The narrative some have come to trust from talk radio or from public personalities like Pat Buchanan, Justice Antonin Scalia or libertarians such as Ron Paul and Lew Rockwell, is that it is in our best interest to return to the vision of the American Founding Fathers, who, in their estimate, were God-fearing men, lovers of liberty and risked life and limb to save their progeny from tyranny. Voting Republican, in their view, will ensure judges interpret the constitution according to original intent, protect the Church, and our free speech.
There is only problem with this account. It simply isn’t true. Making this case is Christopher A. Ferrara in his latest book, Liberty: The God that Failed.
Weighing in at over 600 pages, Ferrara’s work is a relentless assault on the critical problems our culture is facing today with one significant difference. Rather than blame liberals and multiculturalists for destroying civilization, Ferrara takes aim at the foundational and philosophical make-up of the United States, of which extreme liberalism is but a symptom.
This is a polemical position, not only because it goes against the grain, but because to prove this thesis, a number of taboos, philosophies, histories and complex ideologies must all be tackled and examined closely. It would be inadequate to pluck one figure, cherry-pick a phrase or blame one event to demonstrate how the constitution breaks with western tradition and is an assault on the Church.
By no means did I disagree with the thesis ex hypothesu when I bought the book. I am a monarchist, though sometimes more of a constitutional monarchist, along the lines of Magna Charta, not the Absolutism of Henry VIII or Louis XIV, nor the neutered monarchy that resulted from the so-called “Glorious Revolution”.
Of course, Ferrara is not making a case for monarchy either, rather he appeals to its freedom in contradistinction to the regime established by our Founding Fathers in blood. Nevertheless, we normally hear that kings are tyrannous, King George was evil, and our Founding Fathers broke the spell of monarchy to deliver true freedom from tyranny, which only this country has enjoyed for 200 years.
We will first examine the basic outline of the book and then determine whether or not Ferrara really makes the case.
Ferrara begins by writing about the constitution of Western tradition from the Ancient Greek civic tradition epitomized in Plato and Aristotle, realized with the Catholic faith through Christendom, characterized by the relationship of Throne and Altar, the Catholic tradition of civic freedom and state limits until the break-up following the Protestant Reformation. After that, he moves on to the chief philosophical movements that culminated in the English Civil War, and then, the American Revolution. Ferrara hones in on two philosophers: Thomas Hobbes (a royalist) and John Locke (a Parliamentarian and supporter of revolution against the Stuarts), who, in spite of their different loyalties, essentially possessed the same philosophy. After considering their principles and their employment by American revolutionaries in the war against King George, Ferrara shows their thought unfolding in the subsequent conflicts, in the formation of the Constitution, slavery, the Mexican-American War, the Civil War (American Revolution II) and in the legal and constitutional evolutions leading to where we are today.
Ferrara’s central thesis is that the Leviathan created by our branches of government is neither caused by its current occupants nor Communism, but from the very philosophy which created and is enshrined in the American Revolution and Constitution.
Tradition and its destruction
It is important to make the distinction that when Ferrara describes “monarchy” in the Catholic tradition he is describing what is a limited monarchy, restricted principally by the Pope and the Church, but secondarily by nobles and the people themselves, since kings receive their authority from God to do good, not to resort to despotism. By removing the Church from that equation, the Reformation made Her subservient and removed one of the balancing forces against abuse of power.
This is no more evident than in England where Henry VIII created the act of Royal Supremacy (which violated Magna Charta and his coronation oath which promised not to interfere in the rights of the Church), making him the head of the English church. This conflict produced two English Civil Wars over monarchical limits of power, the question of “popery” and the red-red hand of Rome—a non-issue turned into a major issue by Puritans believing Charles I was secretly Catholic.
As the country divided itself between King and Tradition, a new edifice was created for the temple of liberty with the eventual overthrow and execution of the king, the establishment of an even more dictatorial “liberator”, and a short lived restoration before Enlightenment principles were put into place to make the monarchy subservient to “liberty”.
The major philosophers to influence the thought of liberty, Hobbes and Locke, likewise were divided, but not on the core issue of their philosophy: complete political power to guarantee security, namely, Leviathan. They simply disagreed on where that Leviathan resided. Hobbes believed that the absolutist King, judged by none save God, could protect our security, while for Locke it was the sovereign will of the “people” provided in some representative assembly.
This is not, of course, how it is normally presented. It is usually depicted as though Hobbes supported tyranny as a safeguard for society while Locke supported “freedom”. Ferrara takes the issue head on with a careful examination of Hobbes and Locke, their religious views, their political ideas and concept of the popular will. From there he shows us the influence of the principles of Hobbes and Locke on the French philosophes and the American founding fathers, principally the ideas in Essay on Toleration and An Essay Concerning Human Understanding, both which deconstruct and reject the Ancient Greek and Catholic metaphysical and epistemological tradition in favor of the Enlightenment’s radical doubt.
The social theory of Locke provided the framework for Rousseau’s The Social Contract, which in turn, also influenced Thomas Jefferson. Locke’s social theories flowed from their denial of substance and with his Unitarian “clockmaker god”, rubs out natural law just as it does metaphysics and the soul. As Ferrara notes,
For Hobbes, natural law in the state of nature is not God’s law written on man’s heart, but merely “a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same, and omit that by which he thinketh it may be best reserved.
According to Hobbes, while God has decreed the laws of nature, man has no innate understanding of them, as is shown by varying human opinions over what the natural law requires. Hence, man must be guided solely by the decisions of the civil authorities… Hobbes then, is a legal positivist and a voluntarist: right and wrong are determined solely by the will of the legislator upon emergence from the state of nature, for ‘Where there is no common power, there is no law; where no law, no injustice.’ The doctrine seems shocking until we realize that it represents the juridical status quo of political modernity: the will of the majority trumps the objective moral order. (Liberty, pg. 57)
This would find its way into Locke’s thought, but slightly changed.
A few decades later, the “cautious Locke, standing in Hobbe’s shadow, announces the same new doctrine but with far more prudent language, adding a fundamental development regarding private property…Locke’s doctrine is essentially the Hobbesian state of nature with an emphasis on private property as the primary means of defending the right to self-preservation. His description of the state of nature pleasingly presents it as one of “Peace, Good Will, Mutual Assistance, and Preservation”, with ‘Men living together according to reason, without a common Superior on Earth, with authority to judge between them’ only to concede- literally one page and one section later- that it inevitably devolves into Hobbe’s “State of War” on account of the “want of positive Laws and judge with Authority to appeal to…’ Man is born, says Lock with “a title to perfect Freedom, and an uncontrolled enjoyment of all the Rights and Privileges of uncertain and constantly exposed to the Invasion of others.’ The inevitable State of War ‘once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace’. No matter what Locke’s apologists in academia labor to find by way of distinctions, Hobbes and Locke are essentially at one in their teaching on a state of nature that is really a state of war, giving rise to a “natural law” that is really a natural right to self-preservation by any means necessary. Like Hobbes, Locke declares in the state of nature ‘every man hath a right to punish the Offender, and be Executioner of the Law of nature’ which is none other than the right to self-preservation. (Liberty, pgs. 58-59)
The false concept that the individual precedes society should sound familiar to followers of Lew Rockwell or Glenn Beck. For Hobbes and Locke, whose philosophy Ferrara dubs “Hobbe-Lockean”, man is essentially a brute, free from natural law in the Aristotelian tradition, and does what he wants, with his rights and morality originating from the state (which presupposes they can be taken away). Why is this important? Because this underpins the legal positivism that guided the formation, body and interpretation of the American Constitution.
The American Revolution
How the ideas of a philosopher inspires culture and movements is a difficult question for an author to answer since it is hard to prove that philosopher “x” had so much sway that he actually caused “y”. Yet Ferrara indeed delivers.
The American Revolution fought to achieve objectives most people particularly didn’t care about. In response, the revolutionaries threatened despotic power that would rival their own invective against King George III, who couldn’t even raise an army or tax without Parliament. Merely thinking anti-revolutionary opinions was considered treasonous. Propaganda was used wholesale, and threats of force or force itself, confiscation of property, and imprisonment rather than a yearning for “liberty” stimulated revolutionary support. Once the American Republic had been set up, the old radicals became the new monarchs persecuting those who would do as they had done previously. Ferrara presents the stark reality of the Whiskey Rebellion, Shays’ Rebellion, and others where colonists resisted taxation imposed by the new government, exceeding the previous burden placed on colonists by King George.
The Founding Fathers also threatened the private opinions of their adversaries. In the section “The Tyrannical Apostle of Liberty”, Ferrara notes the following about Thomas Jefferson:
The Loyalty oath statute Jefferson drafted for the Virginia legislature is typical of these totalitarian measures. The purpose of the loyalty or test oath was, of course, to flush out suspected Tories whose hidden thoughts were threats to the revolutionary cause. Jefferson’s definition of a Tory, written in defense of the loyalty oath, is supremely illustrative of the manner in which he and his fellow radicals imposed what they called Liberty on those who would dissent even inwardly from their program: A Tory has been properly defined to be a traitor in thought, but not in deed. The only description, by which the laws have endeavored to come at them, was that of non-jurors, or persons refusing to take the oath of fidelity to the state. (Liberty, pg. 160)
He goes on to document the oath of allegiance compelling every man over the age of 16.
[S]wear or affirm that I renounce and refuse all allegiance to George the third, king of Great Britain, his heirs and successors,, to profess absolute allegiance to Virginia as a free and independent state, and to turn over to the authorities anyone known to be involved in treasons or traitorous conspiracies which I now or hereafter shall know to be formed against this or any of the United States of America.
Whoever refused to take the oath was disarmed, stripped of his voting rights and barred from holding public office, serving on juries, suing for money or acquiring property. Jefferson also participated in drafting a statute that subjected non-jurors to triple taxation. (Liberty, pg. 160)
One of the shining examples is that people voted for Jefferson to avoid the oppressive regime of Adams’ government, however, in his second term Jefferson declared “We’re all federalists now” and pursued the same policies as Adams. (Liberty, pg. 213)
Meet Thomas Jefferson
One of the more interesting elements of this book is the level to which Ferrara deconstructs Jefferson from primary sources. Far from the libertarian “limited government” hero, in his second term Jefferson is a big government ogre. Ferrara provides countless examples of Jefferson’s overreach which, in contrast, makes the caricature of King George look positively saintly:
1. His call for the shooting of Tory counter-revolutionaries who should have been treated as prisoners of war, pursuant to a bill of attainder he himself drafted and pushed through the Virginia legislature.
2. Jefferson’s support for the early Jacobin massacres as expressed in the “Adam and Eve” letter.
3. His lifelong ownership of slaves, some of whom he had flogged for attempting to escape, and his continued slave trading while President.
4. Endorsement of state law prosecutions for “seditious libel” against the President and Congress.
5. His approval of an expedient and quite illegal “amendment” of the Constitution by the Republican-controlled House to expand the definition of “high crimes and misdemeanors” in order to facilitate the impeachment of his Federalist opponent, Judge Pickering, for drunkenness.
6. Jefferson’s declaration that “where the laws become inadequate even to their own preservation… the universal resource is a dictator, or martial law.”
7. His embargo of American shipping, including the federal seizure of ships and cargoes, without due process.
8. His instigation of “treason” trials and his demand for the death penalty for American citizens who had merely attempted to recover their own property from federal agents.
(Liberty, pgs. 237-239)
In popular culture, Jefferson is presented to us as the quintessential Founding Father whose model we ought to follow. He has become the archetype of “liberty”. Yet when Jefferson came to power, he brought into being the truth of the words uttered by David Starkey in his monumental documentary on the English Monarchy, “What is a president, but a king?” Jefferson’s power was greater than that of medieval kings, unchecked by tradition, custom or the Church, and Jefferson far from following any concept of limited government ruled like a tyrant. Likewise Robespierre, whose terror Jefferson approved of in the “Adam and Eve” letters, committed greater crimes and exhibited a vastly greater tyranny than even the lies about Louis XVI!
Ferrara’s legal analysis is especially prescient when we consider most of the Founding Fathers were lawyers, and that they constructed a legal framework that cannot be easily navigated by the rest of us. Ferrara does a superb job of discussing the supremacy clause, states rights and nullification.
Today, those who oppose traditional Catholic social order in favor of Americanism argue that the system itself is not at fault. Our failures are a consequence of bad maneuvers by those who have not truly applied the constitution, and healthy remedies to nullify bad federal laws is the right of the states. This is the argument of “tenthers”, that is, those who see the Tenth Amendment as granting the rights of the states to nullify federal laws, based on the opinion of Jefferson and Madison.
Ferrara demolishes this myth. As unfortunate as it is, because it would in fact be a potent defense against the system, Ferrara shows how the Hobbe-Lockean principles of absolute supremacy of the state guarantee obedience to legal positivism.
In the Kentucky Resolutions, where that state complained about the Alien and Sedition Acts, contemporary libertarians tell us that Kentucky, with Jefferson contributing to the resolution, threatened to nullify the law based on the Tenth amendment. As Ferrara points out in his book, Jefferson did not oppose the Alien and Sedition Acts, believing that the states should carry them out. The Kentucky resolution as a whole, did not say each state can nullify laws they do not like, but that all the states together could (Liberty pg. 207). Kentucky implicitly acknowledged that it would follow all the laws of the Union. This makes sense, because it would be a recipe for anarchy if some states followed laws and other states did not. Madison, the “Father of the Constitution”, argues likewise:
In some of the States, the carriage-tax would have been collected, in others unpaid. In some, the tariff on imports would be collected; in others, openly resisted. In some, lighthouses would be established; in others denounced. In some states there might be war with a foreign power; in others peace and commerce. Finally, the appellate authority of the Supreme Court of the U.S. would give effect to the Federal laws in some States, whilst in others they would be rendered nullities by the State Judiciaries. In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison. (Liberty, pg. 206; cf Madison, Notes on Nullification)
Moreover, the remedy Madison argues for is more or less a protest to Congress, not the idea that each state should nullify laws it doesn’t like.
Thus, the American founders built their Leviathan well, with no possibility of resistance, unless of course if you should successfully revolt, which we will pick up in the second part of this review.