In today’s Journal , Peter Berkowitz comments on the recent Supreme Court decision on selling violent video games to children. He doesn’t say explicitly what side he’s on (if any) but he does come off as much more in sympathy with the dissenters; at any rate he stressees the need to protect the role of the family as the institution primarily responsible for the nurturing of good human beings and good citizens.

Not to beat a dead horse , but let me point out that Berkowitz correctly identifies Locke as the major philosophical source of the formative role of families as incubators of human and civic virtue in the American constitutional order:

John Locke, the 17-century British philosopher whose views on political liberty helped shape the U.S. Constitution, attached much less importance to art. And unlike Plato and Aristotle, he maintained that cultivating citizens’ minds and character went beyond government’s legitimate function.

But Lockean liberty, no less than Plato’s republic and Aristotle’s well-blended polity, depends on moral education. As Justice Thomas points out in his dissent, Locke wrote in his highly influential “Some Thoughts Concerning Education” that the family was the unit essentially responsible for children’s education. For Locke and for the American founders, the proper exercise of parental authority meant inculcating in young citizens the virtues that allow for the responsible exercise of liberty.

In fact, Berkowitz goes too far when he writes that for Locke “cultivating citizens’ minds and character went beyond government’s legitimate function.” That’s not true; there were plenty of things - intellectual and moral alike - Locke thought were so essential to the integrity of the civic community that he strongly supported using political action, including criminal law, to support them.

On the “minds” side, his Letter Concerning Toleration contains a laundry list of opinions that can legitimately be suppressed by law because they  ipso facto  make the person who holds them hostile to the civil community. Examples include support for tyranny, opposition to religious toleration, expressions of loyalty to a hostile foreign power, and atheism. Now, I think there is a strong case to be made that Locke’s main argument for religious toleration commits him to positions that are inconsistent with using criminal law against opinions even when those opinions are hostile to the civil community; but whether or not it was inconsistent of him to do so, he did think government could “cultivate citizens’ minds” in this way.

On the “character” side, Locke supported criminal sanctions on all sorts of issues that today we would classify as “moral issues.” This was, of course, integrated with his support for the family as the primary institution of character building. But the family needed strong support from the law where appropriate, and Locke was not hesitant to provide it. Not only was he in favor of criminalizing all the usual sexual crimes (adultery, etc.) but he also held that the natural law absolutely requires all governments, regardless of the particular circumstances of their societies, to forbid divorce in cases where minor children are still present in the home.

Why is this important? Because you cannot just make up a new political community from scratch. If we want to humanize the civil order again, we have to humanize the civil order we have, not some imaginary new one. And the American civil order is a Lockean order. To the extent that we can dig up its actual historical foundations, rather than trying to import new ones, the more we can do that, the better.

Obviously adjustments will need to be made. In spite of his foundational commitment to religious freedom, Locke is Protestant and his philosophical apparatus does make Protestant assumptions in some cases that will need fixing to accomodate real pluralism. Also, while Locke is not as metaphysically flat as many believe, he is not as metaphysically robust as we need; his command approach to ethics is insufficient by itself. (I would add that a virtue approach to ethics is equally insufficient by itself; both are needed.)

But while the American constitutional order must adjust its philosophical foundations to meet these realities, first there must be something present to be adjusted. If we don’t first understand what it is we are adjusting, we’ll never make progress. The real Locke has to be dug up and understood before the process of adjustment can truly proceed.

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