Some years ago, I wrote a post on how the idea of the evolutionary state of nature as a historical reality was crucial for the American revolutionary founders. In a comment on that post, "JG" wrote: "I don't understand the impulse of scholars to take the social contract interpretation of the American founding so deadly seriously. The problem with it is not just that there was no historical state of nature, but that there was no period during the founding that any 'return' to that state took place. The Declaration itself was a political act, written and signed by representatives of governments of 'the thirteen united States' 'in Congress' assembled. States sending delegates to a Congress: This can hardly count as a return to the state of nature. Regardless of what rhetoric was employed, the actual events of the founding simply do not bear out the myth."
This was a good objection to what I had written, but I didn't respond to it at the time. Here's my response now.
I would ask JG: How was it possible for those who wrote and signed the Declaration of Independence to believe that they had the political authority to do what they did?
JG answers by quoting the first line of the last paragraph of the Declaration: "We, therefore, the Representatives of the united States of America, in General Congress, Assembled." He explains: "States sending delegates to a Congress . . . can hardly count as a return to the state of nature."
But that begs the question at issue here. From where did these thirteen new state governments and the General Congress derive their political authority? In that last paragraph of the Declaration, the signers claimed to act "by Authority of the good People of these Colonies." But how was it possible for the people of the American colonies to institute these new governments if those people were under the imperial political authority of the British Government?
The only good answer--the answer given by the American revolutionaries to justify what they were doing--was that the American people had entered a state of nature in 1774, and in that state of nature they had a natural right "to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." They did that by establishing new governments in the thirteen colonies and by establishing the First and Second Continental Congresses to decide on whether they should "dissolve the political bands which have connected them" with Great Britain.
The evidence for this is in the debates in and around the two Continental Congresses from the convening of the First Continental Congress on September 6, 1774, to the declaration of independence in the Second Continental Congress on July 2, 1776. The crucial question was whether the colonies had been thrown into a state of nature: the Revolutionaries said yes; the Loyalists said no. If the answer was yes, the American people had the natural right to declare their independence from Great Britain and establish new governments. If the answer was no, the people had no authority to do this.
This debate is well covered by Mark Somos in his book American States of Nature: The Origins of Independence, 1761-1775 (Oxford University Press, 2019), pages 274-313.
After the Boston Tea Party of December 1773, the British Parliament between March and June of 1774 passed a series of laws to punish Boston that were called the Coercive Acts in Britain and the Intolerable Acts among American revolutionaries. In response to this and other events, fifty-six representatives of the colonies gathered in Philadelphia for the First Continental Congress in September of 1774. By then, it had become common for the revolutionaries to say that Great Britain's despotic acts had reduced the colonies to a state of nature. For example, William Tudor said this in a letter to John Adams on September 3, 1774, describing the situation for Massachusetts: "The People are eager to have Recourse to the first Charter, or adopt some new Mode of Government. Our last Charter is vacated and the Province reduced to a State of Nature. Can there ever be a more favourable Opportunity than the present for claiming, resuming, and maintaining the Rights of Mankind, for a thorough Discussion, Definition, and Confirmation of them. Great Britain, by her despotic Edicts, has forced Us to the Alternative of either becoming Slaves, or recurring to the Principles of Nature for Protection."
The First Continental Congress opened on September 5 in Philadelphia. The first substantive debate was on September 6. According to the notes of Adams and James Duane, the day began with a speech by Patrick Henry announcing that the government is dissolved, the colonies have reverted to a state of nature, and they must form a new government.
At about the same time, a letter found among Adams's papers was sent to the Boston Committee of Correspondence. The author wrote: "As I am of the Opinion, that the Subjects of the Massachusetts Bay are without a King, Governor, civil or military Officers; so the People are again left in a State of Nature. For if it be Fact that the King has broke his Coronation Oath, by clipping our Charter &c.; it must be Fact, that we are at Liberty to choose what way of Government we like best."
Loyalists in the First Continental Congress--like Joseph Galloway--wanted the thirteen colonies to remain in the British Empire, and they proposed plans for reconciling the colonists and the British. In arguing for this, they rejected the idea that the colonies had reverted to a state of nature, because they argued that the colonies were still under the rule of the British Government, and therefore the colonists had no right to establish new governments or declare their independence.
Thus, the debate between the American revolutionary patriots and the American Tory loyalists became a debate over the state of nature. Some of the Loyalists sketched Hobbes's account of the state of nature as a state of war and anarchy that Americans should want to avoid. The Patriots responded by sketching Locke's account of the state of nature as a social state that could be largely peaceful, even if it often tended to war. The Patriots argued that in the present state of nature, the colonists were already peacefully cooperating in the erection of provisional governments and congresses to replace British government.
Some of the Tories--both in America and in Great Britain--claimed that the revolutionaries were being self-contradictory by invoking both the natural rights in the state of nature and the rights of Englishmen. You can appeal to one or the other, they argued, but not both. The revolutionaries answered by saying that this is a false dichotomy, because natural laws and civil laws can, and should be, compatible: the civil laws should secure the natural rights of man.
The First Continental Congress adjourned on October 26, 1774. Then, shortly after the Battles of Lexington and Concord, the Second Continental Congress was convened in Philadelphia on May 10, 1775. This Congress functioned as a de facto national government at the beginning of the Revolutionary War. On July 2, 1776, Congress adopted the Lee Resolution that declared American independence from Great Britain. Two days later, the Congress agreed to the Declaration of Independence. The Congress functioned as a provisional national government of the United States until March 1, 1781.
The Revolutionary Patriots won the intellectual debate with the Tory Loyalists over the state of nature, because they showed how Americans could return to the state of nature and then peacefully cooperate in instituting new governments to secure their natural rights.
But to do that they also had to win a revolutionary war fighting against the most powerful empire in the history of the world. In Locke's terms, they had to win the "Appeal to Heaven"--the appeal to the God of Battles as the final judge between a revolutionary people and a despotic government.
Arcenas does not consider the possibility that the Americans became receptive to Locke in the revolutionary period because his account of how people can enter and then leave the state of nature helped the Americans to explain what they were doing in the Revolution. The Americans were doing in their revolutionary practice what Locke had recommended in his political theory.
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