Blackstone’s Influence on American Political Philosophy

The question before us, ‘how did the writings of Blackstone influence American political philosophy, and what evidence for this influence is seen in Tocqueville's observations of American political life?’ is perhaps best quantified with qualifiers such as influence ‘upon whom’, ‘for how long’, ‘to what extent’. If we accept a genealogy of ideas from Blackstone’s conception of positive law reinforcing and being built upon convention – A Burkean view – we might argue that his influence was temporary and transient at best. If on the other hand, we assume, as many now do[1], that the jurisprudence of positive law – as presently conceived in legal positivism separate from morality - is one driver of political philosophy, then the argument could be plausibly made that Blackstone indirectly influences American political philosophy today, albeit not in a manner true to Blackstone’s conception of the law. This paper presupposes that Blackstone’s intended influence, as surmised from the breadth of his writing, was limited in reach and duration while the influence of ideas of others, tenuously derived from Blackstone’s principles[2], have been and are profound. Therefore, Blackstone’s influence on American political philosophy is foundational because both those that interpret him as he intended to be read and those that read in his works a transformative power within positive law to shape culture and society, absent convention, rely upon axioms established by Blackstone.

Blackstone begins, conducts, and ends his work with an acknowledgment of the foundation of the law, situated below the divine law, rooted in natural law and a creature of the accidents and circumstances of the people it is designed for. The ‘first and primary purpose’ of the law is to maintain and regulate absolute rights and in the case of those beneficiaries of British heritage, personal security, personal liberty, and private property.[3] Blackstone dismisses in his theory the notion of the original state of nature as having any contemporary relevance. He conceives of the circumstance of man where law forevermore requires a state necessary to enforce it and the impossibility of the destruction of law by law.[4] The foundational principles upon which law must be drawn in his view is custom or convention. He places a high value on deference to prior generations.[5] To Blackstone, the law is not reason, he is opposed to the “rage of modern improvement”[6] – the attempt to template reason onto law to achieve idealized ends. Blackstone saw the progression of the law as a slow process, over time, gradual and relying heavily upon and firstly on the decisions, customs, and conventions of the past. The view of jurisprudence held by Blackstone was best articulated by Burke as ‘a contract between the living, the dead and those yet to be born.’[7]

Numerous previous works have detailed the influence of William Blackstone on the generation of men that framed[8] the U.S. Constitution. Certainly, these men widely read Blackstone, as did many aspiring lawyers and politicians for subsequent generations. The question is not, did he influence them, the relevant question is what parts of Blackstone did they carry forward. We might, as many are apt to do, read the words of these men themselves to discern that answer. This is a wholly inadequate approach. If we begin by reading The Federalist, we would admittedly be reading a document of propaganda[9] intended to sway public opinion.[10] A work that, in more than one entry, contained examples of historical ignorance or perhaps outright deception.[11] If we are to truly understand the impact that Blackstone had on these men, we must examine their contemporary critics, what did they argue against in the proclamations in The Federalist that have proven true? We must look to the generation immediately following the framers to the political debates and to men like Calhoun that warned against the rising manifestation of ideological deficiencies previously warned about by the Antifederalists, to Tocqueville and his observations and warnings and perhaps finally to Lincoln and his war[12] that solidified and ‘corrected’ deficiencies of the Federalist ideology into the very Leviathan-like central state the Federalist promised would never arise.

Hamilton and Madison argued in The Federalist against generally held common sense notions that; only state governments could be free and republican, large countries turn to despotism and they are warlike. The opposing view observed that it is impossible to avoid these circumstances because the people must be vigilant, patriotic, and informed.[13] One can argue that every argument of those originally opposed to the Federalist position has materialized, and likely will only manifest more.[14] Their subtle references to equality over convention, natural law, subsidiarity, and the common good were a drastic departure from the prescriptions of Blackstone.

Tocqueville observed that passion for equality was compatible with both tyranny and liberty and democratic principles unchecked by morality and virtue could lead to unprecedented levels of tyranny.[15]  He saw the inevitable problems of the ‘march toward equality’, begun subtly with a few words in the Declaration of Independence, woven into the centralizing nature of the Federalist ideal of the Constitution. These notions were completed twenty-five years after Tocqueville's observation by war and a ‘second revolution’ by Lincoln. Materialism, mediocrity, domesticity (de-masculinization), and isolation were the dangers of the equalizing and centralizing plan of the Federalist. Tocqueville foresaw the tyranny of the majority that John C. Calhoun attempted to thwart[16], and that no breakthrough in education could raise the poor to the level of sufficient knowledge to rule.[17] To thwart these dangers Tocqueville saw the need for subsidiarity and morality. ‘Democratic expedients’ such as local self-government, a free and independent church as a societal institution, independent judiciary, and associations were required.[18] Finally, in agreement with Burke and Blackstone, Aquinas, and Aristotle, he saw freedom as impossible without morality.[19]

It was the Jacksonian democratic dream that Tocqueville observed in 1835, and warned of the potential dangers of. A few short years later, in 1842, it was Calhoun that warned of an ‘American political nightmare’.

As the Government approaches nearer and nearer to the one absolute and single power, the will of the greater number, its actions will become more and more disturbed and irregular; faction, corruption, and anarchy, will more and more abound; patriotism will daily decay, and affection and reverence for the Government grow weaker and weaker, until the final shock occurs, when the system will rush to ruin, and the sword take the place of the law and Constitution. [20]

It was Lincoln that completed the centralization and transformation beginning in 1861 in what George P. Fletcher observes as a second constitution after 1865. One based on “organic nationhood, equality of all persons, and popular democracy” concepts in opposition to those of our first constitution which promulgated “peoplehood as a voluntary association, individual freedom, and republicanism”.[21] These new principles align very well with the foundation and words in The Federalist, yet at a base level, they are completely detached from the whole of Blackstone’s philosophy.

Thus, it can be argued the Federalists were wrong, the very things they denied, and their opponents predicted occurred.  They were wrong because they applied only a positivist interpretation of Blackstone and ignored his reliance on foundational matters; the source of law[22], the importance of subsidiary institutions, of checks and balances, convention and ultimately of the role of morality and of institutions that engender morality.  This was an ideology based upon defective philosophy[23], ultimately it was deceit we have been warned to avoid (Colossians 2:8). Blackstone’s influence is still immense, legal positivism is derived in a perverted way from his philosophy; this, of course, does not comport with his meaning as it lacks the prudence in the spirit of the law that Montesquieu, Blackstone, Burke, and even Tocqueville would prescribe. There is little else he might recognize or approve of in our system.

@onlyBarryLClark


[1] Cotterrell, Roger. “Common Law Approaches to the Relationship between Law and Morality.” Ethical Theory and Moral Practice, vol. 3, no. 1, 2000, pp. 9–26. JSTOR, www.jstor.org/stable/27504116.

[2] ‘Tenuously derived principles’ here is meant to imply that if one strips from Blackstone his conception of the foundation of the law, the relationship of the civic and common law to natural, revealed and divine law and retains only his principles of the progressiveness of the law one arrives at legal positivism.

[3] Strauss, Leo, Cropsey, Joseph. History of Political Philosophy. United States: University of Chicago Press, 2012. p. 623.

[4] Ibid. pp. 626-627.

[5] Ibid. p. 629.

[6] Ibid. 630.

[7] Ibid. 697.

[8] As Burke stated, ‘the dead are not founders’ (Strauss, Cropsey., p. 697), America was certainly not ‘founded’ in 1776 nor 1789. The Constitution framed and ratified in 1789 merely formed a central government limited in powers by the sovereign states.

[9] Coenen, Dan., “A Rhetoric for Ratification: The Argument of The Federalist and its Impact on Constitutional Interpretation” Duke Law Journal, Vol. 56:469. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1303&context=dlj. p. 472.

[10] Strauss, Cropsey., p. 659.

[11] J.R. Pole. The Federalist. Hackett Publishing, Cambridge,  2005. p. 87. See Hamilton in Number Sixteen, “I confess I am at a loss to discover what temptations the persons entrusted with the administration of the general government could ever feel to divest the states of the authorities of that description.” Such usurpations were amply observed in history prior to this statement and have been rampant in U.S. history since ratification.

[12] See previous argument, Clark, Barry, “The First War of the New Order: How Rule of Law and the Form of Government Changed in America's Second Revolution” (February 7, 2016). Available at SSRN: https://ssrn.com/abstract=2728971 or http://dx.doi.org/10.2139/ssrn.2728971.

[13] Strauss, Cropsey., p. 663.

[14] See previous argument, Clark, Barry, “From Radical Progressivism to Authoritarianism” (December 19, 2019). Available at SSRN: https://ssrn.com/abstract=3506918 or http://dx.doi.org/10.2139/ssrn.3506918.

[15] Strauss, Cropsey., p. 763.

[16] Kirk Russell, “Calhoun Vindicated”, https://calhouninstitute.com/calhoun-vindicated/, Southern Partisan Magazine, Volume III, Number 1 (1983)

[17] Strauss, Cropsey., 770.

[18] Ibid. 773.

[19] Ibid. 779.

[20] Cheek, H. Lee. Calhoun and Popular Rule: The Political Theory of the Disquisition and Discourse. United States: University of Missouri Press, 2004. p. 156. Calhoun, J.C., Speech in Support of the Veto Power” 28 February, 1842.

[21] Fletcher, G P. 2003. Our Secret Constitution: How Lincoln Redefined American Democracy. Oxford University Press. https://books.google.com/books?id=P5VSyor50fIC.

[22] Tamanaha, Brian Z., “The Contemporary Relevance of Legal Positivism”. St. John's Legal Studies Research Paper No. 07-0065; Australian Journal of Legal Philosophy, Vol. 32, 2007. Available at SSRN: https://ssrn.com/abstract=960280

[23] See previous argument, Clark, Barry, “The Rise of Absurdity in Western Philosophical and Political Views” (January 22, 2020). Available at SSRN: https://ssrn.com/abstract=3523995 or http://dx.doi.org/10.2139/ssrn.3523995

Natural and Revealed Law and Originalism

Coronavirus has taught us much about our culture, form of government and neighbors. Our system does not engender morality and the common-good as virtues. It is perhaps time conservatives reconsidered originalism.

Natural and Revealed law have very little influence on the dominant political philosophy in the U.S. Our political philosophy, an evolved form of Classical Liberalism[i], in the aggregate is shaped primarily by modernist and postmodern ideologies that derive from flawed continental philosophy. Only one of the political margins is shaped or influenced by concepts of Natural and Revealed Law – with little practical effect. Therefore, the influence of these concepts is minimal at most because the ideologies that have developed from Classical Liberalism either deny universals or define justice in terms that simply do not rely upon Natural or Revealed law.

Classical Liberalism, as defined and conceptualized by the two competing dominant ideologies (conservatism and left-liberalism), is the de facto political philosophy in the U.S. Both rely upon a form of reverence for Constitutional originalism. By necessity, this view holds the ‘Founders’ in a revered light and prefers the Federalists position.[ii] This position paints as salutary the revolt against tradition and convention that comprised the true founding of America nearly two hundred years before the birth of the United States.[iii] This is the core of the primary political philosophy in the U.S.,[iv] insofar as one might argue a political philosophy exists at all.[v]

The only remaining influence that Natural and Revealed Law has on political philosophy is only tangentially, on the margins and in some specific issues; abortion and marriage being prime examples.[vi] Few can explain how general revelation points to the truth of these positions. Without the aid of logic, reason, and philosophy, the growing minority is incapable of being understood by the growing majority that holds to no truth. Thus, even at the margins Natural and Revealed law have a shrinking practical effect.[vii]

Augustine argued that the temporal and the spiritual constantly intersect and that philosophy provides the common ground whereby the interaction between believers and nonbelievers can dialogue.[viii] This presupposes s functional philosophy. However, modernism and postmodernism have rendered philosophy impotent.[ix] Augustine held Plato in high regard but acknowledged the inability of pagan philosophers to effect a just society.[x] Augustine’s prescription for human government relied, overly so, on “eternal law…always and everywhere”[xi] History and events have proven man to fallen (Romans 8:3) to hear and abide by the eternal law alone.

Aquinas distinguishes between faith and reason in such a way that a failure of philosophy does not necessitate a failure of theology.[xii] He saw civil society not as deriving from nature[xiii] but as an integral part of the nature of man.[xiv] In his conception, the best form of government would comprise elements of monarchy, aristocracy, and polity.[xv]

The primary framers of the U.S. Constitution valued a theoretical, idealized, Neoplatonic conception of government. The Federalists in their writing demonstrated either a complete lack of comprehension of history and human nature or, perhaps more nefariously, a lie. Consider Hamilton in The Federalist number Seventeen discussing fears the central government would usurp local and state powers, abolishing subsidiarity. “I confess I am at a loss to discover what temptations the persons entrusted with the administration of the general government could ever feel to divest the states of the authorities of that description.”[xvi] History before and after 1787 proves that statement wrong, and Hamilton knew or should have realized this fact.

Originalism, a harkening back to the intent of the ‘Founders’ by conservatives is a plea to Neoplatonic idealism, a system that depends on citizens being good.[xvii] It is not sustainable, it lacks mechanism that ensure morality and the common good[xviii] as a virtue.[xix] Under such a system, Revealed and Natural Law have little practical effect or influence.

@onlyBarryLClark


[i] Classical Liberalism was flawed at the start and necessarily had to end in an abandonment of reverence for the Divine as it began focused on the power of man’s reason.

[ii] See, M. Diamond. Democracy and the Federalist: A Reconsideration of the Framers’ Intent, The American Political Science Review, Vol. 53, No. 1 (Mar., 1959), pp. 52-68. DOI: https://www.jstor.org/stable/1951730. For an example of ‘conservative’ Straussian arguments that synthesize the Framing and the Declaration of Independence.

[iii] We must first acknowledge that “America” had numerous founding’s, each with different goals, philosophical outlooks and worldviews. The U.S. was founded in 1787, but America has a much more diverse and longer history. Regions, states and the people that lived in each often had very different views of the role of Natural and Reveals Law in the political process. We must acknowledge that not all Framers held to the political philosophy. The debates before Ratification and until 1850, have influence that resonates to some degree with a minority view that persists. We must therefore acknowledge that The Federalist Papers were public relations documents, propaganda if your will, designed to appeal to support. They are inadequate to inform us of much of the intent of the Federalists themselves as they contain contradictions and, in some cases, outright misrepresentations and falsehoods (Federalist #68 for example). We must acknowledge the fundamental change in the nature of the Federal compact in 1861-1877. This change solidified Platonism as the dominant political philosophy in the U.S.

  For instance, most Americans accept that the “right to bear arms” is enshrined in the U.S. Constitution. Americans in the early eighteenth century would have understood this to be a state issue. Most would have understood that the concept of that right and others was a result of ancient British liberties rather than a Lockean social contract and a Federal constitution. 

[iv] See, “Government for the Common Good”, https://calhouninstitute.com/government-for-the-common-good/ for the arguments related to the presuppositions that support the argument presented here.

[v] Deviation only exists on the margins, paleoconservatism on the right and socialism on the left. The vast middle majority is shaped much more by ideology than true philosophy. Where issues that ought to be informed by Natural and Revealed law are debated in the public square these matters are shaped and corrupted by flawed notions deriving from events prior to the Framing and after. Because of our diverse founding coupled with the opposing views of political philosophy that were prominent until the mid-nineteenth century, and resident in some local and state laws until the mid-twentieth century, many Americans hold conceptions of politics that are best described and philosophically dissonant. This dissonance manifests for instance in ‘conservative’ Christians in the last several years that have accepted and fully supported national security policies that abandoned entirely the Thomistic concept of jus ad bellum as well as policies and programs that expand the power and scope of the central government. “Conservatives” cling to rights but attach the origin of those rights to a Ciceronian jurisprudence, not to ancient liberties and accidents of history as Burke might suggest. The left has essentially abandoned entirely the notion of universals as a basis for justice. It has abandoned the Lockean aspects of Classical Liberalism for a Hobbesian view. However, despite the subtle differences in the majority middle, these ideological divides share a Platonic foundation.

[vi] Even on those issues, the approach, and perhaps the understanding of most that support a position that aligns with Divine Law typically do so more ideologically than philosophically.

[vii] See, “Natural Rights and the First Amendment”, The Yale Law Journal, Volume 127, Number 2, 2017-1018, https://www.yalelawjournal.org/article/natural-rights-and-the-first-amendment. For an argument that the Framers held presuppositions about rights harkening to Natural Rights and a distinction between the Federalist and Anti-Federalist position of Common-law as a source of illumination of the Natural law.

[viii] Cropsey, Joseph. History of Political Philosophy. United States: University of Chicago Press, 2012. p. 177.

[ix] See polemic argument, http://www.openculture.com/2018/02/noam-chomsky-explains-whats-wrong-with-postmodern-philosophy-french-intellectuals.html

[x] Strauss and Cropsey, pp. 180-181.

[xi] Ibid. p. 184.

[xii] Ibid. 252.

[xiii] See argument why the Lokean/Hobbesian concept of the state of nature is wrong, “How Locke and Hobbes Were Wrong: State of Nature”, http://barryclark.info/how-locke-and-hobbes-were-wrong-state-of-nature/

[xiv] Strauss and Cropsey, p. 253.

[xv] Ibid. 257.

[xvi] J.R. Pole. The Federalist. Hackett Publishing, Cambridge,  2005. p. 87

[xvii] Tocqueville, Alexis de., Zunz, Olivier. Democracy in America. New York: Library of America, 2004. See, “Liberty cannot be established without morality, nor morality without faith.”

[xviii] Erler, E.J. The Problem of the Public Good in “The Federalist”, Polity, Vol. 13, No. 4 (Summer, 1981), pp. 649-667. https://www.jstor.org/stable/3234644

[xix] See, “Beyond Originalism”, https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/ and “Government for the Common Good”, https://calhouninstitute.com/government-for-the-common-good/.