The Communist Commons

There is a nexus of issues: property and ownership, land and Lockean rights, the Commons and enclosure, free range and fences. This has been a longtime interest of mine. It goes back to the enclosure movement in England. It led to tumultuous conflict in England and Ireland. This then set the stage for the issues in the American colonies that brought on revolution. The issues remain unsettled going into the 19th century.

There are many angles to this, but I would first offer some background. Traditional European society, as with other traditional societies, was built on various notions of shared land and shared rights. This was well established in the land known as the Commons and guaranteed as part of common law and the rights of commoners (what in the colonies came to be thought of as the rights of Englishmen), established by precedent which is to say centuries old tradition involving centuries of legal cases, going back to the early history of the “Charter of the Forest” and Quo Warranto.

In writing about Thomas Paine’s ‘radicalism’, I noted that it particularly “took shape with the Country Party, the “Country” referring to those areas where both the Commons survived the longest and radical politics began the earliest; the strongholds of the Diggers and Levellers, the Puritans and Quakers; the areas of the much older Celtic, Anglo-Saxon, and Scandinavian ancestries.” From another post that was even more scathing, it is made clear what are the consequences of the true radicalism of early capitalism in privatizing what was public: “The land enclosure movement shredded the social contract and upended the entire social order. It was the most brazen act of theft in English history. It was theft from the many to profit the few.”

This is how millions of English and Irish serfs were made landless and impoverished. In droves, they headed for the cities where many of them died of sickness and starvation. Others were imprisoned, hung, put into workhouses, or sent overseas as indentured servants. Yet more died along the way. Once they were inseparable from the land they lived on, but now their lives were cheapened and so their lives became brutal and short. The earliest indentured servants rarely lived long enough to see the end of their indenture. Those like Thomas Paine saw all of this firsthand and experienced some of it on a personal level.

This is the world out of which the American Revolution was fomented and a new nation founded. The issues themselves, however, remained unresolved. This should be unsurprising, considering Europeans had been fighting over these issues for millennia. Still, for most of history, there was a shared worldview. John Locke wrote about the right of land being based on who used it and improved upon it, but this was simply what most people took as common sense going back into the mists of the ancient world. Feudal serfs thought they had a right to the land that they and their ancestors had lived and worked on for centuries. Native Americans assumed the same thing. Yet Lockean land rights, without any sense of irony, was implemented as rhetoric to justify the theft of land.

Even so, the old worldview died slowly. The notion of private property is a modern invention. It remained a rather fuzzy social construct in the centuries immediately following the Enlightenment thinkers. This was particularly true in the American colonies and later on the frontier of the United States, as claims of land ownership were an endless point of contention. The same land might get sold multiple times. Plus, squatter’s rights had a Lockean basis. Use was the primary justification of ownership, not a legal document.

In early America, there was such vast tracts of uninhabited land. It was assumed that land was open to anyone’s use, unless clearly fenced in. Even if it was known who owned land, law initially made clear that others were free to hunt and forage on any land that wasn’t enclosed by a fence. Both humans and livestock ranged freely. It was the responsibility of owners to protect their property and crops from harm: “Livestock could range freely, and it was a farmer’s responsibility to fence in his crops and to fence out other people’s animals!” This was the origin of the open range for cattle that later on caused violent conflict in the Wild West when, like the wealthy elite back in England, ranchers enclosed public land with claims of private ownership. Barbed wire became the greatest weapon ever devised for use against the commons.

This struggle over land and rights was an issue early on. But the ancient context was already being forgotten. The traditional social order was meaningless in this modern liberal society where claims to rights were individualistic, not communal. Not long after the American Revolution, James Fenimore Cooper had inherited much family land. It apparently wasn’t being used by the property owner and, according to custom, the locals treated it as a public park. Cooper was offended at this act of trespass defended in the his neighbors making a Lockean-like claim of their use of the land. It wasn’t fenced in, as law required, to deny use by the public.

There was a simple reason for this early attitude toward land. It was an anti-aristocratic response to land accumulation. The purpose was to guarantee that no one could deny use of land that they weren’t using. This meant someone couldn’t buy up all the land in monopolistic fashion. Land had one purpose only in this worldview, in terms of its usefulness to humans. Basically, use it or lose it. And many people did lose their land according to such claims of use. That remains true to this day in US law. If a neighbor or the public uses your land for a certain period of time without your challenging their use, a legal claim can be made on it by those who have been using it. In many states, a squatter in a building can go through a legal process to make a claim of ownership.

The conflict involving Cooper and his neighbors was a minor skirmish in a larger battle. It only became a central concern with the large numbers of immigrants putting greater pressure on land ownership. This was exacerbated by conflicts with Native Americans, such as President Andrew Jackson’s forced removal of multiple tribes that had sought to gain legitimacy of legal rights to their land such as building houses and farming, along with assimilating to American culture. This act was the blatant betrayal of Lockean land rights and of the entire justification of law. These tribal members were free citizens of the United States who had both legal title and Lockean claim.

Tensions grew even worse after the Civil War. That was when settlers claiming land ownership came into conflict with both Native Americans and open range cowboys. Then as the railroads encroached, many squatters were kicked off their land, Lockean land rights be damned once again. Interestingly, Abraham Lincoln as a young lawyer worked for the railroad companies in kicking these poor people off their own land. As president, Lincoln wasn’t any kinder to the Native Americans, for the progress of capitalism superseded all quaint notions of rights and ownership.

Another point of conflict was Emancipation (see Ballots and Fence Rails by William McKee Evans). All of the freed blacks became a major problem for the racial order, not unlike how feudal serfs had to be dealt with when feudalism ended. Emancipation also caused disarray in relation to land and property. The Civil War decimated the South. In the process, a large number of Southerners were killed or displaced. There was no one to tell blacks what to do and so they went about living their own lives, squatting wherever they so pleased as long as it wasn’t occupied by anyone else. There was plenty of land for the taking.

This was intolerable to the white ruling class, despite it being entirely within the law. Fraudulent charges were brought against blacks with accusations of trespass, theft, and poaching. It was assumed that anything a black had couldn’t rightfully be theirs and so everything was taken from them, even property they had bought with money made with their own labor. Blacks were often forced off their land and made to return to their former plantations, now as sharecroppers… or else made into forced prison labor, since the law only made private and not public slavery illegal.

All of this led to property laws becoming more narrow and legalistic. Over time, further restrictions were placed on the public use of lands. The Depression Era was the last time when large numbers of Americans were able to live off of the commons. My mother’s family survived the Depression by hunting and foraging on public land and on open private land, as did millions of other Americans at that time. Yet conflicts still happen, such as the Bundy standoff where ranchers thinking they were cowboys in the Wild West pointed guns at federal agents over a disagreement about grazing rights on public lands. It’s amusing that these right-wingers, however misguided in their understanding of the situation, were fighting for the public right to the commons.

By What Right?

Quo warranto.

It’s part of obscure legal terminology. Literally, it translates as “by what warrant”. It is a legal formulation that questions authority in ruling over others, acting in an official manner, demanding compliance, claiming ownership, possessing economic benefits, making use of natural resources, declaring rights, etc. More than anything, it’s the last in the list that is most relevant to the modern mind. By what right?

Quo warranto has a specific legal meaning based on almost a millennia of Anglo-American history. But the idea itself is quite basic and intuitive, not to mention more broad and older (such as settling territorial disputes in the ancient world, “Do you not possess that which Chemosh, your god, has given into your possession? And shall we not possess that which our God has given into our possession?”; Judg. 11:24). This question of authority is at the heart of every challenge to anyone who has demanded or denied something to another. It’s an issue of what kinds and what basis of rights, who gets them and who enforces them.

Every teenager implicitly understands this, an age when arbitrary power becomes clear and burdensome. This sense of unfairness is far from limited to teenagers, though. It concerns every person who was ever taxed without representation, enslaved, indentured, debt bondaged, imprisoned, tortured, sentenced to death, had their land taken away, made homeless, put in a reservation or ghetto or camp (concentration camp, internment camp, or refugee camp)—anyone who felt disempowered and disenfranchised, who experienced power that was unjust and abusive, oppressive and overreaching.

Even the powerful sometimes find themselves demanding by what authority something is being done to them or to what they own. Such as governments forced to deal with revolts and revolutions, kings who have been deposed and sometimes beheaded, politicians confronted by mobs and protesters, and company owners having their businesses shut down by strikers. Authority ultimately is enforced by power and power comes in many forms, typically from above but sometimes from below. Of course, in a real or aspiring democracy, the issue of quo warranto takes on new meaning.

In the United States, quo warranto is most well known in its form as states rights. The history of this involves the secession and Civil War, Native American treaties and land theft, the American Revolution and early colonial relations with the British Parliament and Crown. As such, states rights are directly related to charter rights, as the colonies all had official charters and sometimes were operated as corporations. Charter organizations were once a far different kind of political and economic entity.

The later states of the United States were no longer treated as having charters for, in the early US, they were considered the ultimate source of authority as representatives of the people, not the federal government. It was (and still is) the role of states, instead, to give out charters—and, based on past British experience of the sometimes oppressive abuse of charters, the early states were extremely wary about giving out charters and extremely restrictive in the charters they did give. They wanted to be clear by whose authority charters were upheld or revoked.

This is a long way off from the origins of quo warranto. It first became a serious legal precedent in English law with King Edward I. His actions in challenging particular charters inadvertently helped to institutionalize those and other charters, specifically Magna Carta and the Charter of the Forest. Initially, his focus was on the charters of boroughs, in their self-governance which at the time meant rule by local aristocracy.

This related to feudalism, the commons, and the rights of commoners—as they developed over the centuries. Feudalism formed the basis of later corporatism that became so important during the colonial era. Also, the notion of rights transformed over time as well. The commoners had their rights in relation to the commons. Once the commons were enclosed and privatized, the commoners became landless serfs. This led to centuries of social upheaval, from the English Civil War to the American Revolution.

When the first colonies were established, they quickly began to grow. England had to come to terms with its developing role as an empire. What were the rights of Englishmen as related to the rights of imperial subjects, Englishmen and otherwise. Many colonists sought to maintain rights of Englishmen while some in power sought to take them away. There was the additional problem that an increasing number of British and colonial citizens were not ethnically English. They were also Welsh, Scottish, and Irish; French, German, and Dutch—not to mention enslaved Africans and native populations.

Empire building is messy and complicated. If you want to rule over people, you have to justify your rule to compel compliance. Empires before had faced this dilemma, such as the Roman Empire, which eventually led a Roman emperor to declare all free inhabitants (no matter ethnicity, religion, or place of birth) to be Roman citizens with the rights thereof.

As Roman republicanism was an inspiration for the American founders, I’m sure this historical detail didn’t pass unnoticed—certainly not by the likes of Thomas Jefferson, a learned man about ancient history. Thomas Paine noted the problem of a multicultural empire; and, using different words, essentially brought up quo warranto: If a large number of colonists weren’t English, then by what right do the English have to rule such a vastly diverse and distant population? Even John Dickinson, no fan of revolution, ultimately defended the right if not the principle of revolution based on the precedence of quo warranto in constraining governmental power.

The colonial aspect is inseparable from that of corporations. Early charters didn’t clearly distinguish between types of official organizations. All charters were creations by the government and supposedly served the purposes of the public good. Chartered organizations were public institutions, having no independent rights other than what a government gave them and those rights necessitated obeisance to law and order, a public duty to country and countrymen, and a set of social obligations with a proscribed reason for existence and only for a set period of time before requiring renewal or forfeit.

Technically, even to this day, corporations as chartered by governments remain public institutions, not private organizations. Corporate charters can be revoked at any time for numerous reasons. But a corporate charter isn’t required to operate a business. A corporate charter simply gives legal and economic protections to a business in exchange for serving or at least being in compliance with the public good. What has changed is that, in corporations gaining power over the government, they’ve declared their own private interests to be primary—so defining public interests according to private interests instead of the other way around as it had been defined for all of previous history.

In early America, the idea of corporate personhood would not only have been an alien and oppressive idea but likely even sacreligious. The American founders and the generations that followed knew the dangers of corporate charters to act as oppressive agents of government or to take power for themselves in co-opting the power of government, even gaining influence over government. They regularly warned against this and wrote laws to protect against it. The acute awareness of this danger continued into the early 20th century, only having been forgotten in recent times.

Finding ourselves in an era of corrupt and oppressive corporatism, of a rigged political system and what at this point appears to be a banana republic, of a distant government disconnected from our lives and our ability to influence, of a militarized police state in endless war, we the people are confronted with questions of legitimacy. These are same questions faced by generations before us, by centuries of protesters and revolutionaries. By what right are we being ruled, if it isn’t by the authority of we the people in governing ourselves? Quo warranto?

* * *

Quo warranto
Wikipedia

Quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold. […]

In the United States today, quo warranto usually arises in a civil case as a plaintiff’s claim (and thus a “cause of action” instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation’s charter.

REAL Democracy History Calendar July 4-10

King Edward I, first to utilize the “quo warranto” written order
Quo warranto is a Medieval Latin term meaning “by what warrant?” It’s a written order by a governing power (e.g. Kings in the past, legislatures early in U.S. history, and courts in the present) requiring the person to whom it is directed to show what authority they have for exercising a claimed right or power. It originated under King Edward I of England to recover previously lost lands, rights and franchises.

This power was transferred to states following the American Revolution. State legislatures utilized “quo warranto” powers to challenge previously chartered or franchised corporations that acted beyond their original privileges granted by the state. The result was frequent revocation of corporate charters and dissolution of the corporations — in the name of affirming sovereignty/self-governance.

All 50 states still retain elements of quo warranto. The authority concerning the creation and dissolution of corporations was meant to be a legislative power, not judicial.

Real Democracy History Calendar April 4-10

State ex rel. Monnett v. Capital City Dairy Co., 62 OS 350 (1900) – example of corporate charter revocation
It was common practice in the 19th and early 20th centuries for state legislatures and courts to revoke the charters or licenses of corporations that violated the terms or conditions of their charters. The legal procedure for this was called “quo warranto” in which the state demanded to know what right the corporation possessed to act beyond the terms of its state-granted charter.

Some states were more active than others in utilizing this democratic tool. Here’s an example of the language from an Ohio State Supreme Court “quo warranto” charter revocation decision:

“Quo warranto” may be invoked to stop corporation’s disregard of laws in conduct of authorized business, and to oust corporation if abuse be flagrant….The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world. In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.”

A Better Guide than Reason: The Politics of John Dickinson
by M.E. Bradford

Yet still he felt obliged to deny the principle of revolution, even as he maintained the right. As he had done in the Farmer’s Letters. As he had done since his first appearance in public office, as a member of the Delaware assembly in 1760. For, like no other American political thinker, John Dickinson had absorbed into his very bones the precedent of 1688. In abbreviated form, that creed might be abstracted as follows: The English political identity (the Constitution in its largest sense, including certain established procedures, institutions, chartered rights and habits of thought) is a product of a given history, lived by a specific people in a particular place. Executive, judicial, and legislative arms of government are bound by that prescription and must deal with new circumstances in keeping with its letter and its spirit. The same configuration qua Constitution should be available to all Englishmen, according to their worth and place, their deserts. And any man, upon his achievement of a particular condition (freeholder, elector, magistrate, etc.) should find that his rights there are what anyone else similarly situated might expect. Finally all Englishmen are secure against arbitrary rule under this umbrella and have an equal right to insist upon its maintenance. To so insist, even to the point of removing an offending component by force, is loyalty to the sovereign power.[3] To submit to “dreadful novelty” or dangerous innovation,” even if its source is a prince or minister who came rightfully to his position, is treason.[4] For the authority belongs to the total system, not to persons who operate it at a given time. Or rather, to such persons as “stand to their post” and attempt with and through it nothing contrary to the purpose for which it has been developed. It was this historic and legal identity, formed over the course of centuries by so much trial and error and with such cost in turmoil, which was deemed to be worth whatever efforts its preservation might require—given the danger of being called a rebel—because it was the best known to man.[5] And therefore the most “natural” and conformable to reason. To correct any declension from such experienced perfection was thus clearly more than patriotic. Like the Glorious Revolution itself, it could be called an assertion of universal truth.

[3] Dickinson cites Lord Camden and the statute quo warranto 18th of Edward I. See The Political Writings of John Dickinson, 1764-1774 (New York: Da Capo Press, 19701, edited by Paul L. Ford (originally published 1895), p. 485. From Lord Coke to Chatham ran the argument that law bound King and Parliament. See the famous Dr. Bonham’s Case, 8 Coke 118a (1610). Also Herbert Butterfield, The Englishman and His History (Hamden, Conn.: Archon Books, 1970).

“Why Process Matters,” By Bruce Frohnen
by Peter Haworth

It is worth noting, here, that we Americans owe our liberty, in no small measure, to a rather obscure set of circumstances going back eight hundred years in England. This set of circumstances arose from the greed and desire for power of a king, which were somewhat ironically channeled in a direction favorable to liberty by the procedural tool he chose in his quest.

First signed in 1215, Magna Carta generally is credited with institutionalizing due process in the English tradition. By committing the king to prosecute subjects only according to “the law of the land,” Magna Carta bound him to abide by procedures already existing throughout his kingdom, solidifying a powerful bulwark against arbitrary arrest and punishment. But the binding nature of law on kings was far from assured by this one document. It was significantly bolstered later in the thirteenth century by a series of events that combined elements of custom, law, and contract and related to the humble English borough.

Medieval English boroughs were relatively important towns with their roots in military encampments. Over time, many of these communities gained charters from the crown giving them significant rights of self-government. Whether awarded to them for special services or monetary donations, or rooted in customary relations from time out of mind, these charters were precious to those who held them. In theory, kings could only revoke such charters for cause, or for failure to exercise their rights. King Edward I (1272-1307) sought to bring boroughs more closely into his power by reviewing all their charters at essentially the same time. To do this he used an old common law writ called “quo warranto.”

Quo Warranto (or “by what right”) was a proceeding by which a person or community claiming a right to do something (say, appoint their own tax collectors or keep goods found on the local beach from a wrecked, unclaimed vessel) was ordered to show by what right they exercised their claimed powers. Before Edward, kings occasionally had revoked borough charters, either under quo warranto or through unilateral action. Edward had a grander scheme, by which he made every borough answer the question of by what right they exercised their powers of local self-government. If the party answered the writ successfully they would keep their rights, but if not the charter would be confiscated or held void. […]

Edward sought, not the elimination of all borough charters (he had not the power to make that kind of scheme succeed over time) but to better define which boroughs had what rights and to establish that a borough could have its charter revoked for abuse or noncompliance with its provisions. […] Perhaps the most important, if unintentional, byproduct of Edward’s aggressive program of quo warranto was institutionalization of Magna Carta. His grand, universal scheme required formal procedures, establishing due process rights that guaranteed, in the formula of the time, “each man’s own liberty, warranted by a charter, upheld in the courts.” […] Under Edward’s general quo warranto investigation, due process went so far as to show that the king, as a person, was not above the law.

Colonial self-government, 1652-1689
by Charles McLean Andrews
p. 17

The king’s interest in his revenues, as well as the demands of commerce and trade, the nation’s jealousy of Holland, and the influence of men like Clarendon and Downing, must be taken into account if we would understand the navigation acts, the founding of new colonies, the establishment of new boards and committees, and the quo warranto proceedings to annul colonial charters between 1660 and 1688. The colonies were the king’s colonies, and his also was the burden of providing money for the expenses of the kingdom.

Since the attempt to cripple the Dutch by the navigation act of 1651 proved a failure, the act of 1660, in repeating the shipping clause of the earlier act, made it more rigorous. Thenceforth ships must not only be owned and manned by English- men (including colonists), but they must also be built by Englishmen, and two-thirds of the seamen must be English subjects. In later acts of 1662 and 1663, provision was made whereby real or pretended misunderstandings of this clause might be prevented ; and one of the most important functions of the later committees of trade and plantations was, by means of rules as to passes, denization and naturalization, and foreign-built ships, to prevent trade from getting into the hands of foreigners.

American History
by Macrius Willson
p. 310

About the close of King Philip’s War, the king’s design of subverting the liberties of New England were revived anew, by the opportunity which the controversy between Massachusetts, and Mason and Gorges, presented for the royal interference, when New Hampshire, contrary to her wishes, was made a distinct province and compelled to receive a royal governor. ‘Massachusetts had neglected the Acts of Navigation— the merchants of England complained against her—she responded by declaring these Acts an invasion of the rights and liberties of the colonists, “they not being represented in parliament,” and when finally the colony refused to send agents to England with full powers to settle disputes by making the required submissions, a writ of quo warranto was issued and English judges decided that Massachusetts had forfeited her charter. Rhode Island and Connecticut had also evaded the Acts of Navigation, yet their conduct was suffered to pass without reprehension. It was probably thought that the issue of the contest with the more obnoxious province of Massachusetts would involve the fate of all the other New England settlements.

Throughout this controversy, the general court of Massachusetts, and the people in their assemblies, repeatedly declared they would never show themselves unworthy of liberty by making a voluntary surrender of it ; asserting, “that it was better to die by other hands than their own.”—The resolute, unbending virtue, with which Massachusetts defended the system of liberty which her early Puritan settlers had established, and guarded with such jealous care, deserves our warmest commendation. The Navigation acts were an indirect mode of taxing the commerce of the colonies for the benefit of England; and the opposition to them was based, mainly, on the illegality and injustice of taxation without representation—a principle on which the colonies afterwards declared and maintained their independence.

pp. 320-1

In his relations with the American colonies, James pursued the policy which had been begun by his brother. The charter of Massachusetts having been declared to be forfeited, James at first appointed a temporary executive government, consisting of a president and council, whose powers were to extend over Maine, New Hampshire, Massachusetts and New Plymouth; and soon after he established a complete tyranny in New England, by combining the whole legislative and executive authority in the persons of a governor and council to be named by himself. Sir Edmund Andros received the office of governor-general.

It being the purpose of James to consolidate all the British colonies under one government, measures were immediately taken for subverting the charters of Rhode Island and Connecticut, both of which colonies were now charged with making laws repugnant to those of England. Writs of quo warranto were issued against them, but the eagerness of the king to accomplish his object with rapidity caused him to neglect to prosecute the writs to a judicial issue, and the charters were thereby saved from a legal extinction, but Andros arbitrarily dissolved the institutions of these colonies, and by the authority of the royal prerogative alone assumed to himself the exercise of supreme power.

The government of Andros, in obedience to the instructions of his royal master, was exceedingly arbitrary and oppressive, and he often took occasion to remark “that the colonists would find themselves greatly mistaken if they supposed that the privileges of Englishmen followed them to the ends of the earth; and that the only difference between their condition and that of slaves, was, that they were neither bought nor sold.”

In 1688 New York and New Jersey submitted to the jurisdiction of Andros. A writ of quo warranto was issued against the charter of Maryland also, and that of Pennsylvania would doubtless have shared the same fate had not the Revolution in England arrested the tyranny of the monarch. “When some vague intelligence of this event reached New England, the smothered rage of the people broke forth, and a sudden insurrection over threw the government of Andros—sent him prisoner to England—and restored the ancient forms of the charter governments.

The important events in England, of which the new settlement of the crown and the declaration of rights are the closing scenes, are usually designated as the English Revolution, or, the Glorious Revolution of I688. This Revolution gave to England a liberal theory of government, based on the avowed principle that the public good is the great end for which positive laws and governments are instituted. The doctrine of passive obedience to the crown, which the princes of the house of Stuart had ever labored to inculcate—which the crown lawyers and churchmen had so long supported, henceforth became so obnoxious to the altered feeling and sentiments of the people, that succeeding sovereigns scarcely ventured to hear of their hereditary right, and dreaded the cup of flattery that was drugged with poison. This was the great change which the Revolution effected—the crown became the creature of the law;—and it was henceforth conceded that the rights of the monarch emanated from the parliament and the people.

This Revolution forms an important era in American, as well as in English history—intimately connected as the rights and liberties of the colonies then were with the forms and principles of American of government that prevailed in the mother country. From this time, until we approach the period of the American Revolution, the relations between England and her colonies present great uniformity of character, and are marked by no great excesses of royal usurpation, or of popular jealousy and excitement. Hence that portion of our colonial history which dates subsequent to the English Revolution, embracing more than half of our colonial annals; has but a slight connection with the political history of England. The several important wars, however, in which England was engaged during this latter period, extended to America; and an explanation of their causes and results will show a connection between European and American history, that will serve to give more enlarged and accurate views of the later than an exclusive attention to our own annals would furnish.

Moreover, these wars, in connection with the growing importance of colonial commerce, exerted a powerful influence in acquainting the several colonies with each other; thereby developing their mutual interests.—softening the asperities and abating the conflicting jealousies which separated them—and, finally, gathering them in the bonds of one political union. The early portion of our colonial history presents a continuous conflict between liberal and arbitrary principles, and shows why we are a free people:—the latter portion, subsequent to the English Revolution, exhibits the causes which rendered us a united people.

Whose Human Nature?

Kenan Malik made a defense of unrestricted free speech. I agreed with his basic argument. But that wasn’t what got me thinking.

In the comments section, I noticed that a couple of people didn’t understand what Malik was trying to communicate. They were conflating the issue of free speech with all the issues related to free speech, as if the only way to enforce control over all of society is by strictly controlling what people are allowed to say, and I assume harshly punishing anyone who disobeys by speaking freely. One of these conflated issues was human nature (see this comment and my responses).

The one commenter I had in mind seemed to be basing his views on some basic beliefs. There is a belief that there is a singular human nature that can be known and upon which laws should be based. Also there is the belief that human nature is unchanging, uncontrollable, and unimproving… all that one can do is constrain its expression.

This kind of thinking always seems bizarre to me. It’s a more typical conservative worldview. It’s the belief that human nature is just what it is and can be nothing else. So, liberals and left-wingers are perceived as being utopian perfection-seekers because they point out that human psychology is diverse, plastic, and full of potential.

I was thinking about this more in my own experience, though, and not just as a liberal. I’ve long realized I’m not normal and I’ve never thought that my own psychology should be considered normative for the human race. If all humans were like me, society would have some serious problems. I don’t presume most people are like me or should be like me.

Here is what I see in others who have strong beliefs about human nature, both descriptively and prescriptively. I often suspect they are projecting, taking what they know in their own experience and assuming others are like them. My self-perceived abnormality has safeguarded me from projecting onto others, at least in my understanding of human nature.

The Cultural Determinants of a Voluntary Society

I was reading more of Beyond Liberty Alone by Howard Schwartz. The latter part of the book is getting more to what personally interests me. He has a detailed discussion about equality, equity, and fairness. This leads him into the issues of private property and the commons.

I’m learning much from this book. It focuses on these ideas, both as discussed by early thinkers and how they have developed over time. One thing I learned was how central the idea of equality was to so many early thinkers. Even before the Enlightenment, Thomas Hobbes and other more religious thinkers were arguing about equality, what it means and where it originated (and, of course, what became of that original state). Hobbes saw equality in a state of nature with Death as the great equalizer. Others saw it as coming from God.

John Locke made a different argument than Hobbes. He relied on a more religious argument. Schwartz goes into great detail about Lockean rights. He makes it clear that Locke left many gaping holes in his logic. He goes even further in seeing all rights talk as being problematic. It poses questions it can’t answer and makes assumptions it can’t justify. Instead of focusing narrowly on rights,  especially natural rights, some of the early thinking on equality might give us a stronger foundation for understanding the values that will better serve us, in our aspirations for a just and moral society. Equality was always an important concern in Western thought. It’s just that we Americans have come to overlook its importance and forget the role it once played.

I was also thinking more about the cultural angle not covered by Schwartz. Locke grappled with both the issues of rights and equality. I was wondering about his background. Maybe I should read a good biography of him one of these days. The detail of his life that has caught my attention is his having spent time in Netherlands, in order to escape repression back in England. Some have conjectured that he might have been influenced by Spinoza or else by the same atmosphere that helped to shape Spinoza’s thought.

That is an interesting conjecture because of the important role Netherlands played in British history. It was a relatively short distance across the channel from East Anglia. The Puritans also had left England to escape repression, some going to Netherlands. When they returned, many settled in East Anglia. The Puritans then carried a particular tradition of egalitarianism to America. This was the foundation of the regional culture of New England.

Following different pathways of influence, other regional cultures developed quite differently.

“The persistence of regional cultures in America is more than merely a matter of antiquarian interest. Regional diversity has created a dynamic tension within a single republican system. It has also fostered at least four different ideas of liberty within a common cultural frame.

“These four libertarian traditions were not forms of classical republicanism or European liberalism—even as those alien ideologies were often borrowed as rationales, American ideas of freedom developed from indigenous folkways which were deeply rooted in the inherited culture of the English-speaking world.

“Considered in ethical terms, each of these four freedom ways began as a great and noble impulse, but all at first were limited in expression and defective in their operation. The Puritan idea of ordered freedom was no sooner brought to Massachusetts than it became an instrument of savage persecution. The cavalier conception of hegemonic freedom, when carried to Virginia, permitted and even required the growth of race slavery for its support. The Quaker vision of reciprocal freedom was a sectarian impulse which could be sustained only by withdrawal from the world. The backcountry belief in natural freedom sometimes dissolved into cultural anarchy.

“But each of these four libertarian traditions proved capable of continuing growth. New England’s Puritan faith in ordered freedom grew far beyond its original limits to become, in Perry Miller’s words, “a constellation of ideas basic to any comprehension of the American mind.” Virginia’s cavalier conceit of hegemonic freedom transcended its association with inequalities of rank and race and gender to become an ethical idea that is relevant to all. Pennsylvania’s Quaker inspiration of reciprocal freedom developed from a fragile sectarian vision into a libertarian creed remarkable for toughness of mind and tenacity of purpose. Border and backcountry notions of natural freedom evolved from a folk tradition into an elaborate ideology.

“Each of these four freedom ways still preserves its separate existence in the United States. The most important fact about American liberty is that it has never been a single idea, but a set of different and even contrary traditions in creative tension with one another. This diversity of libertarian ideas has created a culture of freedom which is more open and expansive than any unitary tradition alone could possibly be. It has also become the most powerful determinant of a voluntary society in the United States. In time, this plurality of freedoms may prove to be that nation’s most enduring legacy to the world.”

Fischer, David Hackett (1989-10-19). Albion’s Seed: Four British Folkways in America (America: a cultural history) (Kindle Locations 14541-14561). Oxford University Press. Kindle Edition.

See also:

Liberty and Freedom
by David Hackett Fischer

Fairness and Freedom
by David Hackett Fischer

American Nations
by Colin Woodard

Revolution of the Mind
by Jonathan Israel

Where Liberty and Freedom Converge

Liberty has been on my mind, because of a book I’m reading, Beyond Liberty Alone by Howard Schwartz. I’m in the middle of the book at present. I wrote some preliminary thoughts in response. One thing is clear at this point. He has an atypical view of “liberty” (Kindle Locations 433-436):

There is something incredibly profound about this insight that liberty implies limitation and not just protection or privilege. This restrictive side of liberty is often overlooked, because the word “liberty” itself tends to be associated with the word “freedom.” Yet “liberty,” as is now evident, implies something more complex. It refers to both freedom and restriction, or, to put it another way, liberty refers to the freedoms that are made possible by living together under restrictions.

This is the second book by him that I’ve read. The earlier book is Liberty In America’s Founding Moment. I haven’t finished that book either, but I’ve been going back to it from time to time. In that book, he had his academic hat on. He was originally a religious studies professor, which gives him a grounding in dealing with historical texts and contexts.

His newer book feels more personal, although the notes in the back of the book show how thorough is his thought process. He says that Beyond Liberty Alone is a book he worked on for a long time. It is part of his own development as an individual, specifically in his career. The story of how he left academia is telling (Howard’s End by Jonathan Mahler):

A few days before Howard Eilberg-Schwartz was scheduled to launch the Jewish studies program at San Franisco State University, he was persuaded by the school’s director of human resources to attend an all-day seminar for select faculty members, students, and local Jewish leaders. It was to be Eilberg-Schwartz’s introduction to the school’s Jewish community, and, understandably, he was nervous. As part of the program, participants were asked to respond to a series of provocative questions by moving to a designated area of the room. When the question “How central is Israel to Judaism?” was posed, he self-consciously took a spot among the smallish group that answered “Not terribly.” And when attendees were asked if they thought the statement “Zionism is racism” was anti-semitic, Eilberg-Schwartz — who sees the movement to create a Jewish state within the broad context of European colonialism — shuffled over toward the corner designated “No.” This time he stood virtually alone.

“I remember people coming up to me afterwards and saying how disappointed they were that I had been named head of Jewish studies,” Eilberg-Schwartz realls now, more than two years later. “That’s when I knew i wasn’t in sync with the local Jewish community. From that moment on, I was branded.”

Indeed, that fateful morning in the summer of 1994 would set the stage for a year of conflict between Eilberg-Schwartz and the local Jewish community, one that would culminate in his preipitious departure from the university — and academia altogether — in the fall of 1995.

This offers some insight why liberty is a personal issue to him. He obviously is an advocate of liberty of conscience and liberty of free speech. He was willing to stand up for what he considered right, despite the very real costs.

I’ve interacted with Schwartz some this past year, including a recent discussion on his Facebook page. I was following his blog for quite a while and would comment there. I had forgotten that he was an author and that I owned one of his books, as I own more books than my memory can keep track of. He reminded me that I had written a comment to an Amazon review of his first book on liberty, a comment that I didn’t remember, as I leave more comments than my memory can keep track of. (There are many issues with my memory.)

It is an enjoyable experience to read a book while also interacting with the author. I did that while reading Corey Robin’s The Reactionary Mind, as he has an interesting blog as well. Corey Robin is one of the many authors that complement Schwartz’s writings. It is Robin who can help explain why the political right has its limited view of liberty, whereas Schwartz in his new book dissects that limited view and offers an alternative.

The alternative view presented by Schwartz has to do with a balance of values, a balance of rights and responsibilities. He is making an argument grounded both in common sense and in the nuanced understanding of the founding generation of American thinkers and leaders. He demonstrates how shallow and downright dysfunctional is the view of liberty on the right side of the spectrum, what he calls the liberty-first position. That right-wing view has come to prominence in recent decades, but it fails on many accounts, including its lack of principled application. More importantly, in their ideological dogmatism, liberty-first advocates ignore basic facts of human nature and human society.

In reading Beyond Liberty Alone, I became curious about what the author might have to say about the commons. As I had the Kindle version, I did a search for the term and found some references to it. He only directly speaks of the commons in one paragraph and a note to that paragraph. Here is the relevant part of the paragraph (Kindle Locations 4190-4193):

The way to address this problem is to seriously treat the ocean, water, air, and wildlife as property in common, in the sense that we are all tenants in common. Tenants in common does not mean it is a free -for-all, which is the supposition of the so-called “tragedy of the commons.” 45 There can be ownership in common and regulations about the use of the commons.

And here is the note (Kindle Locations 5579-5585):

45 . I take this to be one of the original points of Garrett James Hardin in his original essay on “The Tragedy of the Commons,” and one point I agree with. In my reading of Hardin’s original essay, his point is that the commons becomes a tragedy only if it is not regulated and that regulation is needed to protect it. One example he gives is the national parks, which are owned in common (public property) but must be regulated to protect them. His point is that without regulation, things cannot be owned in common successfully. It is beyond the present context to discuss the extensive subsequent scholarship and popular discussion of whether the commons always ends in tragedy or not, and I do not agree with some of Hardin’s subsequent moral conclusions, such as his moral conclusions about preventing immigration in his metaphor of “Living on a Lifeboat.”

Even though his direct mention of the “commons” is limited to this, he writes extensively about that which is held in common and that which offers common usage and benefit. The word “common” comes up a lot in the text. Much of this talk is about social capital, although he doesn’t use that term at all. He does talk about externalities quite a bit, which is about the cost to the commons or the costs held in common, although in reality it is usually the poor and minorities who bear the brunt of those costs.

Schwartz makes a strong argument for the commons, not just as natural resources, but as the entire inheritance of the human species. He makes it clear how much society invests in every individual and how this implies a responsibility of the individual toward society. It is overwhelming all that we take for granted. Everyone of us is the product of immense resources and opportunities given to us. We earned and deserved none of it, except as our shared inheritance in having been born.

In thinking of the commons, my mind always wanders to Thomas Paine. He came of age during the time when the land enclosure movement was having a major impact in England. It was the ending of the last vestiges of feudalism and in its wake it left a mass population of landless peasants. A peasant without the commons to live on is a very desperate person. The population of the unemployed and homeless grew as the commons were privatized or, from the perspective of the commoners, stolen.

This impoverished population flooded into London. Food riots followed. So did the early organizing of labor unions, which happened around the time Paine was in London. The lower classes became concentrated in numbers never before seen and London was where all the action was. The poor weren’t just desperate, for they were also feeling optimistic about new opportunities. Even though they were banned from the universities, the poor took what spare money they had and hired lecturers to teach them about various subjects. Paine joined in this new movement of education and it would set him on his path. He got a taste for the power of learning, the potential in reading and writing.

Paine knew about the commons and what the loss of the commons meant for most people. You can hear the echoes of the commons in some of his later writings. In “Agrarian Justice”, Paine gives a good definition of the commons:

It is a position not to be controverted that the earth, in its natural, cultivated state was, and ever would have continued to be, the common property of the human race. In that state every man would have been born to property. He would have been a joint life proprietor with rest in the property of the soil, and in all its natural productions, vegetable and animal.

He further on emphasizes the significance of public land being made private:

I have already established the principle, namely, that the earth, in its natural uncultivated state was, and ever would have continued to be, the common property of the human race; that in that state, every person would have been born to property; and that the system of landed property, by its inseparable connection with cultivation, and with what is called civilized life, has absorbed the property of all those whom it dispossessed, without providing, as ought to have been done, an indemnification for that loss.

The argument Paine makes is for a land tax that would have funded an early version of Social Security. The privatizing of land was a direct causal factor for impoverishing those forced into a landless condition. The public should be compensated for what was taken from the public:

I have made the calculations stated in this plan, upon what is called personal, as well as upon landed property. The reason for making it upon land is already explained; and the reason for taking personal property into the calculation is equally well founded though on a different principle. Land, as before said, is the free gift of the Creator in common to the human race. Personal property is the effect of society; and it is as impossible for an individual to acquire personal property without the aid of society, as it is for him to make land originally.

This is the basic framework also being used by Schwartz to make his own argument. The difference is that Schwartz has a wider focus on what is held in common, but in essence he is carrying forward Paine’s vision of America. However, he doesn’t mention Paine at all in his most recent book and only makes brief mentions of Paine in his other book on liberty. In neither book does he mention “Agrarian Justice”. So, it seems that Schwartz came to this view independent of Paine’s writings.

When thinking of Paine, I then also think of John Dickinson. Both were raised with Quaker influence, although neither became Quakers. Still, they each maintained close ties to Quakers, specifically in Pennsylvania. Dickinson had ties to the Quaker elite and Paine had ties to the radical Free Quakers. They shared a commitment to Quaker-influenced abolitionism (Dickinson having gone so far as to free the slaves he inherited). Most interestingly, these two great thinkers were also the greatest and most inspiring of the revolutionary pamphleteers. Their Quaker-tinged visions helped shape two separate traditions of political philosophy, Federalism and Anti-Federalism, Dickinson and Paine respectively. These were two major voices in the early debates about liberty and rights.

Schwartz does have a fair amount to say about Dickinson. The main purpose that Dickinson serves is as a foil to Thomas Jefferson. Throughout Liberty In America’s Founding Moment, Dickinson is brought up mostly in reference to Jefferson, as they had two competing views of rights (Kindle Locations 3954-3967):

To summarize, we have seen that within a year of Jefferson’s writing the Declaration of Independence, Jefferson and Dickinson offer their congressional colleagues two different versions of American rights. Neither of these versions of rights is what would be called a classical natural rights theory, like that adopted by the First Continental Congress and put forward by thinkers like James Wilson. Jefferson is still avoiding natural rights language and putting emphasis on the emigration of the ancestors as a justification for American rights. When he does allude to a broader conception of rights, which is buried in the body of his essay, he alludes to the “sacred deposit” provided by God and makes no allusion to reason or rights of nature. Dickinson’s language moves much closer to the natural rights tradition, though he evokes the religious and theological subtradition that places emphasis on God’s role in founding liberty. But Dickinson also appeals to common sense and reverence for the creator as justifications and foundation for liberty. It is arguable that Congress preferred Dickinson’s version not simply because it toned down the view of the colonies as “independent” entities, but also because it provided a broader justification of rights than did Jefferson’s, one closer to the Bill of Rights for which they had already fought so hard to achieve consensus in September 1774.

In any case, the point here is that while others were appealing to a classic version of a natural rights philosophy, Jefferson himself had not abandoned his argument based on emigration. Once again, Jefferson’s view was essentially rejected. Instead, the Congress endorsed a quasi-religious statement of rights, influenced by the natural rights thinking to be sure, but not quite Lockean in the way that some American writers including the First Congress would have articulated it.

It should be noted that Jefferson and Paine were close friends and political allies. They influenced each other’s thinking on many issues. To speak of the ideas of one is to speak of the ideas of the other. So, even though Schwartz speaks so little of Paine, he indirectly invokes Paine every time he mentions Jefferson. For example, the emigration view of rights fits into arguments Paine made. As he wrote in “Common Sense,” it was simply “absurd, in supposing a continent to be perpetually governed by an island,” especially when “Not one third of the inhabitants, even of this province, [Pennsylvania], are of English descent.”

As such, the contrasts and conflicts between Dickinson and Jefferson were also those between Dickinson and Paine. More specifically, this is also about the Quaker elite that governed Pennsylvania and those who sought to challenge that power. But this was also about the Quakers larger history and the traditions that developed from that.

Schwartz, in Liberty In America’s Founding Moment, dedicates an entire section of several pages to Dickinson’s views, “John Dickinson and the Avoidance of Natural Rights Arguments”. I want to tackle this section because there is a context missing that would add greatly to the analysis.

That missing context is of the Quakers. In neither book does he mention the Quakers. He also makes no mention of the Middle Colonies, at least not in those terms. The Middle Colonies had a different place and played a different role in the colonial scheme of the British territory in America, different that is from New England and the South, as I previously explained (The Root and Rot of the Tree of Liberty):

The Middle Colonies in general were what held together British Power on this side of the pond. This is why, during the French and Indian War, the British government spent so much money and effort defending the Middle Colonies. It is maybe understandable that those up in New England didn’t appreciate why they were paying higher taxes for the defense of the colonies when their region was never the focal point of that defense. Those New Englanders couldn’t appreciate that the defense of the Middle Colonies was the defense of all the colonies. They also couldn’t appreciate what it felt like to be in the Middle Colonies which had been the target of foreign empires.

Those in the Middle Colonies fully appreciated this which is why they were so reluctant to revolt. Plus, the Middle Colonies were filled with non-Englishmen who had no history with the British government and monarchy, no history of the English Civil War and Glorious Revolution. Even the Englishmen of the Middle Colonies who did have such history nonetheless had a very different view of it. I speak of the Quakers who had in some ways been given the greatest freedom for self-governance. The Monarchy was at times a better friend to the Quakers than their fellow colonial elites ever had been.

This is the world that Dickinson was born into. It was also the place that Paine. like Franklin before him, would adopt as his home. To understand Pennsylvania is to understand Dickinson and to understand why he came into conflict with the likes of Paine (and Franklin). The Quakers always found themselves in a precarious position, both back in England and in the colonies. Having experienced persecution and oppression as religious dissenters, they came to highly prize security and moderation, which they saw as the foundation of any genuine freedom.

I point to the word ‘freedom’ in contradistinction to ‘liberty’, the latter being the focus of Schwartz’s writings. This is important, as I noted in another post of mine (The Radicalism of The Articles of Confederation):

There were many contested understandings for all these terms. Liberty, in particular, always was a vague term with its origins in Roman slave society. As I’ve mentioned before, Jefferson’s Virginia was shaped by the Cavalier heritage of Roman values. The Declaration and the Constitution refer to liberty and freedom, often seemingly interchangeably, sometimes using freedom as the opposite of enslaved which is the Roman conception of liberty. Quite uniquely, the Articles use freedom as a touchstone while never mentioning liberty even once. That demonstrates a major difference, the Declaration having been written by a slave-owning, liberty-loving aristocrat from Cavalier Virginia and the Articles having been written by a Quaker-raised Pennsylvanian who freed the slaves he inherited.

As far as I know, Schwartz does not explore the origins of these terms. He discusses Dickinson without pointing out that word ‘liberty’ was not included in the Articles, the original constitution. That seems like a key detail to my mind. It signifies the importance of Quakerism to Dickinson. It was freedom, not liberty, that was the core value to be defended. The argument Schwartz makes, in Beyond Liberty Alone, by broadening liberty to include responsibility is actually more resonant with the Quaker worldview of freedom. It is interesting that he comes to this understanding, despite his primary focus on Jefferson.

In the specific section on Dickinson, Schwartz writes (Liberty In America’s Founding Moment, Kindle Locations 2352-2355),

Is it everywhere assumed or is Dickinson hedging his bets and avoiding the question of government’s origin and the validity of the social contract? That seems possible especially given Dickinson’s appeal to the ideas of philosopher David Hume in the above citation. Hume was a critic of Lockean natural rights theory and argued that Locke’s natural rights arguments were as much a political ideology as the divine right theory that justified kingship.

This is where knowing Dickinson’s Quaker background would have offered insight. Dickinson didn’t need Hume’s writings to be critical of natural rights. Quaker tradition itself was based on a mistrust of natural rights, and so this probably is the more fundamental influence. Hume’s ideas simply corresponded with the worldview Dickinson was raised in. Also, Hume’s criticisms of natural rights allowed for a non-religious formulation of that aspect of the Quaker tradition. Quakers had no use of Lockean social contracts and so that wasn’t an issue for Dickinson. Quaker constitutionalism was based on the belief in a personal relationship to God, a divine spark that existed within (see a fuller discussion in my post The Radicalism of The Articles of Confederation, in which I note that the historian Joseph Ellis also seems unaware of the Quaker position). A constitution was, as Quaker-influenced Paine described, “a compact between God and man” (from a footnote to Observations on the Declaration of Rights).

Let me continue with some more of Schwartz commentary from the section on Dickinson (Kindle Locations 2369-2384):

The only time that Dickinson offers a justification of colonial rights is when he quotes the resolves of the Stamp Act Congress, which he had earlier drafted but which avoided the use of natural rights. Quoting the third resolve of the Stamp Act Congress, and referring to these resolves as the “American Bill of Rights,” this is as close as Dickinson gets to offering a philosophical basis of liberty.

III. “That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that No Tax‡ be imposed on them, but with their own consent, given personally, or by their representatives.”13

We have no way of knowing in these letters how Dickinson grounded “the essential freedom of a people” and “undoubted right of Englishmen.” Only on one occasion (Letter Seven) does Dickinson quote Locke: “If they have any right to tax us—then, whether our own money shall continue in our own pockets or not, depends no longer on us, but on them. ‘There is nothing which’ we ‘can call our own; or, to use the words of Mr. Locke—what property have’ we ‘in that, which another may, by right, take, when he pleases, to himself?’”14 This quote from Locke is apropos. Locke here is talking about the duty of people to support government with taxes. Locke makes clear in this passage that paying taxes must be with their consent, as defined by the vote of the majority. While Dickinson brings Locke’s authority to bear in supporting the idea that there should be “no taxation without consent,” he does not invoke Locke’s notions of social contract or natural rights.

At least at one point Dickinson seems to assume a very different source of colonial rights than his colleagues. Specifically, he assumes that the rights of the colonies were granted by Great Britain in exchange for the benefits that the colonies brought the mother country. Strikingly, Dickinson includes the right of property as a privilege conferred by Great Britain on the colonies, rather than an inherent right.

Schwartz struggles here to pinpoint exactly where Dickinson is coming from. He is able to discern bits and pieces from Dickinson’s words, but the motivating vision behind those words eludes him. Further on, Schwartz does show he realizes the importance of the religious angle, even though not specifically in the context of Quakerism (Kindle Locations 2390-2394):

It is striking that the colonial right to property is here described not as a natural right, but as a “recompense” or payback from Great Britain to America for the benefits that accrued to the mother country. The colonies’ rights were the result of a trade or contract. No one arguing strictly from natural rights directly would ground the American right of property this way. Moreover, the religious overtones in Dickinson’s essays, though not frequent, are obvious here when he invokes scripture rather than Locke or reason to prove his point.

He then clarifies the importance of religion (Kindle Locations 2399-2405):

Quoting the New Testament, Dickinson appeals to freedom as a grant from God. The absence of natural rights language or at least a fully articulated rights theory in Dickinson would seem consistent with his ongoing commitment that the colonies remain part of Great Britain. Dickinson rejects any talk of the colonies as “independent states” which are part of a larger federated empire. “But if once we are separated from our mother country, what new form of government shall we adopt, or where shall we find another Britain to supply our loss? Torn from the body, to which we are united by religion, liberty, laws, affections, relation, language and commerce, we must bleed at every vein.”18 Dickinson, as is well known, would later refuse to sign the Declaration of Independence, believing in July 1776 that there was still some hope for reconciliation between the colonies and Great Britain.

Schwartz is touching upon so much here, but he can’t quite bring it together. The Quakerism piece is missing. All of this makes sense, though, when that Quaker piece is put into place. To the Quaker worldview, a constitution is a living agreement and expression of the Divine, a covenant of a collective people as a community. It is not a piece of paper or the words on them. To be separated from their mother country was quite the challenge to that worldview. The community needed to be redefined and the covenant needed to take new form.

Jane E. Calvert, in Quaker Constitutionalism and the Political Thought of John Dickinson, details what this means for Dickinson and how this differs from Jefferson (Kindle Locations 9708-9742):

For Dickinson, a polity must be and, in the case of America, was constituted otherwise than merely on paper. And his understanding of how man entered political society was largely the same as the way most Americans understood it, but with subtle differences in process and emphases. While most political thinkers of the day agreed that joining society, forming a union, was “primarily a matter of reason,”13 Dickinson believed that to unite was to obey a divine command, a “sacred law.”14 Like Locke, he held that society was first occasioned “by the command of our Creator.”15 God, said Dickinson, “designed men for society, because otherwise they cannot be happy.”16 But more than that, God “demands that we should seek for happiness in his way, and not our own,” which meant joining one another on specific terms and with a particular mode of engagement.17 Moreover, reason was not man’s primary impetus for joining; the “common sense of mankind,” Dickinson explained, merely “agrees.”18 This original constitution ordained by God was prior to and independent of any written documents codifying that union. “[T]hose corner stones of liberty,” he wrote, “were not obtained by a bill of rights, or any other records, and have not been made and cannot be preserved by them.”19 Rather, ten years before Jefferson wrote that “all men are endowed by their Creator with certain unalienable rights,” Dickinson asserted that “Rights are created in us by the decrees of Providence.”20

On the surface, Jefferson and Dickinson seem to agree, but as we have seen from our earlier discussion, Quaker thinkers did not usually speak of natural rights. While many thinkers of all persuasions, including Penn and Dickinson on occasion, conflated the languages of rights and referred interchangeably to natural or God-given rights, for Quakers, who more often spoke in terms of providence, there was ultimately a difference. If the divine and the natural were the same (an idea many Quakers rejected outright), they were much more closely related in Quaker thought than in Jefferson’s, with nature not overshadowing divinity. Dickinson clearly did not subscribe to the deist theology of other Founders. He explained that “[w]e claim [rights] from a higher source, from the King of kings, and Lord of all the earth…They are born within us; exist with us; and cannot be taken from us by any human power, without taking our lives.”21 Because they came from God rather than nature, man, or his history of established institutions, “rights must be preserved by soundness of sense and honesty of heart. Compared with these, what are a bill of rights, or any characters drawn upon parchment, those frail rememberances?”22 If this seems to us an overly fine distinction, that Dickinson made it was in keeping with Quaker thinking about rights. Such subtleties caused contemporary and historical criticism that his work consisted of “fine-spun theories and hair-splitting distinctions”23 and that he had the “Vice of Refining too much.”24 But if his thought has been misunderstood, it is because his critics did not care to understand these distinctions or the complex theories and arrangement to which they gave rise. It is mainly this difference between the natural or human and the divine that distinguished the Quaker theory of government and their process of legal discernment from others.

From my perspective, this additional insight strengthens the case Schwartz is making.

The Quakers, more than any other early Americans, embodied the balance between rights and responsibilities, between freedom and obligation. Schwartz wants to place the emphasis on the social reality. Quaker constitutionalism could have given him an alternative view to throw light on what it means to have rights in a community. Also, to return to Paine, the pamphlet “Agrarian Justice” could have given Schwartz a stronger foundation in American tradition for a progressive understanding of the commons.

When put together, all of these pieces form a greater vision of what America has been and could be. Schwartz’s writings are part of a larger conversation. No single voice can capture every aspect and nuance. What matters is the broadening of debate. It is an exciting time to add one’s voice to the chorus, even if at times it sounds more like cacophany, something the founders could sympathize with.

The historical context is important for a deeper understanding. Even so, any given fact and detail isn’t what matters most. Studying such things should serve the purpose of helping to see what was hidden, to remember what has been forgotten, to revive the senses that became numb. The disappearance of the commons is a profound loss. It isn’t just the loss of public land and their resources. As Schwartz makes clear, it is a loss of shared identity and meaning, loss of a unifying set of values. We are made small as our vision of rights narrows. We are made weaker.

When we lose the knowledge of what we lost, we lose the knowledge that something is lost. That is not a good place for a people to find themselves. It is to be lost without a map. Fortunately, those who came before us left markers for the path we are on and the paths we might take.

The Riddle of Culture

Sam Harris has a fairly good article about the gun control debate, The Riddle of the Gun.

My own position is more or less similar. Like Harris and like most Americans, I’m for the right to own guns within reasonable limits such as basic gun regulation. I suspect that most liberals would agree with this, even if this gets distorted because liberals end up reacting to the right-wing extremists.

Harris apparently doesn’t see it this way. He thinks that the so-called liberal media represents the average liberal, but my sense is that the ‘liberal’ elite might be as far away from the average liberal as they are from those on the right. I think the position Harris is taking, not unlike that of Jonathan Haidt, is motivated by a desire to create an appearance of credibility by criticizing his fellow liberals. The problem, though, is that those like Harris and Haidt are just more liberal elites, maybe no less clueless than any other liberal elite when it comes to understanding most liberals.

The culture wars are the central problem to my mind, although not because of the wars part but because of the culture part. I’d rather have a culture discussion than a culture war. It would be much more fruitful. This is the other challenge that Harris fails to meet. Despite my mostly agreeing, I want more from an analysis than what Harris offers. His article lacks subtler nuance and depth of insight.

The issue of culture is something that I’ve been obsessing over the past few years. In an earlier post about gun regulation, I did touch upon the deeper problems involved… but my thoughts have continued to develop such as considering moreso the importance of regional data on violence. The key to connect it all is culture.

Harris sticks to the standard narrative. He wants to bring the discussion more to the data itself with which I agree. However, there is a lot of relevant data that rarely gets discussed and certainly Harris doesn’t venture very far into the vast array of interesting data.

Most of the time, the type of data discussed is limited to generalized national data. Sometimes the distinction of rural and urban violent rates will be brought up, but usually just to reinforce stereotypes about urban blacks. This data, however, is complicated by other data.

It is true that urban areas on average have more violent crime, including with guns, than rural areas on average. What isn’t true is that this is equal for all regions. In fact, the  opposite is true in the South. The rural South has more violent crime than the urban South. The rural South has more violent crime than the urban North, more crime than the rural North, and actually more violent crime than any other region in the country.

Two other factors relate to types of violence. One factor is that you’re not necessarily less likely to experience violence in rural areas. Rather, you’re more likely to experience violence from someone you know instead of from a stranger (this includes a high rate of ‘accidental’ deaths and a high rate of self-inflicted violence, i.e., suicides). Another factor is that there typically is an inverse relationship between homicide rates and suicide rates, but in the rural South both are high.

All of this is quite significant considering that gun regulation is the weakest in the South and gun ownership is the highest in the South. This data punctures the argument that higher rates of gun ownership have no correlation to higher rates of gun violence. Even so, the correlation may not be direct. My own view is that they both are connected through culture.

So, I’m not blaming guns in and of themselves. What I am blaming (as others have noted) is the gun culture that is prevalent in America, specifically the romanticizing of violence and the pushing of military-style tactical gear. More importantly, I’m laying responsibility upon the culture of the rural South which is a culture of honor that has a long history of weak government and vigilante justice (think of the Hatfield-McCoy feud). This is seen in exaggerated form on the borderland of Kentucky and Tennessee where, following the Civil War, the violence was ten times the national average.

Interestingly, it isn’t just those on the left making this argument. Thomas Sowell, the popular black conservative, wrote an essay about culture, “Black Rednecks and White Liberals”. I haven’t read that essay, but I’ve read a number of reviews about it and aspects of it seem to hit upon an element of truth. Is it mere coincidence that black culture also came from the South?

This isn’t about blaming a region for all problems. My impulse is to seek understanding. What specifically might be the common factor between rural white culture from the South and urban black culture from the South? It’s not just an issue of the South as if a direction on a compass magically conveys an essence upon people. It’s certainly not to make a blanket judgment. What I want is to get at the root cause(s), the fundamental motivation behind diverse behaviors.

I’m less interested in knowing what motivates people to want to own guns and more interest in what motivates people to be prone to using guns and to being violent. Why is it the exact demographics that are the most violent are also the demographics most antagonistic toward the government? I don’t know about the urban black culture in the North, but I do know the rural white culture in the South believes that people should take care of their own problems. Similarly, what is the correlation to the Republican Party in terms of how the rates of violence consistently increase after a Republican administration takes office?

Of course, these two specific demographics have some good reasons for feeling antagonistic toward authority. Blacks have been one of the most oppressed groups in American history. Poor whites in the rural South haven’t experienced much privilege either. These are all people that have had to fight for their own way in the world, rarely with any help from those in authority. The problem for the gun regulation issue is that such demographics become pawns for the fight between elites.

I don’t think cultures are inevitably dysfunctional on their own terms, although sometimes that might be the case. This seeming dysfunction is a response to larger dysfunctions in society. The Scots-Irish are a good example of this. They have been pawns in America and in the past they were pawns in Britain. Their culture became so prone to violence because they found themselves amidst violence. In the victimization cycle, violence endlessly begets violence.

I don’t want to scapegoat this group or that. From my perspective, that would be avoiding the real issues that are much more profound and pervasive. The individual cultures manifest particular symptoms, but dealing with the symptoms won’t help in the long-term. There are different levels of culture. How do we dig down to the root level?