Bruce P. Frohnen
For decades, now, many among that ever-shrinking group of centrist and conservative academics have engaged in sometimes acrimonious debates over the sources and nature of our constitutional order. The debate centers on the question whether the United States is primarily liberal or conservative, founded in essence through promulgation of the Declaration of Independence and Constitution, or through a historical process stretching back centuries and punctuated by critical documents like the Mayflower Compact, Declaration, and Constitution, and by development of institutions and practices such as the common law. More simply, it often devolves into the question: “Locke or Burke?” The debate is misguided for several reasons: it creates needless division (and the occasional purge in foundations and academic departments) at a time when many conservatives have concluded America’s very existence is under attack; the leftward lunge of “never Trumpers” has made a key point of contention, the supposed duty to make over the world in our own image, obsolete; and it overlooks the fact that both Locke and Burke expounded and helped embed in America the essential elements of natural rights, ordered liberty, and the rule of law central to our constitutional order.
Unfortunately, while Locke’s influence is all-but-universally recognized, with arguments focused on the extent of his originality and the centrality of his thought for the founding generation,[1] there is a determination in some quarters to deny all but completely the relevance of Burkean understandings within our tradition. The result is an impoverished vision of American constitutionalism with little grounding in the character of our people, rendering it too weak to withstand the onslaught of resentment and totalitarian ideology fostered for decades in our educational institutions and lately set loose on our streets.
Much of the hostility toward Burke—a defender of ordered liberty in America, India, Ireland, and the Caribbean against British imperialism and the slave trade, and in France against totalitarian democracy—is rooted in a common but narrow academic reading of the final chapter of Leo Strauss’s Natural Right and History. But, as Steven Lenzner has pointed out,[2] Strauss himself noted, in that very chapter, Burke’s recognition of natural rights that must be respected by any legitimate law and regime. Contrary to the common portrait of Burke as an enemy of human rights and of any opposition to inherited authority, Burke expounded a natural law philosophy that undergirds rights in the same manner as our own Constitution—as protections of human dignity and self-government rooted in our God-given nature.
Interpretations of Burke too often are shaped by isolated readings of his most famous work, Reflections on the Revolution in France. Here he excoriated the radical French revolutionary Jacobins (along with their English followers) who would soon launch a campaign of mass murder carried out in the name of The Rights of Man. Burke recognized the grounding of such hypocritical violence in the abstract theorizing of the Jacobins’ patron saint, Jean-Jacques Rousseau, whose fantasy of an idyllic state of nature placed the blame for all human miseries on the imperfections of social and political institutions impinging on absolute rights—rights that could be made real only by an overawing, total state.
Seeing such totalitarian logic for what it was, Burke rejected the grounding of natural rights in human will, noting that “Men have no right to what is not reasonable, and to what is not for their benefit.” Some today read this statement as a denial of natural rights. But Burke clearly defended what he termed the real right of man. Most famously, he stated that men have “a right to do justice, as between their fellows, whether their fellows are in public function or in ordinary occupation. They have a right to the fruits of their industry, and to the means of making their industry fruitful. They have a right to the acquisitions of their parents; to the nourishment and improvement of their offspring; to instruction in life, and to consolation in death.” Equal justice, the pursuit and enjoyment of property, family, and religious practice; Burke recognized all these as universal rights. More generally, he recognized the natural right to be left alone to pursue one’s own good: “Whatever each man can separately do, without trespassing upon others, he has a right to do for himself.”[3]
Burke’s attacks on the Jacobins stemmed, not from any contempt for natural rights,[4] but from a determination to defend these rights against the empty abstractions of those who would sing their praises while trodding them underfoot or, more precisely, define them in uselessly broad terms, then taking them away in the name of even broader rights secured by an omnicompetent state. Better, he argued, to recognize rights’ natural limits in reason, human nature, and the common good than to make unsustainable claims for their infinite expanse. And so, in setting forth (well before the end of the eighteenth century) a sketch of a code aimed at restricting and eventually ending slavery, he proposed regulations on slavers’ conduct and defenses for slaves’ rights to due process, family unity, property, schooling, and freedom of religion. Such regulations should convince slaveowners that they were better off with free workers than with slaves whose natural rights would and ought to be protected, whatever their legal status.[5]
African slaves were not the only people whose rights Burke sought to defend. Early in his career he took up the cause of Catholics in Ireland, whom British law sought to dispossess of their property, deny education and due process, and prevent from practicing most professions in the name of (coerced) conversion to the official, Anglican religion. A constitution made up of such partial laws, favoring a small group against the bulk of the community, denying men’s common nature and the demands of natural justice “is rather of the nature of a grievance than of a law.” Yet, not even majority rule could justify violating natural rights, for law is not rooted in mere will. “All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice.”[6]
And what of America? Burke represented the colony of New York as an agent in Parliament, where he helped craft the conciliatory policies that staved off revolution during the 1760s. He spoke vigorously against British actions leading to the revolution and later would say that
He believed that [Americans] had taken up arms from one motive only; that is our attempting to tax them without their consent; to tax them for the purposes of maintaining civil and military establishments. If this attempt of ours could have been practically established, he thought with them, that their assemblies would become totally useless; … the Americans could have no sort of security for their laws or liberties, … the very circumstance of our freedom would have augmented the weight of their slavery.[7]
After the revolution Burke offered the American Constitution itself as a model suitable for adaptation in neighboring Canada, though each nation should meet the general requirements of rule of law and balanced government in a manner appropriate to its specific character and circumstances.[8]
It is on this last point that opposition to Burke often focuses. Some believe that to say that a people’s government and the specific contours of rights within that political community should fit its character and circumstances is to deny universal human rights. But to deny the role of tradition and historical character in the development of law denies the fact of our historical and contextual character—denies, therefore, our nature. Do defenders of liberty any longer truly believe that natural rights must be defended in exactly the same way across the globe? Or have we finally learned from the bloody failures of “nation building”? A people’s government must fit its own circumstances and character, such as, for example, their lack of any common allegiance to a nation called “The Islamic Republic of Afghanistan.” And this may mean a government that lacks elements crucial for a constitutional republic like that of the United States—or, indeed, any single nation in a geographic area.
Burke captured this problem by noting that “The nature of man is intricate; the objects of society are of the greatest possible complexity; and therefore no simple disposition or direction of power can be suitable either to man’s nature, or to the quality of his affairs.”[9] By this he did not mean that natural rights do not exist but, rather, that they must be pursued and defended within a variety of political forms and that the specific contours of the rights themselves must be formed by human experience. Due process, for example, means the process that is due, given the historically grounded, reasonable expectations of the citizenry. Its origins lie in the law of nature—respect for our intrinsic dignity and our right to live by established rules so that we may plan our lives rather than cower in fear before unpredictable political power. But, to take one example, the process deemed due a criminal defendant in Italy or France—continental nations in which the judge actively participates in examining the facts of a case in a manner an American would find liable to bias and prejudice—is no violation of right demanding revolution. Moreover, all rights must be defined and limited by their proper ends. Thus, the drafters of our First Amendment fully understood that their support for free speech nowhere included the right to defame another, or to engage in obscene acts for whatever purpose. All rights have limitations, to be determined by reason and the public good.
This means that, in practice, rights, like law, are more often found than created. Being part of the nature of the universe, grounded in our natural sociability, natural rights are limited, as are government and the proper power of any lawmaker. We can find what works best according to the genius of our people, to make real our common good—or we can seek to create out of whole cloth a new way, blind to the fact that such new ways often lead to the guillotine.
The greatest problem for the Burkean defense of natural rights is that it demands what is rare among lawyers and politicians: humility. Peoples need leaders, of course, but they need few lawgivers in the classical sense of great figures who create order out of chaos, “fundamentally transform” society according to some abstract notion of justice, or found a new nation ex nihilo. Neither the statesman who would create the world anew, nor the judge who would redefine the Constitution to vindicate his own notion of natural justice has any place in a Burkean constitutional order. Worse, on the Burkean view, such would-be great men by their nature undermine constitutional order by arrogating to themselves the role of custom and circumstance in shaping the norms of a people, rather than working to retain (or re-establish) laws befitting those norms. In brief, Americans needed George Washington’s steady leadership. We may not survive the transformations of Barack Obama—certainly not if they are completed by his Jacobin followers in the press or academia, on the streets and, alas, in the halls of our government.
Disagreements over the nature of our constitutional order and the sources of that order are natural and good. But we should remember two things: first, a vigorous defense of rights grounded in the long, wide tradition of natural law may leave room for particular structures and practices that fail to live up to our desires, but remains aimed at promotion of human liberty; and, second, that insistence on the universal, immutable nature of those rights, while it may provide rhetorical clarity, remains susceptible to the manipulations of demagogues and mobs. Both weaknesses deserve cautious attention. Both strengths should evoke some modicum of respect.
Bruce P. Frohnen is a Senior Fellow at the Russell Kirk Center for Cultural Renewal and Professor of Law at Ohio Northern University College of Law.
Notes
[1] And, for that rather small group of integralists, the salutary nature of Locke’s thought, and of our constitutional order itself.
[2] “Strauss’s Three Burkes: The Problem of Edmund Burke in Natural Right and History,” Political Theory 19 (1991): 364–90.
[4] Though he sometimes castigated the language, because of its tendency to promote abstract theorizing.
[5] Burke, “A Letter to the Right Honourable Henry Dundas,” 5 Works, 521.
[6] Burke, Tract on the Property Laws, 6 Works, 28, 22.
[7] Burke, Appeal from the New to the Old Whigs, 3 Works, 30–31.
[8] Bill for Organizing the Government of Quebec (May 6–8, 1791) quoted in “American Restoration: Edmund Burke and the American Constitution”
[9] Reflections, 334.
NEH Support
The University Bookman has been made possible in part by the National Endowment for the Humanities. Any views, findings, conclusions, or recommendations expressed in this article do not necessarily represent those of the National Endowment for the Humanities.
