to the Founders' Constitution. After that, we can then argue about how much further we’d like to go in reducing the role of government.

This interview was conducted for Navigator by IOS editorial director Roger Donway.

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