Flagg gets right to the essential questions about my framework below. I believe I have good answers to all four of his questions, but let me begin with the fourth, which asks where the U.S. Constitution fits into the schema, and whether it does not in fact represent a sixth conception of liberty.
My answer is that, if understood as the Founders understood it, the Constitution fits into the first kind of liberty. The key to this is the wee little word “Prudence.”
My fulsome description for the first conception of liberty is “liberty understood as the prudential protection of natural rights.” The Declaration explicitly mentions Prudence in its third sentence, the one that says a people should not seek to abolish a government for “light and transient reasons,” which if carefully considered, reveals that prudence regards revolutions and revolutionary politics as undesirable in and of themselves, and thus that some govt. abuses of or failures to secure natural rights have to be put up with. A lot of judgment about human nature is packed into that, as well as a stern refusal to fall into the mad paradox of rejecting, in the name of a pure and maximal enjoyment of the natural rights, the possible human securing of natural rights. Another way of putting that last point is that Locke, and the Founders, refuse to pose rights against government itself: governments have their “just powers.” Likewise directly following Locke, the Declaration is open to the people establishing any form of government that in their judgment is “most likely” to “secure these rights” and their “safety and happiness.” Constitutional monarchy, oligarchy, aristocracy, even in their most baldly non-republican forms, are legitimate forms of government so long as they in the main secure natural rights and evince no “settled design” to establish despotism. There are hints in Locke that the most prudent choice for the British is a form that involves the regular summoning of a representative body, and in the Declaration, there is an open assumption that only republican forms of government can be prudent for the thirteen states.
What Publius does in The Federalist Papers may summed up as his saying to his fellow Americans that “we now know enough, consulting our own experience, and that found in modern European and ancient history, that this proposed 1787 Constitution (along with the state constitutions it will protect) is our best shot for securing these rights for generations to come.” The centrality of natural rights + our experience-informed prudence = the Constitution.
It is thus prudence, seeking out the best way to secure natural rights, that leads to the constitutional “forms” and “mediations” that Flagg described as perhaps signifying a sixth conception of liberty.
Happy? But now I’m going to bring the complications in.
Since the record of political “experience” (which Federalist No. 52 says we should consult whenever possible) does not begin with the publication of Locke’s Second Treatise, American prudence will consult writers and study leaders who were not Lockean about politics. Do Cato, Cicero, and Lucan have something to teach us about what Liberty is? Does the fall of the Roman republic have something to teach us about what sorts of institutions and dynamics are most likely to preserve Liberty? They do. What is more, they teach us about the content of Liberty itself.
If the Founders had been strict natural rights guys, we would find them saying all over the place, “Read your Plutarch, Livy, Polybius, Aristotle, Tacitus, etc. only for the sake of better understanding what forms of government better protect natural rights; don’t derive your overall idea of Liberty from them.” We would find them highlighting the differences between ancient and modern liberty the way Benjamin Constant did. They don’t do this. All the Founders urge you to read your classics, and while some, like Hamilton and Madison, do speak of the superiority of modern political science, the praise is usually limited to certain specifics, particularly regarding representation, extension, commerce, and courts. (Also separation of powers, but as Flagg knows much better than I, Montesquieu’s thinking on that topic is not only rooted in what one can learn from British experience, but goes back to Roman experience.)
So the Founders were more additive in spirit than theoretic. Locke’s theory and other aspects of modern political science would be added to the republican basics taught you by the Greeks and Romans. The fundamental divide between Aristotle’s naturally political animal and Locke’s individualistic state of nature would seldom if ever get openly expressed in the American political tradition. The first vivid instance that comes to mind is in Calhoun. It seems that in early America, those who were aware of the differences between pre-modern and modern political thought downplayed them.
And this downplaying was, I suspect, as instinctual as it was artful for its most important practitioner, Publius. I have done some initial index work on how Publius speaks of liberty, and can report that very few of his uses of the word have specific reference to natural rights being protected. He speaks of “public liberty” in several places, and of “civil liberty,” or “political liberty.” There is an instance in which “popular liberty” is directly equated with “republicanism,” although there is an instance where he speaks of “liberty and republicanism” as if they were distinct, and another where “republican liberty” is spoken of. The “liberty is to faction as air is to fire” analogy of course indicates that the liberty in mind there involves the freedom of association that allows factions to form, and the majority-rule “republican principle” that makes majority factions so dangerous. “Liberties of the people,” i.e., rights, is a phrase used a few times, but these are not equated with Liberty simply. Most mentions of liberty refer to how it might be lost, and the culprit to be feared is always an usurpation of republican government, i.e. some form of tyranny coming about through conspiratorial means. Could the Senate do it, could the House do it, could this form of presidential selection versus that one do it, etc.
One way Liberty could be lost is described in the stirring last paragraph of Federalist No. 51, where Publius considers a scenario where a minority is denied its natural rights by majority faction. Their insecurity of personal rights scandalously violates Lockean theory, but he denounces this not as a direct affront to Liberty, but as one to Justice. Still, he goes on to say the threat to Justice might well extinguish Liberty, as his argument is that the rights-denied minority (or even a group that fears it will be the next minority to be abused) will likely turn to anti-republican government, such as a hereditary monarchy. Publiusan prudence is showing us that the “republican cause,” which we can largely equate with that of Liberty, needs a government able to secure natural rights if it is to survive. We might say that natural rights do not necessarily appear to be the essence of Liberty here, but do appear to be necessary protections of it.
It is somewhat well-known that Publius said (No. 84) that a Bill of Rights was not needed to protect natural rights, that the entire government was designed so that its normal operations would tend to secure such. It is not so well noticed that he did not dwell upon the Supreme Court’s importance in securing natural rights, nor remembered often enough that the phrase to secure these rights, governments with Supreme Courts are instituted among men is not found in our Declaration.
My main take-away from all this is that Publius, who is constantly talking about Liberty, usually does so in a mode that is more classical than it is obviously Lockean. Montesquieu famously said where the separation of the three fundamental powers is lacking, “there is not liberty.” But that was an advanced or intermediate lesson. What was basic what was what everyone at all familiar with just a few of the classical political books already knew: wherever tyranny existed, “there is not liberty.” In every republican form of government, even the bad ones, there was liberty, at least for the moment — to use Aristotle’s six-regime schema, oligarchy, democracy, polity, and aristocracy all were republican, and all had liberty. Yes, one might scratch your head about whether to say whether there was liberty in a true monarchy, or in something unusual like Sparta. Sure, you might need a Montesquieu, a Gibbon, or a Tacitus to help you notice tyranny’s existence when it has cloaked itself behind certain republican trappings. But the basic sense of liberty is clear enough.
Where things get more complicated for Madison and Hamilton, within the Federalist Papers themselves (but especially after they became political enemies), is a) how demandingly to define what is republican (see No. 39), and b) how closely to associate Liberty with such refined republicanism. But generally, Publius speaks as if where there is a republic that can maintain itself as such, there is liberty. Insofar as the Constitution keeps tyrants or tyrannical cliques from arising within American government and society, it is republican and defends Liberty. No. 51’s lesson that no republic that fails to defend natural rights can long remain a republic is of course very important, but it’s a stretch to say that the main impression about Liberty conveyed by the enitre Federalist Papers is one in which natural rights are front and center.
This stands as evidence for something I stress in the essay. Neither the Constitution Founders nor the Anti-Federalists were philosophically walled-off from the other — the AFs couldn’t help being a more than a bit Lockean, and Madison and Hamilton couldn’t help being more than bit classical.
But could we go further, and say this stands as evidence that “Publiusan” Liberty is a sixth kind? That it was not so much a culture-and-prudence-caused mix, but a fundamentally distinct idea?
The way we might do this is to say that the Liberty envisioned by Publius was “classical-nationalist,” which is really to say, since the “nation” as such didn’t exist in classical times, they were classical in the mid-Roman mode, the mode of the later Roman Republic when it was an Extended Republican Empire. Publiusan Founders were more Ciceronian than Aristotelian, and were seeking to create a political form somewhere between the (long-lived but Caesar-destined) Big Roman Republic and the (too-brief because defeat-destined) Confederacies of Greek Cities (see No. 18). This would line up, particularly if you consider how Madison parts ways with TJ in No. 49, with what Flagg says about “forms” and “mediations.” Just as the widely dispersed Romans needed the gods and glory of Rome to hold them together, Americans will need Reverence for the Constitution and the Founders. All in all, our posited Publiusan Liberty would be for extension, energetic government, and while still endorsing natural rights as a key feature of modern political science, would not regard them as either the center or the sum of Liberty.
My framework considered closely, puts a lot of freight upon a particular Wilson Carey McWilliams essay titled “Democracy and the Citizen,” which makes a powerful case, using the most eloquent Anti-Federalists, a brilliant exposition of Aristotle’s Politics, and a provocatively hostile reading of Publius, for the necessity of the small republic, or at least the empowered township or small state in a federal system, for true democratic liberty. But what I’m suggesting here is that perhaps the more classical men (and ideas) of the Founders have to be divided into two sets: (a) those more attuned to nation-sized republicanism, and (b) those more insistent on polis-sized republicanism.
But then of course we still have to deal with the undeniable natural rights orientation of both Madison (see his essay on “Property”) and Hamilton (see the Teaching American History selection from his “The Farmer Refuted”) that is being combined with this specific classicalism. We would have to dismiss the centrality of the fear for natural rights present in the objections Publius makes to small republics in #s 10 and 51, as well as what his conviction that a constitution ought to be “fundamental law” (see #78) owes to the Lockean idea of social contract.
Besides, the resultant six-part framework would inevitably tend to dismiss contemporary communitarian-localist currents that I doggedly think remain important. That is, I think McWilliams was right that the opposition visible in early America between communitarian liberty and natural-rights focused liberty remains necessary to focus on — it is a real tension still with us, that Ralph’s comment shows us increasingly gets radicalized into the nobody-wins dichotomy between communitarianism and personal autonomy liberty. McWilliams was way too hard on Publius, but right that posing Aristotle against Locke gets us to the bottom of our issues. Washington loving Addison’s Cato, TJ recommending Cicero, Hamilton reading Hume, all the rest of that Roman-specific and Britain-specific stuff muddles the issue with respect to Liberty, and I hold that quite a bit of it can be captured with that one word “Prudence.”
To sum up: In answer to Flagg’s fourth question, I’ve given you a pithy answer; and then I’ve proceeded to show you how the key example of Publius reveals complications in the Founders’ understanding of Liberty; then I’ve shown how that could be pushed in the direction of adding a sixth conception to my five-fold schema; and then I’ve fairly quickly dismissed that move for a bundle of reasons.
As I’m sure that final dismissal is less than satisfying, I will conclude by stressing that the long paragraph at the end of No. 51 is key. Publius is repelled, and expects us to be, by the very idea of Rhode Island on its own, and a basic element of his repulsion is a fear that such a small republic would violate natural rights at the whim of the majority. So if it is the case that when he speaks of liberty generally he often falls into a classical mode, we must remember that the hostility of his understanding to the small republic remains underneath this (see also the comment in No. 9 about constant warfare and tumults among ancient city-states).Whatever this hostility owes to mid-period Roman republican sensibilities as understood in the Anglosphere of the 1700s, it owes as much or more to a concern for natural rights. So despite the complications I have called attention to, I can see no way to disentangle The Federalist’s constitutionalism from its Lockeanism.