I’ll never forget the thrill of first reading John Locke’s Second Treatise of Government, first published in 1689. (Its actual title is An Essay Concerning the True Original, Extent, and End of Civil Government; the essay is routinely published with an essay attacking Robert Filmer, a proponent of the theory of the divine right of kings, a theory of absolute, divinely ordained, hereditary monarchy.)
What thrilled me most was the notion of a state of nature, a pre-social, pre-governmental state in which individuals were unrestrained by government. Locke, like Thomas Hobbes and Jean Jacques Rousseau, made great use of the state nature. It was a condition in which individuals contracted out of a condition of natural liberty, created civil society and then bound themselves to obedience to a sovereign.
It wasn’t the obedience to government that appealed to me. No. The glory of it all was the sense of natural liberty, the assertion that government – any government – had limited powers, that the people who created government had certain rights that pre-dated government. It carried the promise of rebellion, sedition, revolution if government departed from its proper role and purpose.
It was easy for me, steeped in the Bible as text as I was as an adolescent, to see something like Adam and Eve leaving the garden, after sin entered the world, to depart to the state of nature. Their descendants created government in order to survive. (Indeed, Locke’s First Treatise, on Filmer, was a thrill in its own right; here was a writer who took seriously the Garden of Eden. Suffice it to say I hungered to know God.)
The state of nature remained for many years a hobby horse of mine. What was government, civil society, but an artifice to bridge the gap between individuals, a means of making life tolerable, even possible? Government is a necessary evil, the theory goes. Individuals alone are real; the rest is poetry, tropes and sleights of hand.
Even as a lawyer, I rode the hobby horse for years. What is the Ninth Amendment to the federal Constitution but a reminder that there was something primary, more fundamental, than the bells and whistles of sovereignty, whether it be the sovereignty of the state or federal government? “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
I nearly flunked Constitutional law in law school, so determined was I to write about John Locke, the state of nature, and natural rights precedent to government that I ignored the stock question on the final examination designed to test my knowledge of standards of review for constitutional claims. I wrote about Locke, Hobbes, Rousseau, and the retained rights of the people. I pray God that exam no longer exists; I suspect it might be an embarrassment to read now.
I say all this now because in my old age I am suffering a crisis of confidence. Were those old certainties all that true? Did they bear the weight of a lifetime of strife? Sure, I’ve made my living as a controversialist and lawyer inflamed with a passion for the liberty of the unpopular. I retain my belief that the most frightening mob is the self-righteous mob.
Folks think I’ve changed my politics in recent years; they’re wrong. It’s the mob I fear that changed. Decades ago, I thought a young man of color couldn’t get a fair trial, so I staked my claims there. I’m more afraid of the woke today. I’m a contrarian; I delight in it. Augustine persuaded me of the reality of sin in the world, and collective pride is one of the deadliest of sins.
But did the state of nature ever really exist? And, if not, what is the source of those rights we retain as against the government? Are there any, really? And how secure are they?
Consider the infant. It never existed in a state of nature. It would have died shortly after birth if left to its own devices. We are social creatures, born into webs and bonds of affection and obligation. What came first, chicken or the egg, the individual or the society? Common sense tells me that in the world I inhabit, the world of the here and now, the chicken and society came first. It takes a village to raise a child, a society to keep the lights on and to deliver the groceries.
The pandemic has been a grueling horror show. A virus erupts and threatens the health of millions. The best response is collective. Public health professional create the best data and the best estimates about how to maximize the likelihood of survival for the greatest number of folks. China never lets liberty be the enemy of collective security. I watch our republic transform itself from one revolving around conceptions of liberty to one focusing on collective security. It scares me.
There may be no state of nature. It all may be a grand hoax. But what, really, is the alternative? I remain convinced that government based on consent is the best government, knowing full well that I never founded the republic in which I live. For a lifetime, I’ve made pragmatic adjustments to the world around me. The Constitution is an artifice, to be sure, but am I any longer free, in fact, to withhold consent? And at what cost?
I have questions, but no answers.
It’s time, I suspect, to re-read Locke for the umpteenth time. There’s a reckoning coming all right, a reckoning with theories about the origins, nature and ends of civil society and government. I suspect I’m not alone these days in re-thinking fundamentals.