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The Laws of Nature and of Nature's God: The Role of Theological Claims in the Argument of the Declaration of Independence

Published online by Cambridge University Press:  24 April 2015

Rick Fairbanks
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It is not uncommon in this country to hear someone say something like, “America is a country based on Judeo-Christian principles.” Many of us would accede to some such claim. It has the ring of truth about it, but I suspect that the ring of truth depends on the vagueness of each crucial term in the claim, including “based on,” “Judeo-Christian principles,” and “America.” “America,” for example, might stand in here for the Constitution, popular mores, governmental institutions, or extra-Constitutional fundamental political claims, etc. I intend to make this claim precise in a number of ways, and then to ask whether the ring of truth remains. Although I address a considerably narrower claim, that claim is not without interest. If nothing else, I hope the reader will see what an immense task awaits those who wish to defend the claim in its general form.

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Articles
Information
Journal of Law and Religion , Volume 11 , Issue 2 , June 1994 , pp. 551 - 589
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1994

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References

1. It will come as a surprise to no one that figures from the religious right take this point to be obvious. Jerry Falwell claims that “Any diligent student of American history finds that our great nation was founded by godly men upon godly principles to be a Christian nation.” Falwell, Jerry, Listen America 29 (Doubleday, 1980)Google Scholar. Perhaps more surprising would be Justice Brewer's assertion, in the majority opinion in Church of the Holy Trinity v US, 143 US 266, 471 (1892) that the United States is a Christian nation or William O. Douglas' claim that “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v Clauson, 343 US 306, 313 (1952). John Kennedy referred in his inaugural to “revolutionary beliefs for which our forefathers fought” among which was “the belief that the rights of man come not from the generosity of the state but from the hand of God.” Bellah, Robert, Civil Religion in America, 96 Daedalus 1 (1967)Google Scholar. Robert Bellah, in discussing the Declaration's claim that we are endowed by our creator with inalienable rights, argues that “[h]ere Jefferson is locating the fundamental legitimacy of the new nation in a conception of ‘higher law’ that is itself based on both classical natural law and Biblical religion.” Bellah, , 96 Daedalus at 6Google Scholar. John Adams claimed that “the general principles, on which the Fathers achieved independence, were … the general principles of Christianity” (Adams to Jefferson, 28 June 1813). Cappon, Lester J., ed, The Adams-Jefferson Letters: The Complete Correspondence Between Thomas Jefferson and Abigail and John Adams at 339–40 (vol 2) (U of North Carolina Press, 1959)Google Scholar. Anson Phelps Stokes, author of the three volume Church and State in America, claims specifically Christian influence in the Declaration. “[T]he Declaration of Independence is itself an evidence of the large degree in which Christian theism and Christian social ideals had been accepted by the founders of the republic …. The two most fundamental Christian teachings, those of our duties toward God and toward our neighbor, permeate the document.” Stokes, Anson Phelps, Church and State in the United States (Harper, 1950)Google Scholar. Having said that there are many who take the Judeo-Christian influence to be obvious, I must also say that it is very difficult to find arguments to that conclusion.

2. Linville, M., On Goodness: Human and Divine, 27 Am Phil Q 143 (1990)Google Scholar.

3. For a fuller discussion of Burlamaqui, see section IV B.

4. Grotius, Hugo, The Law of War and Peace 13, (Bobbs-Merrill, , trans Kelsey, F. and Boak, A.E.R. 1925)Google Scholar.

5. Quoted in White, Morton Gabriel, The Philosophy of the American Revolution 172 (Oxford U Press, 1978)Google Scholar.

6. Id.

7. “Rough draft” refers to the document that Jefferson called the rough draft, although, as Julian Boyd argues, this document was most likely not the earliest written version of the Declaration. No earlier draft of the Declaration has ever been found. Boyd argues that since we know that most of the crossings-out and interlineations in the Rough Draft were the result of Jefferson's interchanges with Adams, Franklin, and the other members of the draft sub-committee, we also know that the document on which those changes were made must have been an exceptionally clean copy. Given the complexity of the rhetoric in the Declaration, Boyd argues that it is highly unlikely that Jefferson was able to produce a fair copy without numerous corrections and changes of his own. Therefore, he argues, Jefferson must have produced a fair copy for the sub-committee from his own earlier drafts. Boyd, Julian Parks, The Declaration of Independence: The Evolution of the Text as Shown in Facsimiles of Various Drafts by Its Author, Thomas Jefferson 19 (Princeton U Press, 1945)Google Scholar. Boyd's book provides the authoritative account of how the Declaration was revised by Jefferson, committee members, and the Continental Congress.

8. Lincoln, speaking at Independence Hall in 1861 said, “All the political sentiments I entertain have been drawn, so far as I have been able to draw them, from the sentiments which originated in and were given to the world from this Hall. I have never had a feeling, politically, that did not spring from the sentiments embodied in the Declaration of Independence.” Bellah, 96 Daedalus at 9 (cited in note 1).

9. My categories, although somewhat different in terminology, closely follow Frankena's categories in Frankena, William, Public Education and the Good Life, 31 Harv Ed L Rev 413 (1961)Google Scholar and Frankena, William, Is Morality Logically Dependent on Religion? In Helm, P., ed, Divine Commands and Morality (Oxford U Press, 1981)Google Scholar.

10. Frankena calls this kind of dependence causal or genetic. ‘Causal’ is ambiguous in this context. It can refer to the religious origin of ethical belief or to the role that religious belief can play as psychological cause (such as motive) for ethical action. When I speak of the causal role of religious belief, I will be using the term exclusively in the second sense.

11. Someone, referring to my own analogy between national identity and personal identity, might argue that our saying “that's just not like you” is a kind of argument. When we say such things we are giving reasons why our friend should stop acting the way he is. But it is a weak reason at best in the absence of some other supporting reason. I have little reason to continue acting a particular way simply because that is how I have always acted. The apt reply to “that's just not like you” is sometimes, “exactly.” By analogy, the fact that we understood ourselves as a religious if not Christian nation until well into this century is no reason by itself to understand ourselves that way today. I am inclined to think that when we say things like “that's just not like you” we are not offering an argument, but rather we are pointing to our friend that he has forgotten himself, that he has lost track of who he really is. If he is self-consciously engaged in self-transformation, our words are ineffectual.

12. Frankena refers to this second kind of epistemological dependence as logical dependence. But this term invites confusion, since some working on divine command ethics refer to the world's dependence on God's action as logical dependence. This is what I call metaphysical dependence.

13. See Noll, Mark A., Hatch, Nathan O. and Marsden, George M., The Search for Christian America (Crossway Books, 1983)Google Scholar.

14. Although two arguments might both entail the same conclusion, one might be more efficacious than the other because its premises are more widely accepted.

15. Hume is the obvious exception. In Part XII of the Dialogues Concerning Natural Religion, Philo attacks Cleanthes' conventional views on the salutary role of religion as motivator of morality. Hume, David, Dialogues Concerning Natural Religion (T. Nelson, 1947)Google Scholar. Philo here repeats many of Hume's views as expressed in the Natural History of Religion. Hume, David, The Natural History of Religion (Stanford U Press, 1957)Google Scholar.

16. I want to avoid arcane questions about the metaphysics of acts. I am assuming that there are common sense ways of distinguishing actions and distinguishing parts of actions from the actions of which they are parts.

17. See Noll, et al, The Search (cited in note 13).

18. I say “at least” because the phrase “endowed by their creator with certain inalienable rights” might also be thought to indicate metaphysical dependence.

19. Frankena, , 31 Harv Ed L Rev at 423 (cited in note 9)Google Scholar.

20. There is some controversy as to whether the change was made by Jefferson himself or was suggested by Franklin. If the change seems too substantive to be regarded as merely stylistic, too substantive to think that Jefferson would regard the change as one of style only, then, given that Jefferson describes the alterations made by Franklin and Adams as “two or three only, and merely verbal,” we have reason to believe that the change was Jefferson's. Bergh, A. E., ed, The Writings of Thomas Jefferson 461 (Thomas Jefferson Memorial Assoc, 1905) (8/30/1823 letter to Madison)Google Scholar.

21. In the Western philosophical tradition the concept of omnipotence has usually been analysed as the property of a being who can doing anything that it is logically possible to do. On this understanding of the notion even an omnipotent being cannot make round squares. This understanding of omnipotence has, at least since Leibniz, played a central role in theological and philosophical discussions of evil. Even an omnipotent being could not have created a better world than this one if this world is the best of all possible worlds. Descartes, unlike most in the Western tradition, held that God can do anything, including that which is logically impossible. The question I am raising concerns the reasonableness of giving God credit for that which is logically necessary. I argue that the notion of credit or responsibility is strained to breaking point when we attempt to credit God for what could not have been otherwise. However, some defenders of divine command ethics attempt to do just that. I do not have the space here to comment on those efforts nor need I. There is no hint that Jefferson considered the kind of complexities that occupy philosophers in current discussions of divine command ethics.

22. Strictly speaking, Boorstin does not attempt to show that Jefferson was a volunta-rist. He is interested in the wider project of recovering the “lost world” of Jefferson, lost to us in the 1770 fire that destroyed his papers. Boorstin does argue that Jefferson's equalitar-ianism is a product of his belief in an original creation of a single human species.

23. Boorstin, Daniel J., The Lost World of Thomas Jefferson 9 (Beacon Press, 1960)Google Scholar.

24. Id at 12.

25. Boorstin, , The Lost World at 86 (cited in note 23)Google Scholar.

26. In fairness to Boorstin it should be said that his primary goal is not an analysis of the Declaration. However, he does begin the first chapter in the section on the equality of the human species by referring to the Declaration's reference to equal creation. He does quite clearly want to draw conclusions about that document which are based on his description of the Jeffersonian mind.

27. Wills, Gary, Inventing America 168 (Doubleday, 1978)Google Scholar.

28. A good philosophical example comes to mind—the Vienna Circle. I know of no other group of philosophers so closely identified with each other in the history of philosophy. Perhaps members of the Academy would be an exception. No philosopher would be comfortable with an argument that Carnap believed such-and-such because most of the members of the Circle believed such-and-such. Victor Kraft, a member of the Circle, in his account of the Circle says, “The composition of the Vienna Circle made it inevitable that there would be no such uniformity of views as might be expected in a mere circle of disciples, who simply adopt the teacher's opinion. For, after all, at least the leading members were independent thinkers.” Kraft, Victor, The Vienna Circle 15 (Philosophical Library, 1953)Google Scholar. Surely the same thing can be said for the leading members of the American Philosophical Society.

29. Jefferson's most extensive comments on Blacks occur in his Notes on the State of Virginia. “The opinion, that they are inferior in the faculties of reason and imagination, must be hazarded with great diffidence. To justify a general conclusion, requires many observations, even where the subject may be submitted to the Anatomical knife, to Optical glasses, to analysis by fire, or by solvents. How much more then where it is a faculty, not a substance, we are examining; where it eludes the research of all the senses; where the conditions of its existence are various and variously combined; where the effects of those which are present or absent bid defiance to calculation; let me add too, as a circumstance of great tenderness, where our conclusion would degrade a whole race of men from the rank in the scale of beings which their Creator may perhaps have given them. To our reproach it must be said, that though for a century and a half we have had under our eyes the races of black and of red men, they have never yet been viewed by us as subjects of natural history. I advance it therefore as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites in the endowments both of body and mind. It is not against experience to suppose, that different species of the same genus, or varieties of the same species, may possess different qualifications. Will not a lover of natural history, one who views the gradations in all the races of animals with the eye of philosophy, excuse an effort to keep those in the department of man as distinct as nature has formed them.” Peden, W., ed, Notes on the State of Virginia 143 (U of North Carolina Press, 1955)Google Scholar.

30. White, , Philosophy at 163 (cited in note 5)Google Scholar.

31. Id at 168.

32. Id at 164-65.

33. I must confess to being mystified by this claim. Is life a part of the essence of human beings alone? Or is it part of the essence of any living being? If the latter, does the claim just state the truism that no living creature continues to be itself when it dies? Presumably, Burlamaqui does not argue that animals have natural rights. But that would seem to require a distinction between the way life is essential to men from the way life is essential to animals. That distinction is unintelligible.

34. See White, , Philosphy at 145–50 (cited in note 5)Google Scholar.

35. Id at 163.

36. Id at 163-64.

37. Id at 164.

38. Principles of Natural Law was published in 1747.

39. Rights are also characterized as sacred in the passage about slavery deleted by the Continental Congress. “He has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither.” Here ‘sacred’ does not seem to be used in a straightforwardly religious sense. The king has violated human nature's most sacred rights.

40. Laslett, P., ed, Two Treatises of Government, Second Treatise at ¶ 123 (Cambridge U Press, 1960)Google Scholar.

41. Id at ¶ 225.

42. Wills, , Inventing America at 249–51 (cited in note 27)Google Scholar.

43. In addition to the verbal parallels between Locke's Treatise and the Declaration mentioned in the text, we have further evidence of the influence of Locke on Jefferson. First, Jefferson expltctly cites Locke's influence on the Declaration, “All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc., etc.” Bergh, , Writings 10, 343 (cited in note 20)Google Scholar. What makes this claim especially significant is that it comes in reponse to Richard Henry Lee's claim that in the Declaration Jefferson plagiarized Locke. That Lee would make such a charge is evidence of the Lockean influence and that Jefferson would respond to the charge so phlegmatically is further evidence. In effect he doesn't deny the charge; he just says that he did not actively crib from a specific book open on his desk. Second, Jefferson praises the Second Treatise as “perfect so far as it goes. Descending from theory to practice, there is no better book than the Federalist” (Papers 16, 449Google Scholar). Third, Jefferson's views of religious liberty are clearly shaped by Locke (see section IV, D), so clearly so that William Lee Millers remarks that “Jefferson's statute contains enough echoes of John Locke's Letter Concerning Toleration for a twentieth-century student in Mr. Jefferson's university to wonder whether in composing it Mr. Jefferson had violated the unversity's honor code.” Miller, William Lee, The First Liberty: Religion and the American Public 64 (Alfred Knopf, 1986)Google Scholar. Finally, Jefferson sought busts of Locke, Newton, and Bacon, seeing them as the pantheon of the Enlightenment (Papers, 14: 467–68Google Scholar). Garry Wills attempts to undermine the significance of these references to Locke in an effort to establish his own thesis of the centrality of the Scottish Enlightenment for Jefferson. Wills, Garry, Inventing America at 169–74 (cited in note 27)Google Scholar. I disagree with Wills, but even if he succeeds in debunking the thesis that “Locke was in the air” at the time of the writing of the Declaration, his argument does not undermine my claim that there is strong evidence that Locke is clearly more central to Jefferson's thinking than was Burlamaqui.

44. The index to the first twenty volumes of Jefferson's papers includes no references to Burlamaqui. There are however, numerous references to Grotius and Pufendorf. Together with Wolf, Jefferson takes Grotius and Pufendorf to be the authorities on matters of natural law. An interesting example of this is his paper written while Secretary of State on the question of whether a change of administration provides grounds for revoking treaties. Bergh, , Writings at III, 235 (cited in note 20)Google Scholar.

45. White takes issue with this claim by pointing to the case of Locke, who, he says, was much taken by Newton, but who did not regard laws of nature as necessary truths. But even if we grant the point to White, citing Locke as a single exception hardly undermines the claim. For an argument to the contrary conclusion, see Gay, Peter, The Enlightenment: An Interpretation 457 (Alfred Knopf, 1966)Google Scholar and Becker, Carl L., The Heavenly City of Eighteenth Century Philosophers 38 (Yale U Press, 1932)Google Scholar.

46. When one provides a semantics for a formal language one is specifying what the sentences of the language are about. It has been claimed that, at least intuitively, the sentences of modal logic—that is, the logic of possibility, actuality, and necessity—are best understood to be about possible worlds. Hughes, G.E. & Cresswell, M.J., An Introduction to Modal Logic 75–80 (Methuen and Co., 1968)Google Scholar. For example, to claim that it is possible that it will snow on the 4th of July is just to say that there is a possible world in which it snows on the 4th of July. To say that it is impossible for God to make a rock so large that He cannot move it, is just to say that there is no possible world in which God makes a stone He cannot move. To say that it is necessarily the case that 2 + 2 = 4 is just to say that 2 + 2 = 4 in every possible world. Philosophers have also attempted to capture the logic of counterfactuals in possible world semantics; for example, “Lee could have won the battle of Gettysburg if he had retreated to a defensive position after the second day of battle,” might mean something like, “there exist a group of possible worlds, sufficiently close to (like) the actual world, such that in those worlds, Lee wins the battle of Gettysburg.” For most contemporary philosphers possible world semantics is a fiction that makes the meaning of modal claims clear.

47. Palsgrave, Jehan, Leclairissement de la langue francoyse, 1530Google Scholar.

48. William Cruise, A Digest of the Laws of England.

49. Boyd, J., ed, The Papers of Thomas Jefferson 119 (Princeton U Press, 1950)Google Scholar.

50. Cousins, Norman, ‘In God We Trust’: the Religious Beliefs and Ideas of the American Founding Fathers 290 (Harper & Row, 1958)Google Scholar.

51. Id at 280.

52. Peden, , Notes at 46 (cited in note 29)Google Scholar.

53. “The truth is that Locke, and the English Whigs, and Jefferson and Rousseau even more so, had lost that sense of intimate intercourse and familiar conversation with God which religious men of the sixteenth and seventeenth centuries enjoyed. Since the later seventeenth century, God had been withdrawing from immediate contact with men, and had become, in proportion as he receded into the dim distance, no more than the Final Cause, or Great Contriver, or Prime Mover of the universe ….” Becker, Carl, The Declaration of Independence: A Study of the History Political Ideas 36–7. (Vintage Books, 1942)Google Scholar.

54. Kurland, Phillip and Lerner, Ralph, eds, The Founders' Constitution 77 (U of Chicago Press, 1987)Google Scholar.

55. I say “rightly or wrongly” because some philosophers have argued that the notion of belief at will is contradictory. They argue that the involuntariness of belief is part of the analysis of the concept of belief. If this were true, then, on lines I argued earlier, it would not have been in God's power to propagate religion by coercive means. This discussion of the involuntary character of belief shows Jefferson at his most Lockean. Locke, in the first Letter Concerning Toleration, had argued that since belief is a necessary product of one's understanding of evidence, one cannot change belief without changing one's assessment of the relevant evidence. Since this is true, Locke reasoned, belief is not subject to coercion. Therefore, Locke argued, even if one's motives in attempting to coerce true belief were pure, the project of attempting to coerce belief is irrational, since one cannot accomplish one's purpose in the project. Horton, J. and Meredus, S., eds, A Letter Concerning Toleration (Routledge, 1991)Google Scholar.

56. This contradiction is not limited to Jefferson. Most of his contemporaries, not to mention most of our contemporaries, speak freely of liberty of conscience. But if the Lockean point about the involuntariness of belief is correct, then there is no real sense in which we are free to believe anything. Of course that is Locke's point: it is irrational to attempt to do—coerce belief— what cannot be done. The general point that I can coerce someone only with respect to those things over which she has freedom of action entails that in whatever sense or to whatever degree the conscience is free, in that sense and to that degree the conscience is subject to coercion. This was Jonathan Proast's point against Locke: it might be irrational to attempt to coerce belief, but it is not irrational, for example, to attempt to coerce someone to read the Bible.

57. McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv L Rev 1409 (1990)CrossRefGoogle Scholar.

58. Id at 1415 (emphasis mine).

59. See Berns, Walter, The First Amendment and the Future of American Democracy (Basic Books, 1985)Google Scholar and Malbin, Michael J., Religion and Politics: The Intentions of the Authors of the First Amendment (American Enterprise Institute for Policy Research, 1978)Google Scholar.

60. McConnell, , 103 Harv L Rev at 1515 (cited in note 57)Google Scholar.

61. In this case the label “Lockean-Jeffersonian” is misleading. Jefferson's bill introduced in the Virginia Assembly is a bill for religious freedom.

62. McConnell, , 103 Harv L Rev at 1451 (cited in note 57)Google Scholar.

63. Locke: “The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force. Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgement that they have framed of things.” Locke, , Letter at 18 (cited in note 55)Google Scholar.

64. Thomas Jefferson, Bill for Religious Freedom.

65. Locke, , Letter at 18 (cited in note 55)Google Scholar.

66. Id at 36.

67. Id at 42.

68. Id at 44.

69. McConnell, , 103 Harv L Rev at 1456 (cited in note 57)Google Scholar.

70. Id at 1459.

71. Id at 1462.

72. McConnell, , 103 Harv L Rev at 1461–62 (cited in note 57)Google Scholar.

73. Locke, , Letter at 36 (cited in note 55)Google Scholar.

74. Id.

75. Id at 37.

76. Note that the fact that Locke addresses this question at all entails that he did not think that tolerance extended only to religious opinions. It is hard to see what damage one person's religious belief could do to another's estate.

77. Locke, , Letter at 18 (cited in note 55)Google Scholar.

78. Id at 32.

79. See, for example, Wills, Gary, Under God: Religion and American Politics 369–72 (Simon and Schuster, 1990)Google Scholar.

80. Thorpe, Francis Newton, Federal and State Constitutions (Gov't Printing Office, 1909)Google Scholar.

81. If, however, we do not limit ourselves to a historically constrained reading of the Constitution, if we introduce philosophical considerations, then a Lockean reading makes the best philosophical sense of the broad liberty of conscience that most of us are presently prepared to grant.

82. Thorpe, , Federal and State Constitutions at 957 (cited in note 80)Google Scholar.