This was initially composed as a comment to what West says in the American Liberty: An Introduction thread belowits still pretty off-the-cuff and rough-draft, even if Peter would say that somewhere around the 700 word mark it probably needs a GONG intervention.
Tom, you and I are bringing a lot of factors into this particular disagreement, and it gets hard to sort them out. For reason of my own weakness on Locke compared to you, and for more substantial reasons, I dont want to Locke to be the primary ground of our dispute. My framework is undoubtedly influenced by the Lawlerian and Manentian manner of interpreting Locke and his impact, but I think one can accept it even if one holds a more positive interpretation of him like yours, IF one has reservations about the way classical liberals/late-19th-century justices developed the natural rights notion of liberty.
So my response begins on what will seem purely political and constitutional levels.
1.) Conservatives need to get enough moderates and Democrats committed to a basic kind of originalism. I honestly believe that given our Culture War divisions, and other divisions, the USA cannot avoid a crisis of dissolution in the future unless there comes to be a greater level of agreement about the constitutional rules, the regime essentials, than at present.
2.) Conservatives cannot push enough Democrats and wobbly moderates toward greater comfort with originalist-like its-the-only-Constitution-we’ve-got thinking, cannot get them to sacrifice the judicial avenue to what they see as policy goodies, or get them to really censure the kinds of unconstitutional short-cuts Obama is modeling, if they think that folks like you and I believe that Real originalism would ban hours-laws, collective bargaining, etc.
3.) The potentially-moderate-on-constitutional-issues Democrats are often convinced that “economic individualism” is a bad thing and a very American thing. You and I read books by Bernstein and such, and we realize that the usual historical summarization has been infected with bogeyman assumptions generated by progressives and Marxists. The “Robber Barons” were no robbers and their greed was exaggerated, natural right-grounded classic liberals rejected Social Darwinism, and men like Justice Peckham who discovered and defended the liberty of contract were good men attuned to what might plausibly be derived from a natural development of American jurisprudence. But can we ever convince the key moderates that “economic individualism” was more of a bogeyman than a reality of American history? I think not. That is the key thing for us, but Ill add that they are right to suspect that economic individualism was (and is) a real creed for not a few Americans, even though that actual creed went beyond what its purported official spokespersons put forth (I think usually sincerely) in the name of natural rights and constitutional liberty. That is, while Peckham was no Spencerian, contrary to Oliver Wendell Holmess unjustly celebrated dissent to Lochner, his decision was welcomed and abused by instinctual Spencerians.
4.) Now among the original progressives themselves, there was something of a division between those who wanted to say, “the Founders interpreted liberty as economic individualism,” and those who said, “no, that interpretation came about later.” That muted but telling division reflects uncertainty, and a salutary fear of taking the Founders head-on.
5.) I want conservative thinkers to exploit that division, that hesitation, for all its worth. One aim I have is to get enough Democrats sincerely on board with the vindication and celebration of the Founders, and it is going to be hard to do that if conservatives like you are there saying, well, if you’re going to love Publius, you have to love Peckham.
6.) So for me, the key issue is not the sorts of welfare policies the federal government can do. Rather, it is a set of Lochner-like expansions (in my judgment) of the Founders understanding of natural rights (which itself may be the correct understanding of Locke, or not, and which, to necessarily complicate things even more, itself was usually moderated in practice by most Founders holding elements of the communitarian-classical view) that is the real ground of my distinction between the natural rights conception of liberty and the economic autonomy conception. I hold that the constitutional arguments/innovations, mostly about the word liberty in the 14th, parallel a shift in theoretical arguments and rhetorical emphases about the best conception of liberty generally. Lochner bothers me more for this, and for what it implies about a further way of pushing the theory of liberty even further, the personal autonomy way, than for its prevention of particular economic policies. The track record of those policies, once allowed everywhere by FDRs court, has after all proved poor-to-mixed, and even in the exceptional success story cases, the record is at least questionable when posed against the best counterfactual scenarios of how the market would have taken care of the problem had we let it.
7.) If Americans come to believe, after being influenced by the likes of Epstein, Bernstein, Barnett, Mayer, etc., and it looks like you also, that liberty of contract is a natural right, then I say, let them pass a new amendment enforcing it(and note, Im for easier amendment in general). If those guys are largely right about the incentive factors that would then come into play (and especially if Americans were moderating their economic libertarianism with devotion to family, virtue, community, and God, as your work would urge them to), then by no means would that cause the social welfare policy disaster most liberals assume it would. But the attempt to read that right into the liberty defended by the 14th and 5th, an attempt that the American judicial mainstream kind of stumbled into, but which if returned to in our day would be have to be dogmatically declared, becoming a primary target and negative rally-point for social-justice liberalism, is one that originalists must reject. And one that anyone who hopes to moderate the future Democratic party on constitutional issues must reject also.
8.) Assuming I do get the book published, I suppose you might be one of the key critics of its distinction between economic autonomy liberty and the natural rights understanding of liberty in economic matters. I think your main point will be this: rightly understood Locke, which is just about the same thing as rightly understood Founders, will prevent the extremes of what Carl and the Progressives ascribe to the economic autonomy bogeyman. We should dare to let pure natural rights theory rule American economic life once again.
9.) But insofar as you do think there are differences between rightly understood Locke and the contemporary libertarian or classic liberal reading of natural rights applied to economic issues, perhaps you will wind up defending at least part of my theory.
10.) None of this really addresses the deeper Locke and the polis issue. But I get the sense you think we must spin a detailed natural law out of Locke that will forbid all manner of ps and qs at the constitutional level. I worry about the potential parallel of this with what the libertarian con-law guys read into the 14th and the broader tradition.
11.) This gets into philosophy-of-law issues, of course, but even some imaginable judicially restrained economic-autonomy-is-Lockes-teaching scholars (i.e., really none of the libertarian con-law scholars I know of) would be advocating a way of life , and a pattern of regular legislation, that centered ones practice of liberty upon, well, business-man , or to speak Republic book VIII, oligarchic-man , accomplishments. That way of life would measure ones virtue by ones bank-account and house-size more than by ones civic participation and leadership, not to mention the way it would tend to neglect the praise of (non-economic) activities devoted to family, friendship, philosophy, poetry, and God. The founders werent perfect, nor were their lives plausible models for every man, but they were better than that , as was the future American way of life they envisioned.
12.) But to return to polis issue and your comment, the key question is, how much of the determination of what is harmful, or of what is adverse to the morals needed by societys coherence, is left to democratic determination (or to speak strictly Lockean, to the determination of any sort of legitimate government initially chosen by the majority), and how much is left to a body of modern natural law? This is how the tensions Sara says exist in Locke play out practically.
13.) Finally, I admit that, even if I accept the Lawlerian idea that Locke partially corrects Aristotle, by stealing certain Christian insights about the limits of the polis(see chapter 7 of Modern and American Dignity especially), I still hold that Aristotle is better than Locke. So, no Im not a believer in natural rights in precisely the same way the most theoretical of the Founders believed in them. I believe in them more in a Christian natural law manner.
14.) But the greatest mistake paleocons and porchers make about America is that they dont understand that we cant reject abstract Locke for organic Burke (or for Berry-esque Burkeanism) the way someone like Oakeshott demands. Rather, for America, at least, you are obliged to have a Burkean reverence for the Lockean inheritance. Locke, kept in-the-box, is organic for us.
Well, Tom, thats a lot, and youll probably find some mistakes and confusions in there. I again echo Saras esteem for your many contributions over the years. And just so you know, I havent yet tackled your important Lockes Law of Nature essay in that great Natural Rights Individualism and Progressivism in American Political Philosophy essay volume that came out last year.