At the next convention of the American Political Science Association in San Francisco (August 31-September 3), I will be on a panel on Thomas West's new book--The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom. Many scholars of the American Founding have concluded that the founders' political thought was an amalgam of different, and even contradictory, traditions of thought, such as liberalism and republicanism. Against this "amalgam" thesis, West argues--persuasively, I think--that the founders largely agreed on one coherent understanding of politics--the political theory of natural rights. Their disagreements (as in the debates between the Hamiltonians and the Jeffersonians) were disagreements not about the end of government (securing natural rights) but about the best means for achieving this end.
Another recently published book--Randy Barnett's Our Republican Constitution--makes this same argument for the American founders as agreeing on the political theory of natural rights. West recognizes this, but he claims that "Barnett's libertarian reading is silent on the founders' concern with the people's moral character" (46, n. 10). For West, this "libertarian reading" of the founding is mistaken in ignoring how the founders' legally enforced morality and religion through the constitutions and laws of the states. But then, West sometimes contradicts himself and accepts a libertarian interpretation of the founding as seeing the purpose of politics being limited to securing individual freedom, so that morality and religion are shaped in families and the voluntary associations of private society rather than through coercive public legislation. I will elaborate this point in a future post.
In his explication of the founders' theory of natural rights, West agrees with Philip Hamburger (1993) in seeing that theory as based on five arguments. First, natural rights are identified as part of the natural liberty that human beings have in state of nature in the absence of government. This idea of the state of nature is fundamental. West says: "The state of nature is the basis of the founders' understanding of politics" (409). And in that state of nature, "self-ownership is the original natural right" (396). Except for children, who are under the temporary natural authority of their parents, all individuals have equal liberty in that no one is under the rule of anyone else without their consent. But these natural rights in the state of nature without government do not include the acquired rights that exist only as created by government.
Second, natural rights are constrained by natural law. In the state of nature, human beings can use reason to discover natural law. So, for example, they can reason that since all human beings seek to enjoy their natural liberty, they will resist and retaliate against those who infringe on their liberty; and therefore, human beings can conclude that the best way to preserve their life and liberty is to respect the equal liberty of others by not harming them. They can thus see the wisdom in the Golden Rule--do unto others as you would have them do unto you--or the Silver Rule--don't do to others what you would not want them to do to you. They will enforce these rules of natural law as customary norms for society. But even if many, or even most, human beings can see the wisdom in this natural law, many will not understand it or observe it, and their aggressive attacks on others will make the natural rights insecure in the state of nature where there is no government.
Third, to overcome this insecurity of natural rights in the state of nature, human beings consent to establish governments to secure their natural rights through formal laws and institutions for making, enforcing, and adjudicating those laws. In submitting to the protection of government, people must give up some of their natural liberty to government so that it can protect the remainder.
Fourth, although the civil law of government is not the same as the natural law in the state of nature, that civil law must approximate the natural law in securing natural rights. So, for example, the civil laws of property will be highly variable. But if those governmental laws of property do not adequately protect the natural rights of property, people have the natural right to overthrow the government, return to the state of nature without government, and establish a new government that they judge will better secure their natural rights.
Fifth, as long as the civil laws approximate the natural law, there is no necessary inconsistency between civil law and natural law. So, for example, the United States Constitution is civil law and not natural law, but constitutional law can be judged by the standard of natural law as to how well it secures natural rights.
Affirming the reality of the state of nature is the first step in this line of reasoning, and it is not enough, according to West, to see the state of nature as purely "hypothetical" or "fictional," because it must be seen as really existing in human history, past and present (96-111). Whenever human beings are without a government or common superior over them, they are in the state of nature. In the prehistoric past, all of our human ancestors lived in foraging bands without government, and thus they were in the state of nature. As I have argued in other posts (here, here, here), the Darwinian account of the evolutionary state of nature largely confirms the reality of this Lockean state of nature among hunter-gatherers.
The state of nature is not confined to the prehistoric past. Since there is no one world government, the state of nature exists between governments. And even within societies with governments, individuals can revert to a state of nature when they find themselves threatened by aggressors, and there is no chance to appeal to governmental protection. Also, when people revolt against a government, they put themselves back into a state of nature. So when the Americans declared themselves independent of Great Britain, they were momentarily in a state of nature, until they had consented to new governments.
If the political theory of natural rights is correct, natural rights are those rights that human beings have claimed in the state of nature. I have argued that Darwinian studies of life in the evolutionary state of nature of foraging bands does show that foragers claim equal rights to life, liberty, and property.
But what about the claim to religious liberty as a natural right? As West and Vincent Phillip Munoz (2015) have shown, it was common in the first American state constitutions to make this claim. So, for example, the North Carolina Constitution of 1776 declared: "That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own conscience."
But do we see foragers in an evolutionary state of nature making such a claim to religious freedom?
Hunter-gatherers do not typically show a religion of worshipping "Almighty God." The monotheistic religions of worshipping a Creator God who enforces a moral law for human beings and intervenes in human affairs for their salvation did not appear in human history until the "Axial Age"--the six centuries before Christ--when Hinduism, Buddhism, Zoroastrianism, Judaism, and Christianity appeared for the first time.
The earliest form of religious belief is animism, which has been found among all hunter-gatherers, and which was probably the first form of religious experience for our earliest human ancestors. In animism, there are no real gods, but there are various kinds of invisible spirits with limited powers that permeate all of nature--plants, animals, and even physical phenomena such as thunderstorms. These spirits influence human life. But they do not enforce any moral law for human beings (Peoples, Duda, and Marlowe 2016; Sanderson 2014, 339-53).
The first professional religious practitioners were shamans, who have been found in almost all foraging bands, and who continue to appear in some form in almost every society. Shamans are believed to have the power to transform themselves through ecstatic trances to communicate with invisible spirits to solve problems--most commonly through healing and divination. Successful shamans provide the service to their customers of interacting with the invisible forces that control unpredictable important outcomes--such as recovering from illness, success in hunting, communicating with the dead, and protecting people from evil spirits and malevolent magic (Eliade 2004; Singh 2017).
After the move from foraging bands to agricultural settlements, and the transition to large-scale chiefdoms and states, "high gods" appear for the first time--gods who are more active and powerful than the spirits of animism. First, polytheistic religions have many specialized high gods who are much like human beings but more powerful. Then, in the Axial Age, the monotheistic religions teach that there is one Creator God who transcends the world He created, and who enforces a moral law for human beings.
Evolutionary psychologists have surveyed the evidence that these religions of High Gods or Big Gods arose by cultural evolution in large-scale cities and states to solve collective action problems by persuading people that the social norms of cooperation will be enforced by divine rewards and punishments--perhaps even eternal bliss in Heaven and eternal punishment in Hell. I have written about this in a previous post.
Evolutionary psychologists, beginning with Darwin himself, have explained this evolution of religious beliefs and practices as a product of both natural evolution and cultural evolution. By nature, human beings have the evolved propensity for "mind-reading"--for imagining that their are many intentional agents in the world who act purposefully according to their beliefs and desires.--because it is an evolutionary adaptation for successfully navigating through a world of intentional agents, both human and nonhuman. This capacity for detecting intentional agents can easily become so hyperactive that human beings imagine the existence of invisible supernatural agents. Thus, religion can be explained as an evolutionary manifestation of a "hyperactive agency detection device" in the human brain, which I have written about in earlier posts (here).
That religious belief really is an evolutionary adaptation and not just an indirect by-product of some truly adaptive function of the brain is suggested by the evidence that religion promotes health and reproductive success. Devout religious believers tend to have better physical and mental health and longer lives than those who lack such religious devotion. Religiosity also increases fertility, and the most devout religious believers (like Orthodox Jews) tend to have the highest average number of offspring. Atheists tend to have the lowest rates of fertility (Sanderson 2014, 344-50).
This suggests that religion is rooted in evolved human nature, that the desire for religious understanding should be included on the list of 20 natural desires, and that atheists who advocate the abolition of religion are foolish. This explains why evolutionary psychologists like Leda Cosmides disagree with the "new atheists" like Richard Dawkins, as I indicated in a previous post.
But let's turn back to my earlier question: if there is a natural desire for religious belief in the evolutionary state of nature, did our foraging ancestors express that as a natural claim to religious freedom? The animism and shamanism that have dominated the religious life of foragers seem to have arisen voluntarily through the competition of religious practitioners for customers, and there is no priestly or governmental bureaucracy for coercively enforcing belief.
The monotheistic religions that have arisen over the past few thousand years have often used coercive force to punish heretics and infidels. But there have also been periods in which monotheistic believers have advocated religious liberty--such as New Testament Christianity during its first 300 years. Christian advocates of religious toleration and liberty like Roger Williams have defended this as a revival of the New Testament teaching, which might also be seen as a revival of the religious liberty enjoyed by foragers in the state of nature. The liberalism of religious liberty and toleration could then be understood as a return both to original New Testament Christianity and to the evolutionary state of nature. (I have written about this here.)
REFERENCES
Barnett, Randy E. 2016. Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York: Broadside Books, 2016).
Eliade, Mircea. 2004. Shamanism: Archaic Techniques of Ecstasy. 2nd paperback edition. Princeton, NJ: Princeton University Press.
Hamburger, Philip A. 1993. "Natural Rights, Natural Law, and American Constitutions." Yale Law Journal 102: 907-60.
Munoz, Phillip Vincent. 2015. "Church and State in the Founding-Era State Constitutions." American Political Thought 4: 1-38.
Peoples, Hervey C., Pavel Duda, and Frank W. Marlowe. 2016. "Hunter-Gatherers and the Origins of Religion." Human Nature 27:261-82. doi10.1007/s12110-016-9260-0
Sanderson, Stephen K. 2014. Human Nature and the Evolution of Society. Boulder, CO: Westview Press.
Singh, Manvir. 2017. "The Cultural Evolution of Shamanism." Behavioral and Brain Sciences, forthcoming. doi.org/10.1017/50140525X17001893
West, Thomas G. 2017. The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom. Cambridge, UK: Cambridge University Press.
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