James Madison: Philosopher and Practitioner of Liberal Democracy -  A Symposium

Calhoun versus Madison: The Transformation of the Thought of the Founding a Bicentennial Celebration

Harry V. Jaffa, Claremont, California

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In 1987, the Center for Judicial Studies, a Conservative thinktank in the precincts of the nation's capital--a thinktank, sometimes referred to as by appointment to the Justice Department of Attorney General Edwin Meese III--offered for sale (at $150.00 each) busts of six men denominated as "Defenders of the Constitution." They were: James Madison, John Marshall, Joseph Storey, Daniel Webster, John C. Calhoun, and Edmund Burke. Burke's inclusion may seem strange since he was not an American, and died in 1791, having said little or nothing about the Constitution, which was only of very recent date by the time of his death. Burke of course is justly revered for is patronage of the American cause during the dispute over "taxation without representation" with Great Britain, and his speeches on "Conciliation with America" were once known (I first studied them in the eighth grade) by every American schoolboy. But we can also understand Burke's inclusion when we remember that he is the regarded as spiritual Father of that contemporary Conservatism thought to be among the intellectual progenitors of the Reagan presidency. Russell Kirk's The Conservative Mind, published in the early fifties, is often said to be the founding document of present day Conservatism. If so, then it can be said that the mind of Edmund Burke--as understood by Russell Kirk--is, for all practical purposes, the Conservative Mind.

In this version of -that mind, the elevation of the wisdom of Edmund Burke--and of John C. Calhoun--represents an equal and opposite reaction to the depreciation of the Declaration of Independence (and of such a spokesman for its principles as Abraham Lincoln.) Russell Kirk, for example, dismisses the Declaration as follows:

... for the Declaration really is not conspicuously American in its ideas or phrases, and not even characteristically Jeffersonian... the Declaration was meant to persuade the Court of France and the philosophes of Paris that the Americans were sufficiently un-'English to deserve military assistance. Jefferson's Declaration is a successful instrument of diplomacy; it is not a work of political philosophy or an instrument of government, and Jefferson himself said little about it after 1776.

In another place, Kirk has written that the Declaration,

calculated to please Paris and Versailles, had broken with the constitutional argument of the Americans that had been advanced ever since the passage of the Stamp Act ... and had carried the American cause into the misty debatable land of an abstract liberty, equality, fraternity.

I have elsewhere subjected this expression of opinion to the ridicule it deserves (it can hardly be said to deserve analysis). Let us here merely note that in 1825 Madison and Jefferson together recommended to the Board of Visitors of the University of Virginia that the law faculty be required to teach that, of the best guides to the principles of the governments, both of Virginia and the United States, the first was the Declaration of Independence, "as the fundamental act of union of these states." Suffice it for the moment that Kirk has dismissed from serious consideration not only the Declaration of Independence but also the Gettysburg Address. And he has dismissed at one and the same time the legal and the philosophical ground both of Union and of political freedom, the ground upon which the Founding Fathers and we their heirs have condemned, and must always condemn, slavery, and every other form of invidious discrimination.

One must wonder however what it was that the Center for Judicial Studies had in mind in calling John C. Calhoun--together with Madison, Marshall, Storey, and Webster--a "Defender of the Constitution." One assumes, of course, that their marketing specialist told them that there were enough Old Rebels around who would shell out $150.00 for the bust of Calhoun. But were they aware of that desperate struggle between 1828 and 1833, that has been well described as the "Prelude to Civil War" (the title of a brilliant study by William Freehling), the Nullification controversy? Were they aware that Madison, Marshall, Storey, and Webster (not to mention Andrew Jackson) were the deadly opposition to Calhoun in that struggle? Each side, in that contest, defined the other as the enemy of the Constitution? Are we then to celebrate the bicentennial of the Constitution by praising equally the defenders of the Constitution and its enemies, or by failing to distinguish the two? James Madison, in his "Advice to My Country," which he withheld until after his death, left this warning, which, he said,

may be considered as issuing from the tomb, where truth alone can be respected, and the happiness of man alone consulted ... The advice nearest my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the serpent creeping with his deadly wiles into Paradise.

No one familiar with the writings of Madison's last years can doubt that the deadly wiles of the serpent creeping into Paradise were comprised in the South Carolina doctrine of State Rights, with its corollaries, the right of nullification, and the right of secession. This is not less the case--indeed it is rather more so- -because South Carolina claimed (wrongly but with some plausibility) the patronage of Madison's own Virginia Resolutions of 1798. Against the allegation of this patronage Madison protested as vehemently as any Pope, Bishop, or Church Father had ever protested against an imputation of heresy. Nor can there be much doubt that the serpent himself was John C. Calhoun. Certainly in the formulation of the Carolina doctrine Calhoun had a number of co-workers--Senator Hayne and Governor Giles among them--but the re-working and final perfection of that doctrine is to be found above all in Calhoun's Disquisition on Government and Discourse on the Constitution and Government of the United States. Published in 1851, they fortified the conviction of the leaders of the Southern cause for the struggle to come, in the last decade before the Civil War. They have remained the principal source of intellectual justification, as well as emotional conviction, for those who have remained faithful to that cause, in all the time since Appomatox. During the Civil War, they convinced so notable a Liberal as Lord Acton that the cause of the Confederacy was the cause of the defense of minority rights against the tyranny of the majority. Even today, there are many who believe that Calhoun's is the classic formulation of the problem of minority rights in a constitutional republic or democracy, and that his solution to this problem--as he himself believed--represents progress beyond that of the Federalist papers.

It may seem strange that the most famous advocate in American history of the doctrine that chattel slavery was a "positive good" should have been identified--whether by Lord Acton or by the Center for Judicial Studies--as the architect of a sophisticated theory of the defense of minority rights. But this paradox become more intelligible when one reflects upon how--since the passage of the great Civil Rights Acts of 1964 and 1965--the civil rights movement has been transformed from a movement to protect the constitutional rights of individuals into a movement to promote the political interests of groups. When Martin Luther King, Jr., made his famous speech on the steps of the Lincoln Memorial, he dreamed of a day when race, color, creed, and ethnicity would be transcended. He dreamed of a day when human beings--that is to say, individual men and women-- would be judged by their character and accomplishments, not by the color of their skin--or by any other irrelevant characteristic. He dreamed of a day when the principles of the Declaration of Independence would be fully realized, not only in the institutions of American government, but in the spirit of American society. But today, Jesse Jackson--who would like us to think of him as the successor of Martin Luther King, Jr.--proclaims the politics of the "rainbow coalition." He not only resurrects but enlarges the politics of color, by inviting all the different. "colors" (i.e. groups defined by race, religion, ethnicity, sex, or sexual preference) to club together. He calls upon them to develop a mindset that will think of the political process as a vehicle in which there is no distinction between right s and interests, and in which every demand becomes a right. The perfection of their political techniques would obviate the need for compromise pointing toward majority status in and through the political process. In the last generation they have established a bastion in the Supreme Court where, in the person of the late Justice Brennan and his followers, they may petition for redress of grievances. And the Court may redress those grievances in and through the judicial process. In so doing judges may ignore any words in t he Constitution -- or in any law they may be called upon to interpret--to discover by interpretation whatever it is they may have decided that the Constitution or the law ought to mean. The constitutional--and political--right to "petition the government for redress of grievances," traditionally directed toward the Congress, now includes the Supreme Court, not as a co-equal branch of the government, but as a co-equal legislature. Calhoun's theory of nullification, as we shall see, was essentially a theory for control of the national legislative process by the States in the interest of the minority he favored. In t his, the Brennanites are essentially Calhounian fundamentalists. Jackson's rainbow coalition seeks positive results through the Court, but also seeks both positive and negative results from the Congress. This coalition intends to possess an effective veto upon political action that will so clog the political process that the action of government in all its spheres will depend upon their concurrence. In all of this they are essentially disciples of John C. Calhoun.

But let us not b e too cranky about the politics of the Reverend Jackson. Everything said above about the politics of the rainbow applies almost equally to every other political coalition in both the Democratic and Republican parties in recent years. Result oriented jurisprudence is equally the province of the Left and of the Right. The respective role s of the Congress and the Court are understood solely in the light of where it is that you can get what you want. The anti-judicial activists of 1937 are the pro-judicial activists of 1987. Republicans will indulge their own favored constituents while denouncing the fiscal irresponsibility of the Democrats. Interest group liberalism is opposed by interest group conservatism. To paraphrase President Nixon, we are all Calhounians now.

The idea of interest group politics is, of course, not original with Calhoun. It is prominent in the Federalist as--in a somewhat different way--it was prominent in the argument of Aristotle's Politics. The difference between Calhoun and Madison lies not in what Calhoun added, but what he subtracted. What he subtracted was the natural rights and natural law principles of the Founding, which supplied the ends, with respect to which a politics of interest groups (or factions) was a means. The doctrine of legislative supremacy, so fundamental to the American Revolution, is a direct inference from the doctrine of natural equality. Natural equality leads to the social contract which leads to majority rule. But majority rule is the means to implement the equal rights of all: all who have consented to be fellow citizens, and therefore have consented to majority rule. The problem, at this point, is to prevent the rule of the majority in the interest of all from degenerating into the rule of the majority in the interest of the majority´┐Żthe tyranny of the majority. Hence the separation of powers, and the other devices of constitutionalism.

Today, conservatives like Mr. Justice Rehnquist, or Mr. Justice Scalia, or Judge Robert Bork, believe in legislative supremacy, and in the deference of the judicial branch to the legislative branch, in determining the policy of government. (This of course is the exact opposite of what their judicial conservative predecessors thought in 1937.) But they reject the natural rights doctrine of the Framers, from which the doctrine of legislative supremacy is derived. Their preference for locating lawmaking in the Congress, and keeping the Court out of policymaking, is merely their "value judgment." But a "value judgment" is by definition a subjective preference which carries no weight with anyone who has a different "value judgment." Liberals and Conservatives on the bench are at once divided and united by their common allegiance to the value free social science which is the ground of their jurisprudence. Judge Bork, for example, finds American constitutionalism rooted, not in the natural r rights doctrine subscribed to by Madison and the other Framers, but in "history." Apart from the fact that his history is bad history, the fact remains that history qua history is the realm of the "is" and not of the "ought." It tells us what happened, but not what is, or was, right. It tells us that people have changed their principles in the past, but it does not provide us with any guidance as to which changes were changes for the better, and which changes were, changes for the worse. It contains no guidelines whatever for jurisprudence. Judge Leon Higginbotham, an Appeals Court justice, like Bork (as he was)--but a man of the Left rather than of the Right--has written that had the Declaration of Independence said what it really meant, it would have read, "All white men of property are created equal." This is exactly how the late Professor M. E. Bradford read the Declaration of Independence. Bradford (following Jefferson Davis) interprets the word "equal" to refer only to the American people as a whole--or, more precisely, to the American people as the several peoples of the several States--in their equality with the British. In his view, it has no reference to the rights of individuals by nature. It ha s no reference to t he rights of individual human beings within or among the people declaring independence. Professor Bradford is in complete and perfect agreement with Judge Higginbotham as to the meaning of the Declaration of Independence. Each in his own way is a disciple of Calhoun. But it should be noted that, in the most important respect, Calhoun and Marx are also in agreement. The right of a state in no less a collective right than is the right of the proletariat. Both Calhoun and Marx deny any ground of right by nature in individuals which would limit the authority or control the purposes of government. To repeat, sovereignty is as much a doctrine of collective right in Calhoun as it is in Marx.

Let us return to the theme of Calhoun and Burke. The illuminati of American Conservatism believe that Burke believed in prescriptive right--that the British Constitution celebrated by Burke was the product of "history" but not of "abstract reason." That the American Revolution was fought to defend "our concrete rights as Englishmen"--and not our equal natural rights as human beings--has been asserted recently by our celebrated former United Nations Ambassador, Jeane Kirkpatrick. Indeed, whatever their differences on other matters, this opinion unites "paleo" with "neo" conservatives. For this reason I have characterized their clash at a Philadelphia Society meeting as having all authenticity of a professional wrestling match. No one agreeing with Jefferson, Madison, Washington, or Lincoln, on the meaning or authority of the principles of the Declaration of Independence, was permitted into the discussion.

What follows is a canonical Calhounian source for the rejection of the Declaration of Independence, and for the hypothesis of an agreement between the views of Calhoun and Burke on the American Founding. It is from a speech in the Senate, on the Oregon bill, June 27,1948. Addressing the truth said to be self-evident "that all men are created equal," Calhoun remarks:

All men are not created. According to the Bible, only two, a man and a woman, ever were, and of these one was pronounced subordinate to the other. All others have come into the world by being born, and in no sense ... either free or equal ... [This proposition] was inserted in our Declaration of Independence without any necessity. It made no part of our justification in separating from the parent country ... breach of our chartered privileges, and lawless encroachment on our acknowledged and well established rights by the parent country, were the real causes, and of themselves sufficient without resorting to any other, to justify the step. Nor had [these words] any weight in constructing the governments which were substituted in the place of the colonial. They were formed of the old materials and on practical and well-established principles, borrowed for the most part from our own experience and that of the country from which we sprang.

The pseudo-Burkeans who think we were only defending "our concrete rights as Englishmen" in 1775 love the reference above to "chartered rights" and "well-established principles." These rights are seen by Calhoun, as by his latter day followers, in contradistinction to those rights with which, according to the Declaration, all men have been equally "endowed by their Creator." It would appear, from the foregoing, that Calhoun followed Burke, in founding political right above all on prescription. But prescription, by itself, can never serve as a foundation for political right. Prescriptive right--tradition--can be authoritative only insofar as prescription is seen as embodying some form of transcendent right. An orthodox Jew respects tradition because he believes that his ancestors stood at the foot of Sinai, as Moses brought down the tablets of the Law. His tradition is the continued "handing down" of what was originally handed down by God. Lincoln often referred to the Declaration of Independence as embodying "our ancient faith." Why he called what might seem like a very recent faith ancient is shown by the following:

"Repeal the Missouri Compromise, repeal all compromises, repeal the Declaration of Independence, you still cannot repeal human nature. It still will be the abundance of man's heart that slavery extension is wrong..."

Slavery is against nature, and nature (like God) is older than any tradition of merely human origin. Hence faith in moral judgment founded upon nature is an ancient faith. Any tradition--any prescription--that is authoritative is so because of God and nature. It was so for Lincoln and it was so for Burke. But it was not so not for Calhoun.

Burke's enterprise, as characterized by Leo Strauss, was an attempted return "to the premodern conception of natural right..." According to Strauss,

Burke sided with Cicero and with Suarez against Hobbes and against Rousseau... [Burke's] political activity was indeed guided by devotion to the British constitution, but he conceived of the British constitution in a spirit akin to that in which Cicero had conceived of the Roman polity. [Natural Right and History, p. 295.]

That is to say, as Cicero had seen the excellences of the Roman constitution in the light of the classical natural right teaching, so had Burke seen the excellences of the British constitution in the same light. Of course, the two constitutions were very different, but each saw the respective excellences of his own regime in the light not of natural right simply, but of natural right guided by the light of prudence. That is to say, of natural right seen in relationship to the great difference in circumstance--the great difference in the time and the place--in which the regimes of the Roman republic and of the British constitutional monarchy were formed.

Indeed, the very inheritance of Britain from Rome--an inheritance comprised of the dual legacy of pagan republicanism and Caesarism, on the one hand, and of Christianity, on the other--prescribed the problem Britain was called upon to solve, and the boundaries within which it might seek the solution of that problem. The ambiguities of this inheritance are given unparalleled expression in Shakespeare's Julius Caesar.

Brutus: ... Stoop, Romans, stoop, And let us bathe our hands in Caesar's blood... Then walk we forth, even to the market place, And, waving our red weapons o'er our heads, Let's all c ry, "Peace, freedom, and liberty!"

Cassius: Stoop then and wash. How many ages hence Shall this our lofty scene be acted over in states unborn and accents yet unknown! (Act III, Scene 1, lines 105- 113.)

This play was acted before the daughter of Henry VIII, who would have regarded any overt republicanism as treasonable. Henry had in fact caused Marsilius of Padua's Defensor Pacis to be translated into English, for the benefit of its anti-papal sentiments, and for its arguments in favor of the supremacy of the secular over the sacred arm of government. But all of Marsilius' expressions in favor of classical republicanism were carefully censored out of the translation. Henry had attempted to resolve the ages-old conflict between Pope and Emperor-- between Caesar and Christ--by assuming the headship of the Church in England. Henry's break with Rome was the most necessary of necessary conditions for the emergence of that constitutional freedom that Burke found in eighteenth century England. When Shakespeare's audience heard the lines just quoted, they knew that the conspiracy of Brutus and Cassius was doomed to fail, and that Christian Caesars would hold supreme power in the world for over a thousand years. What they did not know, was whether republicanism might not yet succeed in "states unborn." The more intelligent among them might well reflect that the republican cause of the conspirators represented a better regime to Shakespeare himself, than that of triumphant Caesarism. Rome had become monarchical because Rome had become degenerate. Among the "states unborn" was of course, the United States of America, which would explicitly reject monarchy (Christian or otherwise) and elevate republicanism --- even as it would build a Capitol and establish a Senate. Revolutionary Virginia would adopt as its motto (which it keep s to this day)--sic sempet tyrannis. The American Revolution may be said to have begun, when Patrick Henry declaimed on the floor of the House of Burgesses, " Caesar had his Brutus, Charles I had his Cromwell, and George III may profit by their example!"

The United States would solve the problem faced by Henry VIII, not by a national state-church, but by disestablishment, by accepting the true and rational principle that, in Jefferson's words, a man's civil rights have no dependence upon his religious opinions, any more than his opinions in physics or geometry. By this principle, the extension of civil rights to all denominations did not require tolerance: it depended only upon the recognition of the rights of man that are according to nature. The American solution was absolutely unprecedented, and unique when it was adopted. Indeed, it was only this separation of religious opinion from political rights that enabled the United States to adopt a republican or non-Caesarian solution to the political problem. This was because it was only by disestablishment that theological differences--differences which cannot yield to the processes of compromise--ceased to be political differences. One cannot put questions of eternal salvation to a vote--or, if one does, one cannot at the same time have a regime that combines majority rule and minority rights. As it turned out, neither can one have such a regime if one puts any fundamental question of right and wrong to a vote--as Lincoln would argue in his debates with Douglas. No people, said Lincoln, have a right to vote to introduce slavery where it does not exist. The right to vote itself is based upon the rejection of slavery. To put slavery to a vote is tantamount to putting the right to vote to a vote.

Burke's Whig constitution of England did, indeed, anticipate the United States in adopting a policy of toleration with respect to religious difference. But it did so without ever acknowledging the principle of religious freedom--the principle that the rights of conscience are private rights, to be protected by civil society, but not to be governed by civil society. The Toleration Act of 1701, as Lord Macaulay relates, not only did not affirm the principle of religious liberty, it positively disclaimed it. By proceeding indirectly, however, it was able "to remove a vast mass of evil without disturbing a vast mass of prejudice." The necessary concession to the "vast mass of prejudice" illustrates how we understand--and how we think Burke understood--the modus operandi, of his much celebrated virtue of political prudence.

The Toleration Act did not contradict the almost universal belief that the government had a right to make religious tests the condition of civil rights. In fact it insisted upon that right. What it did, however, was to invent different tests for the different sects. From this our latter-day Burkeans--who believe that there is "a better guide than reason"--think that great legislation (and this was indeed great legislation!) is always eminently inconsistent and non-rational. It is true that, had the sponsors of the Toleration Act attempted to ground it upon the reasoned arguments of Locke's Letters on Toleration, it would have failed, and "the vast mass of evil" would have persisted unabated. It is almost certain however that the sponsors of this legislation, while concealing the fact, were themselves persuaded by Locke's arguments. That "vast mass of prejudice" was not something that they welcomed, but it was something that they had to deal with as best they could--which was prudently. They knew that the advantages gained by the Toleration Act should be used (as they were used) to reduce bigotry and superstition. The argument for prudence was not an argument against reasoned conviction on the relationship between civil and religious liberty. It was in fact an argument in favor of bringing about those circumstances in which religious liberty could be established upon the ground of the true theory religious liberty.

Those circumstances did exist in Virginia in 1786--and eventually in the United States as a whole. For the Virginia Statute set forth boldly "that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry." This is the true and rational principle, one which provided equal rights, not only for Protestants (as did the Toleration Act) , but also for Catholics and Jews. Who can doubt that a public opinion enlightened enough to adopt the Virginia Statute of religious Liberty is a better foundation for good legislation than one which will only permit the indirect subversion of a bad principle? Who will doubt the higher prudence of working patiently for public enlightenment in the true principle, and implementing that principle when the "consent of the governed" may be gained for it? Burke's constitution, and Jefferson's (and Lincoln's) constitution, are then but two phases of the same constitution, working towards the same ends. And both religious prejudice and racial prejudice provided obstacles to the ends of political wisdom in the experience of the English and American constitutions.

Classical natural right is at its core a doctrine of the best regime. But what is meant by the best regime is not unambiguous. It means, first and foremost, what is by nature best everywhere and always. But what is by nature best everywhere and always may not be best here and now, because it may not be possible here and now. Classical natural right always kept in mind the necessity of the doctrine of the best regime, for political understanding and for right or just political action. It kept equally in mind the necessity of not permitting the best to become the enemy of the good. This is what is at the core of prudence, and why prudence sometimes defers to prejudice. Right action is always action aimed at the greater good, or the lesser evil, within the framework of the actual alternatives in given circumstances. The rhetoric of prudence and the logic of natural right may appear on the surface to be completely dissimilar. Yet the logic of natural right, properly understood, in fact dictates the rhetoric of prudence.

Burke, in his opposition to the Jacobinism of the France was compelled to present the French monarchy, and the ancien regime, in a different and far more favorable light than followed from his philosophical principles. Because Jacobinism was militantly atheistic he defended Christianity unqualifiedly. Defending Christianity, he overlooked the differences between French Catholicism and English Protestantism, although these differences had been central to the Glorious Revolution of 1689, that had produced that Parliamentary supremacy so central to Whig constitutionalism. Since the Jacobins were plundering the French Church, Burke made no allusion to the plundering of the monasteries by Henry VIII. Yet the property thus acquired by this King, and distributed by him to his followers--and especially to the Church of England--made possible the defense of the liberties of the Constitution Burke celebrated. These "accidents" of history had served the "essences" of Whig constitutionalism and Whig freedom. But the argument for the essences of Whig freedom was utterly distinct from and could not be derived from the accidents which happened to serve it. Hence the "mysteriousness" of the dispensations of prudence. Latter-day Burkeans, bemused by nineteenth century historicism--above all Hegel's--detected a superior wisdom in the accidents than in the essences. Hence their denial of reason, and of natural right. It is in this light that we must look upon the alleged junction, and the real disjunction, between Calhoun and Burke. For the real Burke leads us not to Calhoun, but to Madison. Once we understand the real reasons underlying the hypothetical unreason of prudence, we see that prudence depends at every step upon a theoretical understanding of the ends of politics. Prudence, and the rhetoric embodying prudence, never stands on its own.

Calhoun did not, like Burke, look back towards Cicero and classical political philosophy. The Disquisition on Government is in no sense founded upon "the funded wisdom of the ages." On the contrary, it represents the exact opposite. Tradition, whether as prescription, as classical natural right, or as Christian natural law, has no standing with Calhoun. His doctrine represents the claims of modern science. It assumes the superiority of the present to the past in every fundamental respect. Astronomy rests upon a knowledge of

the constitution or law of the material world, according to which the several bodies composing the solar system mutually act on each other, and by which they are kept in their respective spheres.

From this precise perspective of astronomy--or physics--Calhoun asks

What is that constitution or law of our nature without which government would not exist, and with which its existence is necessary?

In order to proceed with this question Calhoun lays it down as an axiom that

man is so constituted as to be a social being. His inclinations and wants, physical and moral, irresistibly impel him to associate with his kind.

In no age or country, Calhoun says, has man ever been found in any other state than the social, and in no other could he develop his moral and intellectual faculties, or

raise himself in the scale of being much above the level of brute creation.

Membership in society is in every sense involuntary. Calhoun then adds as a corollary that

this state [viz., the social] cannot exist without government.

Both these assumptions are said to rest upon "universa experience," and therefore to constitute a foundation for the science of government no less solid than the science of Galileo and Newton. From them Calhoun can go on, in apodictic fashion, to answer the question with which he began, which he now restates as follows.

What is that constitution [viz., Iaw] of our nature which, while it impels man to associate with his kind, renders it impossible for society to exist without government?

We have already seen Calhoun, in his speech on the Oregon bill, ridiculing the Declaration of Independence for saying that al l men are created equal. All men are not created. With the exception of Adam and Eve, all human beings come into the world as infants, in a state of entire dependency. Yet Calhoun himself speaks of "man" properly occupying a place "in the scale of beings much above the brute creation." He is then at one with Jefferson in believing that "creation" is represented by a "scale of being." And if "man" as such can occupy that elevated place on that scale, it must be also be the case in principle that "all men" can occupy it. Since the Declaration speaks both of "barbarous ages" and " merciless savages" it is clear that all men do not occupy in fact the place that all occupy in principle. But Calhoun will deny that the equality of man on the scale of creation has the significance assigned to it by Jefferson.

The natural equality proclaimed in the Declaration has as its corollary that legitimate civil society is a voluntary association. The Massachusetts Bill of Rights provides us with this gloss on the doctrine of the Revolution:

The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.

The reason that the body-politic results from the voluntary agreement of individuals is that

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining safety and happiness.

Human beings, according to the doctrine of the Revolution, are equally possessed of natural rights. Because of this equality, it is their voluntary agreement that makes them members of a body politic. This voluntary agreement is however an agreement in accordance with reason. Human beings can act voluntarily because they can see--that is, understand--the difference between a body politic within which personal liberty is secure, and property is safe, and a despotic one, in which these conditions are not met, and in which therefore safety and happiness are not possible. Free civil society is in accordance with human nature, despotism is not. Safety and happiness are rational, not random concepts, natural rights are not merely the conditions upon which men enter civil society. They are also the guidelines of constitutionalism--the ever present principles by which the distinction between free and despotic government is preserved. According to Calhoun, however, neither our membership in society, nor society's subjection to government, involves rationality or voluntary action in the slightest degree. In one of the most revealing passages of the Disquisition, he writes that government "is not a matter of choice ... Like breathing, it is not permitted to depend upon our volition . "Calhoun's denial of natural equality is pro tanto and ipso facto a denial of man's nature as a free and reasonable being. In this, of course, he anticipates the metaphysical determinism of contemporary behavioral science.

Let us return to the question of what it is that at once makes society necessary to man, and yet makes society impossible without government. And let us take note of the fact that although Calhoun insists that society and government are always present together, they yet remain distinct. One might suppose that, in declaring that man is a social being, impelled "irresistibly" into the social state, Calhoun is echoing Aristotle. Nothing could be further from the truth. According to Aristotle, man is by nature a political animal. The family and the tribe are pre-political, but they do not constitute an independent sphere of their own. Aristotle would never speak of society as the place where the "full development of [man's] moral and intellectual faculties" takes place. For Aristotle, it is participation in government--in ruling and being ruled--that enables the citizens, nurtured in the lesser forms of community, to fulfill the purposes of those communities in and through the political community. For Aristotle, "rule shows the man," and participation in ruling is participation in those nobler and more difficult activities in which virtue--above all justice--is manifested.

For Calhoun, government arises from a kind of gravitational necessity. That necessity is to be found in the mechanism of the passions of the human soul, and "mechanism" is the only word to describe Calhoun's conception of the soul. Man, he says, while created for the social state, and .... accordingly so formed as to feel what affects others, as well as what affects himself... is, at the same time, so constituted as to feel more intensely what affects him directly, than what affects him indirectly through others ...

Rephrasing this, Calhoun says that man is so constituted

that his direct or individual affections are stronger than his sympathetic or social feelings.

Calhoun then adds

I intentionally avoid the expression selfish feelings ... because it implies an unusual excess of the individual over the social feelings ... My object is to exclude such inference, and to restrict the inquiry exclusively to ... phenomena appertaining to our nature... which are as unquestionable as is that of gravitation or any other phenomenon of the physical world.

Here we have an echo of the passage in Spinoza's Ethics in which the passions are described on the analogy of meteorological phenomena, which it would b e absurd to praise or blame. They are to be understood as manifestations merely of the unalterable laws of cause and effect. Hence Calhoun refuses to use the word selfish to describe selfishness! From this perspective, we must note, he must refuse to call by their right names tyranny or despotism--which after all are the most invidious forms of selfishness. We see by this a profound reason for his rejection of the horizon of the Declaration of Independence, which is not only egalitarian, but moral. We see also Calhoun's (no less than Spinozal's) kinship with comtemporary value-free social science.

That constitution of our nature, which according to Calhoun gives a gravitational predominance to the self-regarding over the other-regarding passions,

necessarily leads to conflict between individuals. Each in consequence has a greater regard for his own safety or happiness than for the safety or happiness of others; and where these come in opposition, is ready to sacrifice the interests of others to his own. And hence the tendency to a universal state of conflict... accompanied by the connected passions of suspicion, jealousy, anger and revenge--followed by insolence fraud, and cruelty.

Here is a great crux or turning point in Calhoun's argument. The Disquisition began with the assertion that man is by nature a social animal. This set Calhoun in opposition to Hobbes' radical individualism, and the equality by nature which is the foundation of Hobbes' political thought, as it is of Lockel's. But now we discover that the social state is every bit as much a bellum omnium contra omnes as Hobbes's state of nature. But how in the world can this "universal state of conflict" be the state responsible for the "full development of [man's] moral and intellectual faculties"?

The answer has already been given, in the proposition that the social state ... cannot exist without government." The distinction between government and society would appear to be merely an analytical distinction. Yet for Calhoun it is all important. Since society cannot exist without government, there is no transition from society and government. There is no social contract or compact. All contract or compact implies an equality between the contracting parties. It implies the ability of the parties to make contracts, and the contract, to be valid must be entered into--on both sides--without there being duress or fraud exercised by one party upon the other. It also implies--as we have already seen--that the political community is in its origin and purpose both voluntary and rational. But for Calhoun the necessity of man being in the social state, and the social state being accompanied by government, no more rests upon volition--or reason--than (to repeat) does breathing!

Aristotle, we have noted, does not recognize the distinction between the social state and government. Calhoun appears to agree with Aristotle in asserting that man is by nature social. But Calhoun contradicts Aristotle in denying that government serves higher purposes than the less comprehensive forms of community-- e.g. than the family

... although society and government are thus intimately connected with and dependent on each other, of the two society is the greater. It is the first in the order of things and in the dignity of its object; that of society being primary, to preserve and perfect our race; and that of government secondary and subordinate, to preserve and perfect society.

According to Aristotle, the family is first in order of becoming, but the political community is the first in order of being. This distinction between being and becoming is however not recognizable from Calhoun's radically modern scientific perspective.

We must ask however how the perfection of the race can be intrinsic to s society, if the intrinsic tendency of society is to a universal state of conflict, characterized by suspicion, jealousy, anger and revenge? Where does the knowledge of perfection come from? In fact, it does not come from government any more than it does from society. For the tendency of government is as ineluctably tyrannical as that of society is anarchical.

But government, although intended to protect and preserve society has itself a strong tendency to disorder and abuse ... The powers which it is necessary for government to possess ... must be administered by men in whom like others the individual are stronger than the social feelings. And hence the powers vested in them ... will ... be by them converted into instruments to oppress the rest of the community.

Thus we see that by Calhoun's version of "the laws of nature and of nature's God," the state of man in society is anarchy, and the state of society under government is tyranny. To prevent anarchy ending in tyranny there is, however, another institution: its name is Constitution.

Having its origin in the same principle of our nature, constitution stands to government as government stands to society; and, as the end for which society is ordained would be defeated without government, so that for which government is ordained would, in great measure, be defeated without constitution.

Forming a government is not only easy, it requires as we have seen no conscious effort. But forming a constitution "is one of the most difficult tasks imposed on man." To form a perfect constitution, Calhoun says "has thus far exceeded human wisdom, and possibly ever will." Society and government, according to Calhoun, are of "divine ordination." But a constitution must be "the contrivance of man." one wonders why God--whose "infinite wisdom and goodness" Calhoun is at pains to praise elsewhere--left man in a state either of anarchy or tyranny. One wonders why Calhoun's God left to man a task taxing, if not surpassing, his powers--a task, moreover, whose excellent performance is the absolute condition for the blessings of God to be enjoyed.

But what then is a constitution? It is a government so formed as "to resist by its own interior structure ... the tendency to abuse of power." Such a government Calhoun calls an organism . The first principle of organism in a popular or elective government is found in the control over the elected representatives by those who elect them. But this only means that the government of these representatives will not oppress those to whom they are responsible. The bellum omnia contra omnes continues however in the struggle between majorities and minorities. At this point Calhoun has an advantage in his argument with Madison that is undeniable. Madison is not less emphatic than Calhoun in seeing the tyranny of the majority as the "the disease most incident to republican government.'' But Madison sees in the extended republic a republican remedy. The Union under the Constitution will be "more perfect" (according to Madison in the famous tenth Federalist) because by extending its "sphere"

you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.

Madison however makes an assumption that, Calhoun insists, is contrary to fact. He assumes that the "common motives" of the majority arise entirely out of the "passions, opinions, and interests" of society. But the formation o f a government results in the creation of a new and different interest, one wholly separate from that of society. Even if the action of the government were directed to the equal protection of the whole of society, its tendency would be to lay the burden of supporting the government upon the minority. Moreover, Madison's analysis overlooks the possibility of national political parties institutionalizing the "common motive" of controlling the action of government in the favor of a permanent majority coalition which, by this very fact, becomes a permanent, majority faction. In the fifty-first Federalist, Madison speaks of the "interest of the man" being "connected with the constitutional rights of [his] place." But the President who is head of his party may share interests with members of Congress of his party--interests which take the form of plundering the opposition--interests which may override his, or the Congress's, constitutional interest in separation of powers.

Calhoun sees only one avenue of escape from the grinding force of his melancholy psychological determinism, That is

by the adoption of some restriction or limitation which shall so effectually prevent any one interest or combination of interests from obtaining the exclusive control of the government, as to render hopeless all attempts directed to that end.

This in turn may be effected

by taking the sense of each interest or portion of the community which may be unequally and injuriously affected by the action of the government separately... and to require the consent of each interest, either to put or to keep the government in action.

This is the famous veto which by its presence transforms the government into one by a "concurrent" as distinct from merely numerical majority. The government of the concurrent majority, says Calhoun,

tends to unite the most opposite and conflicting interests, and to blend the whole into one common attachment to country... the same cause.. which makes it the interest of each portion to conciliate and promote the interest of the others would exert a powerful influence towards purifying and elevating the character of the government and the people, morally, as well as politically.

No knight singing the praises of his mistress--not Don Quixote celebrating the mystical virtues of Dulcinea del Toboso--ever waxed more rhapsodic than Calhoun on the excellences of the "organism" of the "concurrent majority." His assumption throughout however is that if the self-regarding Passions are prevented from governing human action by the power of the veto then the social or other-regarding passions will have full sway. But what ground is there for this assumption? Why will the action of the government not take the form of collective selfishness or aggression? More important still is the question, Why will any passions--even if other-regarding, elevate the character of a government and a people? Calhoun's "scientific" conception of the soul is one of the passions alone. It does not seem to have any noetic component at all. One wonders by what faculty it is that Calhoun himself recognizes the virtues or excellences that result from the operation of the concurrent majority.

James Madison, in his essay on "Sovereignty," says that "the majority may do anything that could be rightfully done by unanimous concurrence of [all] t he members" of civil society. Unanimity is a necessary, but not a sufficient condition for defining the limits of the powers of the majority. The people of Jonestown decided, apparently by unanimous consent, to commit suicide, murdering hundreds of their own children in the process. In the tenth Federalist, Madison speaks without hesitation of "the rules of justice and the rights of the minor party." In so doing he assumes the existence of a body of knowledge of such rules and such rights, which exists independently of the political process. But Calhoun's deterministic premises regarding the mechanism of the soul leaves us no place to discover what these rules and these rights may be, until the operation of a government of the concurrent majority has revealed them. But, as noted, it is difficult, if not impossible, to understand how that revelation is itself possible, given the limitations of the soul as Calhoun conceives it. From Calhoun's premises, there can be no such thing as education in or to virtue, because no virtuous action is--or can be--sufficiently known to be chosen for its own sake.

Calhoun certainly thinks of himself as a benefactor of mankind. But what is his motive? It is instructive here to consider what he says about the two constitutions--those of Rome and of Britain--which he (like most of the Founding Fathers) believed to be the best before the adoption of the American Constitution of 1787. Calhoun finds the secret of Rome's greatness in the institution of the Tribunes.

By this arrangement the government was placed under the concurrent and joint voice of the two orders, expressed through separate and appropriate organs...This simple change converted it from an absolute into a constitutional government..and from an aristocracy into a republic. In doing this it laid the solid foundation of Roman liberty and greatness.

The British Constitution emerged over a long period from the feudal monarchy that followed the Conquest, to the refined constitutional monarchy in which the three estates--King, Lords, and Commons--had mutually vetoing and hence concurrent power. Both these constitutions, however

originated in a pressure occasioned by conflicts of interests between hostile classes or orders, and were intended to meet the pressing exigencies of the occasion; neither party, it would seem, having any conception of the principles involved, or the consequences to follow, beyond the immediate objects in contemplation.

We recall that Hamilton, in the first Federalist, declares the question facing the country to be

whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

Hamilton would probably agree with Calhoun that even the Roman and British constitutions owed more to accident and force than to reflection and choice. But Calhoun hardly admits even the possibility that reflection and choice can be the cause of good government:

It is difficult to conceive that any people among whom (constitutional governments did not exist would or could voluntarily institute them ... while it is not at all wonderful that they should grow out of conflicts between different orders or classes when aided by a favorable combination of circumstances.

Darwin's great works had not been published when Calhoun wrote the foregoing. Yet one could hardly imagine a more succinct expression of social Darwinism. Constitutions are the result of mindless struggles in which chance adaptation to the constitutional forms results in the benefits which causes the form to be perpetuated. Certainly, from this perspective it is difficult, nay impossible, to imagine the Disquisition on Government leading to the re-founding of the republic. If the adoption of the scientifically correct constitution were possible, on the basis of the argument of the Disquisition, then the Disquisition itself must be wrong: because the Disquisition itself insists that man is so constitute d as to be incapable of acting on the basis of a rational apprehension of the good. The Disquisition is based upon the fundamental assumptions that the ends of virtue are not knowable by reason, and that even if they were knowable, they would not be chosen by human beings, and even if chosen, they would not be acted upon.

Calhoun's political theory anticipates in nearly every important respect the science of twentieth century behavioralism. It has the dualism characteristic of that science: it imputes to man the social scientist a metaphysical freedom to know and to act that it denies to the human subjects of his science. James Madison's constitution possesses many "inventions of prudence" by which men are induced to act correctly by self-interest rather than by virtue. But those inducements are guided at every point, as we have seen, by the Founders' understanding of "the rules of justice and th e rights of the minor party." The Founders' understanding is moreover, directed throughout towards neutralizing the interests of the factions, and securing the ascendancy of the "permanent and aggregate interests of the community." Representatives in the extended republic, according to Madison, are those "whose patriotism and love of justice will be least likely to sacrifice [the true interest of the country] to temporary or partial considerations." (Federalist number ten.) Calhoun cannot even identify "patriotism and love of justice" except as the unintended consequence of the veto power.

When in 1861 eleven southern States attempted to secede from the Union, they did so in obedience to a legal theory that was derived from Calhoun. For the right of secession was nothing more than the sanction for the concurrent majoritarianism they had learned from Calhoun. That they were exercising this "right" for the sake of a policy of extending chattel slavery--the ultimate denial of minority rights--did not strike them as a paradox, much less as a contradiction. This was because they had been instructed that "the right of a minor party" was never a matter of ratiocination. For such knowledge there was always a "better guide than reason. But the "better guide than reason" turned out--not surprisingly, given Calhoun's Darwinian presuppositions--to be war. Calhoun's 1850 prophecy of the coming war in one of his last great Senate speeches is equally remarkable for its clarity of vision and for its blindness. He knew that the south would attempt to withdraw from the Union, if the future of slavery were seriously in jeopardy. And he knew t hat the Union would fight to preserve itself. But he did not see that the Union had an interest in human freedom that was different from its interests in commerce, manufactures, or land. He did not see this because, although a patriot . himself, there was no room in his theory of the human soul for love of country, any more than for love of justice. But then according to his account of the soul in the Disquisition, neither was there room in that same theory for the political science of John C. Calhoun.

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