Smuggling as a Natural Right to Evade Trump's Tariffs

THE NATURAL RIGHT TO FREE TRADE--AND TO SMUGGLING

I have argued that the desire for trade--or what Adam Smith called "the propensity to truck, barter, and exchange"--arose early in human evolution.  I have also argued that that evolved natural desire for trade supports a natural right to free trade, and therefore any despotic interference with free trade will provoke resistance from those who want to trade.  This led me to predict--about six weeks ago--that Trump's despotic tariffs would move people to evade those tariffs through smuggling.  Now there's a good article in the New York Times confirming that prediction.

When a good is imported into the U.S., the importer must report to the U.S. customs agency the identity of the good, its dollar value, and its country of origin.  The tariff charge on that good will depend upon those three factors.  So, for example, if the tariff rate for a plastic toy from China is 50%, and if the declared value of that toy is $10, then the tariff due is $5.

Consequently, there are at least four ways of evading this tariff.  The importer can avoid the tariff completely by sneaking the imported good into the U.S. without notifying the customs agents.  Or the importer can give the customs agents false information about the identity of the good, its declared value, or its country of origin that will result in a lower tariff than what the law requires.

Customs agents have the power to inspect shipping containers to see if importers are being dishonest in their reporting of what they are importing.  But since there are only 26,000 U.S. customs agents, and the number of containers entering the Port of Los Angeles per day is about 27,400, it is impossible for those agents to inspect more than a small proportion of those containers; and therefore smuggling by dishonest importers is easy.

One of the most common ways of dodging Trump's tariffs over the past few months has been what is called "transshipping."  For example, a U.S. importer pays a special fee to a Chinese shipping company that moves Chinese goods from China to Vietnam and then ships those goods to the U.S., so that the importer can identify the imported good as coming from Vietnam, which means a lower tariff than the tariff on Chinese goods.  This illustrates how despotically unfair tariffs create huge economic incentives for smuggling.

I call Trump's tariffs despotic because they arise from his personal whims in exercising his arbitrary absolute power without any deliberative process in Congress for deciding whether such tariffs are fair and reasonable.

"ENLIGHTENED STATESMEN WILL NOT ALWAYS BE AT THE HELM"

Writing at the Law & Liberty website, Erik Matson ("No Tariffs Without Representation," March 19, 2025) has surveyed the history of how Congress has delegated its constitutional power to levy tariffs to the President, and how Trump has twisted that power to serve his despotic dominance of global trade.

In the Declaration of Independence, the list of grievances against Great Britain included denunciation of the King and Parliament "for cutting off our trade with all parts of the world."  Later, in the Constitution, the Founders entrusted Congress with the power over international trade by giving Congress the power "to lay and collect taxes, duties, imposts and excises" and the power "to regulate commerce with foreign nations" (Article I, section 8, clauses 1 & 3).

The Founders feared, however, that this power over foreign trade would be used by factional groups to promote protectionist policies that would advance their selfish interests contrary to the public interest of the community.  In Federalist Number 10, James Madison warned: "Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good."  Madison thought: "It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good.  Enlightened statesmen will not always be at the helm."  Donald Trump's presidency confirms this warning.

In 1930, the Congress enacted the protectionist Smoot-Hawley Tariff Act, which raised average U.S. tariffs to almost 60%.  Other countries around the world retaliated with high tariffs of their own.  As a result of this global trade war, worldwide commerce fell below its 1929 level over the next three years, which created the Great Depression.

Once the folly of the Smoot-Hawley Tariff became clear, the Congress in 1934 began to delegate its tariff powers to the Executive Branch with the Reciprocal Trade Agreements Act (RTAA), which allowed the president to reduce tariff rates by up to 50% as long as there were comparable reductions by other nations.  The RTAA had to be reauthorized by Congress every three years.  Allowing the president to bypass the Congress in reducing tariffs was seen as a way of escaping the problem of factionalism in trade policy, where lobbyists for particular interest groups demand protectionist tariffs from Congress that create harmful trade wars.

As Erik Matson has indicated, the RTAA and later trade legislation along with international trade agreements after World War II have allowed presidents who understood the wisdom of free trade to promote the liberalization of global trade.  But that ended in 2016 with the election of a president for whom "tariff" was a "beautiful word."

Trump has exploited the vague language in some of the international trade laws that allow the president to increase tariffs in response to "national security" threats (the Trade Expansion Act of 1962), cases of "unfair trade practice" (Trade Act of 1974), or "unusual and extraordinary" threats in an "emergency" (the International Emergency Economic Powers Act of 1977).  Trump's advisors have told him that he can impose an arbitrary protectionism based on his personal whims of the moment by pretending that this is justified by concerns for "national security" or "fair trade."

NO TARIFFS WITHOUT REPRESENTATION

Tariffs are taxes.  And so just as the American revolutionaries demanded "no taxation without representation," Americans today can demand "no tariffs without representation."  That's why the Constitution gives Congress--the body that is most representative of the people--the power to levy taxes and tariffs.

The problem is that Congress has gone too far in delegating its power over tariffs to the president.  There are legislative proposals in Congress now that would say that the president cannot raise tariffs without getting explicit congressional approval.

Unfortunately, as long as the Congress is controlled by Republicans who slavishly obey Trump, we cannot expect that the Congress will pass this kind of legislation.

Of course, we have seen that from day to day, if not from hour to hour, Trump changes his mind about his tariffs.  The Financial Times has called this his TACO trade policy--"Trump Always Chickens Out."   So we can hope that he finally decides that his tariffs are not beautiful but boring.

In the meantime, let's Make American Smuggling Great Again.

The Chimpanzee Politics of Joe Biden's Betrayal of America

Like many people I have been trying to understand why and how the Democratic Party threw the presidential election of 2024 to Donald Trump.  I now think the answer to that question will come from reading two books--Jake Tapper and Alex Thompson's Original Sin: President Biden's Decline, It's Cover-Up, and His Disastrous Choice to Run Again and Frans de Waal's Chimpanzee Politics.  

When Joe Biden announced in 2023 that he would run for a second term, most American voters thought he was too old to serve out a second term.  He was already the oldest man to be President of the United States, and by the end of a second term, he would have been 86 years old.  Moreover, throughout 2023 and 2024, the voters saw his drastic physical and cognitive decline.  At the same time, after inflation peaked at 9.1% in the summer of 2022, the highest in 40 years, many voters thought Biden's economic policies had failed, and they continued to believe that even when inflation rates came down slightly by 2024.  Consequently, by early 2024, the polls indicated that Biden was going to lose to Trump.  But it was also clear, that most voters were unhappy with the choice between Trump and Biden, and that if the Democrats had nominated a moderate Democrat not identified with Biden and his economic policies, the Democrats would have won because Trump was not the first choice for the majority of voters.

So why did the Democrats allow Biden to run for a second term?  Why did they not organize an open presidential primary to identify a good alternative to both Biden and Trump?  Why did they wait until the end of July in 2024 to force Biden to withdraw from the race?  And why did they then allow Kamala Harris to become the nominee, even though she was even more unpopular than Biden, and she ran as a proponent of "Bidenomics" despite the unpopularity of Biden's inflation?

The answer is that it was all chimpanzee politics.  Once Joe Biden and Jill Biden had won political dominance as the alpha male and alpha female ("First Lady"), they didn't want to give it up, even though they had lost their minimum winning coalition by 2024.  Other Democrat politicians who could have defeated Trump refused to enter the race because they thought they could not risk being disloyal to the Bidens.  Even after Harris replaced Biden as the nominee, she refused to show disloyalty by renouncing Biden's unpopular policies (particularly on inflation).  This allowed Trump to win even though he was not the first choice of the voters.  Now he's the dominant chimp, who proudly announces his dictatorial rule: "I run the country and the world."

I have written many posts about the chimpanzee politics of dominance hierarchies.  People often assume that among animals the dominance hierarchy must be determined by fighting in which the biggest and strongest animal wins and becomes the alpha.  But primatologists like de Waal and Jane Goodall have shown that this is false.  Among chimpanzees and other animals, physical strength is only one of many traits required for becoming the dominant alpha leader.  To become the alpha, one needs supporters.  One must form coalitions with partners, and to win the support of the females and the children, one needs to act as a mediator in intervening in disputes to enforce peace and unity either through impartial intervention or by supporting the weaker party against the stronger.  One must know how to reconcile after disputes.  And one must know how to achieve mutual cooperation through reciprocity by returning favors and by punishing those who are not cooperative.

Males tend to reach their peak in the hierarchy between age twenty and twenty-six years.  Goodall explains: "Factors other than age, which determine the position of a male in the dominance hierarchy include physical fitness, aggressiveness, skill at fighting, ability to form coalitions, intelligence, and a number of personality factors such as boldness and determination. . . . At Gombe some males strive with much energy to better their social status over a period of years; others work hard for a short while, but give up if they encounter a serious setback; a few seem remarkably unconcerned about their social rank."

Chimp male canine teeth are powerful weapons for killing.  But remarkably, chimp fighting almost never leads to killing, except when male chimps are attacking chimps outside their community.  Fighting for dominance within a community is carried out through the bluffing of spectacular, charging displays of intimidation.

Goodall and De Waal have seen among chimpanzees what some political scientists have called government by the "minimal winning coalition."  No one individual can rule without supporters, and so there must always be a ruling coalition supporting the leader, who must satisfy his supporters.  A dictatorship is rule by a small coalition.  Democracy is rule by a large coalition.  The leader must serve the interests of his coalition, and so the larger the coalition, the closer this approximates to serving the common interests of society.

One can also see among chimpanzees confirmation for Machiavelli's political psychology of the one, the few, and the many.  In every society, there are a few people who are ambitious to rule over others, and out of these ambitious few, one individual will emerge as the dominant ruler over all.  Most people do not want to rule, and they will defer to the rule of the few, but the many do not want to be exploited by those ruling few.  To avoid an exploitative despotic rule, there needs to be a balance between the one, the few, and the many.  The hope of the American founders--perhaps most clearly expressed by John Adams--was that American government would separate and balance these three powers: 

Adams believed that human nature is such that every human society must decide the question, Who is the first man?  "It is a question that must be decided, in every species of gregarious animals, as well as men."  Even in the most civilized societies, "the same nature remains," and the contest for first rank must be decided, whether by peaceful or by violent rivalry.  The balance of powers answers this question by providing for a supreme executive office to be filled by one person with sufficient ambition to strive for it, while still checking the power of this executive officer with the powers of other offices--the legislative and judicial offices--filled by the ambitious few, with the ultimate check on power coming from the great multitude of people who defer to their rulers while also resisting exploitative dominance by their rulers.

Consider how this explains the history of American presidential politics over the past two years.  Joe Biden has been driven by a life-long ambition to be President of the United States.  In 1972, he was elected Senator from Delaware at age 30, which is the minimum age for a Senator set by the Constitution.  He failed in his first two runs for the presidency in 1988 and 2008.  But he did become Vice-President in 2008 after being selected by Barack Obama as his running mate.  In 2016, Biden wanted to run again for the presidency, but Obama supported Hillary Clinton, which created a deep resentment in Biden.  He ran again in 2020--without Obama's support in the primaries--and this time he finally won in defeating Trump.

Since his inauguration as President in 2021--the oldest president at 79--fulfilled a lifetime of striving to be Number One, it is not surprising that in the summer of 2023, he announced he would run for reelection, despite the fact that most Americans saw the physical and mental decline that came with his advanced age.  It is hard for a man like Biden to give up the power and fame of being President of the United States.  As Tapper and Thompson report, four-time California Governor Jerry Brown understood why Biden stubbornly refused to drop out of the race for a second term: "Politics is addictive.  It's exciting.  It's kind of psychic cocaine.  People just don't want to just go back to their former boring lives" (50).

But then why didn't Biden follow the example of Lyndon Johnson in 1968?  Johnson was elected to his first full term in a landslide victory in 1964, after becoming president in the wake of JFK's assassination.  In 1968, Johnson chose to run for reelection even though he was very unpopular because of his prosecution of the Vietnam War.  It was widely assumed that a sitting president could not be denied renomination by his party for a second term if he ran.  But after running in some early primaries, and being challenged by the candidacies of Senators Eugene McCarthy and Robert Kennedy--part of a "Dump Johnson" movement--Johnson announced on March 31, 1968, that he would no longer run for the nomination.  This allowed his Vice President--Hubert Humphrey--to run as the Democrat candidate, although he was defeated by Richard Nixon in the election.

LBJ was similar to Biden in many ways.  Like Biden, LBJ had a life-long ambition to achieve political dominance.  In 1937, at age 29, he was elected as a Democrat to the U.S. House of Representatives.  In 1948, was elected to the U.S. Senate.  In 1954, he became Senate Majority Leader.  In 1960, he ran for President.  But when Kennedy won the party's nomination, he selected Johnson as his Vice-President.  Becoming President fulfilled his driving ambition for power.  And so he did not want to give up that power in 1968, even though he was unpopular.  But unlike Biden, he ended his campaign early--almost four months earlier than did Biden.  What explains this difference?

One difference is that Biden was surrounded by a small inner circle of advisors that controlled the information he received and that insulated him from public view.  The most important member of this inner circle was Jill Biden who protected Biden from bad news (such as unfavorable polls) and thus protected her own power as First Lady.  The rest of the inner circle was known in the White House as "the Politburo": long-time Biden aides Mike Donilon, Steve Ricchetti, Ron Klain, and Bruce Reed.  These five people supported Biden's run for reelection because their powerful prominence in government depended on extending Biden's presidency.  David Axelrod saw "that Donilon was so blinded by his emotional attachment to Joe Biden--his fate and life inextricably bound up with the president's--that he just couldn't let go" (207).  As Democrat congressman Peter Aguilar observed, "folks like Ricchetti and Donilon--they're living the first line of their obituaries right now.  People don't give that up" (253).

Another difference from Johnson is that Biden did not face anything like the "Dump Johnson" movement--popular candidates challenging him in the presidential primaries.  Beginning as early as 2022, Congressman Dean Phillips, a member of the House Democratic leadership team, began warning that Biden's evident cognitive decline would make it impossible for him to communicate clearly to voters, and so the party would need to find someone else to run for president in 2024.  He suggested that the best candidates would be one of the Democrat governors in the Midwest--such as Illinois Governor J. B. Pritzker, Michigan Governor Gretchen Whitmer, and Pennsylvania Governor Josh Shapiro.  Phillips had tried to speak directly with Pritzker and Whitmer, but they refused to even take his calls.  Although he admitted that he was not the best candidate, Phillips announced his presidential campaign on October 27, 2023.  He said his aim was to force Biden into a debate, in which Biden would show that he lacked the cognitive ability to win another presidential campaign.  The Democratic Party obstructed Phillips' efforts.  He suspended his campaign after a bad showing on Super Tuesday (March 6, 2024), and he endorsed Joe Biden.

So, for two years, from the summer of 2022 to the summer of 2024, the elite politicians of the Democratic Party refused to challenge Biden's decision to run for a second term because having loyally supported him in 2020, they were afraid to show disloyalty to Biden as their party leader.  Thus, they lacked the political shrewdness of chimpanzees who understand that politics is all about shifting coalitions, so that the loyal supporters of the dominant chimp will withdraw their support as soon as he manifests any signs of weakness, and then a new coalition forms to support a new alpha male.

For example, when de Waal began studying the chimpanzees at the Arnhem Zoo in the Netherlands in 1975, he saw that Yeroen was dominant over the group, with the support of Luit and Nikkie.  The political hierarchy among chimps is indicated by a special form of greeting.  Chimpanzees show a submissive greeting that is a sequence of short panting grunts by the subordinate individual as he looks up at the superior individual, which is usually accompanied by a series of deep bobbing bows by the subordinate.  Sometimes the subordinate will stretch out a hand to the superior or kiss the superior's feet, neck, or chest.  The superior reacts to this by rising up and making his hair stand on end, so that he looks very large in contrast to the groveling subordinate.  The alpha male is the male who is "greeted" by the other males.  Generally, the alpha male is also "greeted" by the females and the children in a group.

The male on the left is dominant.  The male on the right is subordinate.  Although they are actually the same size, the dominant male makes himself look bigger.

In 1976, de Waal saw the first of two power take-overs, which he understood with the help of Machiavelli, and this is what became the central focus of his book Chimpanzee Politics.  In the spring of 1976, Luit stopped "greeting" Yeroen, which initiated months of tense conflict between them as they fought over which would be dominant.  Luit formed a coalition with Nikkie, so that Nikkie would help Luit against Yeroen. On June 21st, Yeroen bared his teeth for the first time, which is a sign of fear in chimps.  On September 1, Yeroen "greeted" Luit for the first time.  Luit began to take on the control role of the alpha male in mediating fights to restore peace in the group.  On October 31, Yeroen "greeted" Nikkie for the first time.  So, now, Luit was the alpha male, Nikkie was second in command, and Yeroen was ranked third.  But then, in the spring of 1977, Nikkie formed a coalition with Yeroen to challenge Luit, and by December of 1977, Luit was "greeting" Nikkie as his superior. Nikkie had become the alpha male, with Yeroen second in command. 

Congressman Phillips saw that there was a similar opportunity for a power take-over among Democratic politicians once Biden showed his vulnerability in 2023 and 2024. But it's hard to understand why ambitious Democratic politicians like Whitmer, Pritzker, Shapiro, and Newsom did not see that this was the time to betray their party leader and put together a new coalition to support a new person in the position of dominance.

It was not until Biden's disastrous debate with Trump on June 27, 2024, that everyone saw what Phillips and a few others had seen much earlier--that Biden's cognitive decline would make it impossible for him to be a competent campaigner for reelection.  Even then, however, it took three weeks for party leaders to persuade Biden to withdraw.  When that finally happened, they then allowed Kamala Harris to lock up her nomination in only two days of phone calls (July 21-22).  They refused to take seriously the suggestion of Obama and others that there should be a short "mini-primary" or an open convention that would allow a few candidates to compete for the nomination.

Strangely, as Harris campaigned she refused the advice of her campaign people to separate herself from Biden and the unpopular policies of the Biden administration (particularly in connection with inflation).  Tapper and Thompson report that in one meeting with her campaign staff, Harris asked: "If I were to really distinguish myself, how would that make me look?"  She then answered her own question: "Disloyal."

On October 8, Harris went on The View.  At one point in the interview, Sunny Hostin asked: "Well, if anything, would you have done something differently than President Biden during the past four years?"  Harris answered: "There is not a thing that comes to mind."  The Trump campaign people were happy to use this footage in a new Trump TV ad (298).

Because of her fear of being disloyal to Biden, she did not say what she should have said to distance herself from Biden and his unpopular policies: As a Vice-President, I have had to defend my boss.  But now I am running my own campaign for president, and I can say that Biden has made many mistakes--such as economic policies that promoted high inflation--and I pledge to avoid those mistakes.

Although Trump won the popular vote by over 2 million.  The election was actually very close.  If Harris had beat the margins of 1.44 percent in Michigan, 1.73 percent in Pennsylvania, and 0.87 percent in Wisconsin, she would have been elected president.  She could have done that by radically separating herself from Biden's policies.

Alternatively, since Harris began the campaign as even less popular than Biden, the Democratic Party could have won the presidential election by a large margin by selecting a moderate Democratic candidate--perhaps one of those Midwestern governors.

That did not happen because the Democratic leaders did not understand how to play the game of chimpanzee politics.

Will Trump's "Golden Age of America" Arise from Closing Its Borders to Foreign Goods and People?

Donald Trump announced in his Second Inaugural Address: "The golden age of America begins right now."  On March 9th, the White House announced that after only seven weeks of Trump's term, "The Golden Age of America Is Here."

According to Trump and his followers, America will enter its golden age by moving from an open society to a closed society--particularly, by closing its borders to foreign goods and people by erecting barriers to trade and immigration.  

But the historical evidence of the evolution of golden ages--their rise and fall--proves that this claim is false because golden ages arise when borders are open, and they fall when borders are closed.  The historical evidence for this is nicely surveyed in a new book--Johan Norberg's Peak Human: What We Can Learn from the Rise and Fall of Golden Ages (Atlantic Books, 2025).  This book extends the argument of Norberg's earlier book--Open: The Story of Human Progress (Atlantic Books, 2020).

By looking at the rise and fall of golden ages around the world over the past 3,000 years, Norberg shows that social orders have flourished--socially, economically, and politically--whenever they were open to trade, immigrants, and ideas; and they withered whenever they closed up.

For example, the Song dynasty in China (960-1279AD) became the richest economy in the world because the Song emperors promoted free trade (both domestic and international) and freedom of movement.  The law protected the property rights of peasants and allowed them to move around rather than being bound to the land of a lord.  Consequently, agricultural production more than doubled, which supported the growth of cities.  The crowded cities allowed for a free exchange of goods, services, and ideas.

This was ended when the Ming emperors took over in 1368.  Peasants were no longer free to move around, and they were forced to labor.  The emperors instituted a "sea ban" through a series of isolationist policies.  Private foreign trade was made punishable by death.  The construction of sea-worthy ships was banned.  As a result, the Chinese economy shrunk by about half from what it had been in the Song dynasty.

Ancient Athens confirms the same lesson that golden ages arise in open societies.  As I have argued in a previous post, by ancient standards, Athens was a liberal or open social order.  Private property rights were protected by law.  Tariffs were as low as 2%.  International trade was extensive.  Foreigners were welcomed.  Indeed, some of the richest people in Athens were immigrants.  Athens was so open to the exchange of ideas that it facilitated the emergence of philosophers such as Socrates, Plato, and Aristotle.  Judged by the standards of the Fraser Institute's Economic Freedom Index, Athens was on a level with the highest ranked modern economies such as Hong Kong and Singapore (Bergh and Lyttkens 2014).

This falls in line with what I have argued previously about the evolution of human progress through the Lockean Liberal Enlightenment and through a Lockean liberal open borders immigration policy.  In this way, cultural group selection favors the evolution of liberal open societies.

In denying all of this, Trump has initiated an experiment that will test whether setting up barriers to trade and immigration and moving to a closed society can really create a Golden Age for America.

REFERENCE

Bergh, Andreas. 2014. "Measuring Institutional Quality in Ancient Athens." Journal of Institutional Economics 10: 279-310.

Pope Leo XIV Will Not Endorse the Integralism of Pope Leo XIII

When Cardinal Robert Prevost chose Leo XIV as his papal name, he suggested that his papacy would advance some of the themes of Leo XII's papacy.  Those conservative Catholics who argue for Catholic Integralism might infer from this that Leo XIV will revive the Integralism that can be found in some of the encyclicals of Leo XIII.

The integralists argue that in any good social order, the government will coercively enforce belief in the doctrines of the Catholic Church as the one true religion.  Against this, I have claimed that since religious pluralism is natural to human beings, integralism's attempt to suppress religious pluralism contradicts human nature.  The evolutionary science of religious pluralism support's John Locke's liberal theology of Christianity--that since "everyone is orthodox to themselves," there is no set of universal doctrines binding on all Christians; and therefore, there is no orthodoxy strictly speaking that can be properly enforced by government.  For this reason, a Lockean liberal social order that secures religious liberty is the best regime for promoting the pluralistic pursuit of religious happiness.  It does this by creating a marketplace of religion in which churches compete for customers, and those churches that best satisfy the desire for religious experience increase their share of the market.

As far as I know, Prevost has never commented on Catholic Integralism.  But what I have learned about his life and work as a priest and a cardinal suggests to me that he would agree with me in rejecting Integralism and affirming Lockean religious toleration and religious liberty as securing the conditions for pursuing a religious life.  After all, Prevost grew up in Lockean liberal America, where a Catholic community in Chicago cultivated his faith, and where he could enter at age 14 a junior-seminary boarding school in Michigan run by the Augustinian order.  He then became an Augustinian missionary in Peru, later the head of the Augustinian order, a cardinal, and finally Pope.  In becoming the first American Pope, Prevost shows how America's liberal social order can allow for the flourishing of the Catholic Church without any Integralist enforcement of the Catholic faith.

Moreover, this is compatible with Prevost's respect for the papacy of Leo XIII because the encyclicals of Leo XIII that are often quoted as endorsing Integralism are ambiguous in ways that suggest that he was not fully embracing Integralism.  Integralists like to quote from Leo XIII's encyclical Immortale Dei in 1885, which is entitled "On the Christian Constitution of States," where he wrote that 

The State, constituted as it is, is clearly bound to act up to the manifold and weighty duties linking it to God, by the public profession of religion. . . . Since, then, no one is allowed to be remiss in the service due to God, and since the chief duty of all men is to cling to religion in both its reaching and practice--not such religion as they may have a preference for, but the religion which God enjoins, and which certain and most clear marks show to be the only true religion--it is a public crime to act as though there wee no God.  So, too, is it a sin for the State not to have care for religion as a something beyond its scope, or as of no practical benefit; or out of many forms of religion to adopt that one which chimes in with the fancy; for we are bound absolutely to worship God in that way which He has shown to be His will.  All who rule, therefore, would hold in honor the holy name of God, and one of their chief duties must be to favor religion, to protect it, to shield it under the credit and sanction of the laws" (par. 6).

He went on to say that in the Middle Ages, "there was once a time when States were governed by the philosophy of the Gospel," and "Church and State were happily united" (par. 21).  But then, in the sixteenth century, the Protestant Reformation, with its "deplorable passion for innovation," threw the Christian religion "into confusion" (par. 23).

This created violent conflicts over religion.  And so, to create peace, it was decided that there should be a separation of Church and State, and the State should "grant equal rights to every creed, so that public order may not be disturbed by any particular form of religious belief" (par. 25).

The Church has been ambivalent about this modern separation of Church and State.  On the one hand, the Church "deems it unlawful to place the various forms of divine worship on the same footing as the true religion."  On the other hand, the Church cannot rightly "condemn those rulers who, for the sake of securing some great good or of hindering some great evil, allow patiently custom or usage to be a kind of sanction for each king of religion having its place in the State" (par. 36).  

The Church must condemn as false the principle that all religions are equal, because the Church knows that the Catholic Church is the only true religion, which should be supported by the government.  But the Church must also recognize how the separation of Church and State secures the "great good" of religious peace and avoids the "great evil" of religious war.

Leo XIII expressed this same ambivalence in his encyclical Longinqua in 1895 on "Catholicism in the United States."  Speaking to American Catholics, he wrote:

. . . thanks are due to the equity of the laws which obtain in America and to the customs of the well-ordered Republic.  For the Church amongst you, unopposed by the Constitution and government of your nation, fettered by no hostile legislation, protected against violence by the common laws and the impartiality of the tribunals, is free to live and act without hindrance.  Yet, though all this is true, it would be very erroneous to draw the conclusion that in America is to sought the type of the most desirable status of the Church, or that it would be universally lawful or expedient for State and Church to be, as in America, dissevered and divorced.  The fact that Catholicity with you is in good condition, nay, is even enjoying a prosperous growth, is by all means to be attributed to the fecundity with which God has endowed His Church, in virtue of which unless men or circumstances interfere, she spontaneously expands and propagates herself; but she would bring forth more abundant fruits if, in addition to liberty, she enjoyed the favor of the laws and the patronage of the public authority (par. 6).

So while the Pope is grateful for the "prosperous growth" of Catholicism in America made possible by its protection of religious liberty, he must also say that "the most desirable status of the Church" would be for the American government to enforce Catholicism as the true religion.

This ambivalence of the Church about the Lockean separation of Church and State was finally overcome in 1965 when the Second Vatican Council issued the "Declaration on Religious Freedom" or Dignitatis Humanae, which endorsed the human right to religious liberty and thus embraced the Lockean argument for religious toleration as the necessary response to the irresolvable problem of religious pluralism.

The wisdom of that decision is now confirmed by the Church's choosing for Pope a man whose Catholic faith was nurtured by the religious liberty secured by America's Lockean liberal social order.

Pope Leo XIV. Has the Holy Spirit Chosen a Moderate Catholic and the First American Pope? And the First Pope Eligible to be President of the U.S.?

                                                                        Pope Leo XIV

The papal conclave has chosen Cardinal Robert Prevost to be the new pope.  He has chosen the name Leo XIV.  He shows two distinctive traits.  He's the first American pope in the entire history of the Catholic Church.  And he is socially and theologically moderate or centrist, in that he seems to be in the middle ground between the liberal or progressive Catholics and the conservative or traditionalist Catholics.  

This raises the question of whether the Holy Spirit wanted a moderate American Catholic to be the 267th pope in the apostolic succession that began with St. Peter receiving the keys of heaven from Jesus.  Or did the cardinals (at least two-thirds of them) decide without any guidance from the Holy Spirit that this would be a prudent political choice that would prevent a schism in the Church?

Prevost was born in Chicago on September 14, 1955.  That means that he is now 69 years old.  That in itself is remarkable because that means that he is relatively young by papal standards, and it's imaginable that he could be pope for 20 years or more.  Often the cardinals in a papal conclave are hesitant to choose a younger man for pope because they don't want the Church to be dominated for too long by one pope.  So in choosing Prevost, the cardinals (or the Holy Spirit?) might have decided that the Church needed to be under this kind of pope for a long time.

Although an American, Prevost has lived most of his life serving the Church in Peru and Rome.  In 2023, Pope Francis made Prevost a cardinal and then appointed him as Prefect of the Dicastery for Bishops, which made him the head of the office that vets bishop nominations from around the world.  This is one of the most important positions in the hierarchy of the Catholic Church, which put him in contact with Church leaders around the world.  Surely, Francis (or the Holy Spirit?) knew that this would make him a likely candidate for becoming the new pope.

That Pope Francis promoted Prevost suggests that he was not a critic of Francis's liberal or progressive Catholicism.  But at the same time, Prevost has not publicly taken radically liberal positions that would have identified him as challenging the traditional or orthodox position in the Church.

New popes often suggest their intellectual and spiritual propensities as pope by their choice of their new name.  By naming himself Leo XIV, Prevost evokes the memory of Pope Leo XIII, who was pope from 1878 to 1903.  When I think of Leo XIII, I remember two famous features of his papacy.  First, there's his 1891 encyclical Rerum novarum, which is one of the foundational texts of Catholic social teaching.  By the 1890s, there was intense conflict stirred by the debate between socialism and capitalism.  Rerum novarum attempted to mediate that conflict by affirming the rights of workers to fair wages, safe working conditions, and trade unions, while also criticizing both socialism and laissez-faire capitalism.  Against socialism, Leo XIII endorsed the rights of private property as affirmed by Saint Thomas Aquinas as part of natural law.

This appeal to Thomas Aquinas is the second part of Leo XIII's papacy that I remember so well.  In his encyclical Aeterni Patris (1879), Leo XIII recommended Thomas Aquinas's writings as the official foundation for the Christian philosophy and theology of the Catholic Church.  He sponsored the Editio Leonina edition of Thomas's writings.  And he promoted the study of Thomas's texts in Catholic schools and seminaries.  This makes Leo XIII a hero for traditionalist Catholics today who revere Thomas as the greatest theologian and philosopher of Catholic orthodoxy.

If Prevost is appealing to this kind of thinking coming from Leo XIII, then the traditionalist Catholics should be pleased that the Holy Spirit has chosen Prevost as the new pope.

That should mean a lessening of the threat of schism in the Church coming from the traditionalists.  One early confirmation of this comes from the video at Catholic Family News--a hard-right Catholic conservative publication--with Brian McCall and Murray Rundus (on location in Rome), who speak about this new pope as a "compromise candidate," who was acceptable to both liberals and conservatives.  The important point they make is that this satisfied the conservatives because Prevost will not be a Francis II, but rather a Leo XIV.

To me what is most significant in the conversation between McCall and Rundus is that over this hour-long video they never mention the Holy Spirit as having anything to do in this selection of the new pope.  Instead, they analyze everything as an exercise in church politics.  They say that the conservatives "struck a deal" with the liberals to choose Prevost as a "compromise candidate."  

This indicates that even the most conservative or traditionalist Catholics don't really believe that the Holy Spirit intervenes in the selection of popes.  If that is true, doesn't that deny the pretended claim of the Church to have the authority of Revelation behind the succession of popes going back to Peter?   

                                             The Catholic Family News Video on Leo XIV

By the way, this new pope is unusual in another way.  He is the first pope who is eligible to be President of the United States.  The U.S. Constitution says that to be eligible for the presidency, a person must be a natural-born citizen who is at least 35 years old and has been resident of the U.S. for at least 14 years.  Pope Leo XIV satisfies all those qualifications.  Since the Constitution also says there is "no religious rest" for any office of the U.S., the Pope's Catholicism is no disqualification.  In fact, during the ratification of the Constitution, many people complained that the "no religious test clause" would allow government offices to be filled by atheists, deists, Muslims, and even--God forbid--Catholics! 

I have written about the American Catholic Integralists who want America to have a government that enforces Catholic orthodoxy.  Perhaps they should now argue for Pope Leo XIV to become president. 

How Will We Know Whether the Holy Spirit Has Chosen the Pope?

          The Pope Holds the Keys of Heaven Given to Peter by Jesus (Matthew 16:19)

This morning in Rome 133 cardinals celebrated Mass in St. Peter's Basilica, where they prayed for the guidance of the Holy Spirit in selecting the 267th pontiff of the Roman Catholic Church, a successor to Pope Francis.  They then entered the Sistine Chapel, and the doors were closed and locked.  They will have a series of votes until the new pope receives two-thirds of the vote.

As I have argued previously, the Holy Spirit cannot overcome religious pluralism by revealing the one true church for all believers.  This shows that the evolved natural desire for religious transcendence is pluralistic in that human beings will always disagree in what they believe to be the true religious experience of the transcendent world.  There has never been a divine revelation of the religious truth clear enough to bring religious believers to agreement.  This confirms Locke's argument that since "every church is orthodox to itself," government must practice religious toleration, so that every church is a voluntary association that cannot rightly employ force in compelling belief in its orthodoxy.

Isn't it obvious that the voting of the papal conclave will be decided not by the Holy Spirit but by Church politics?  On the one side are the liberals (or progressives) who want to continue the left-wing Catholicism of Francis.  On the other side are the conservatives (or traditionalists) who want to revive the traditionalism of John Paul II and Benedict XVI.  In the middle are the centrists (or moderates), who will probably decide the election.  

This confirms Locke's claim that not just "every church is orthodox to itself," but even "every man is orthodox to himself," so that even within the Catholic Church, the conservative Catholics think themselves more orthodox than the liberal Catholics.  Religious pluralism is manifest within every church.

You can see this illustrated in a essay posted yesterday at the First Things website by Father Raymond de Souza.  He asks: "Does a conclave elect the man the Holy Spirit desires to lead the Church?"  His answer: "History teaches that sometimes it does, sometimes it doesn't."  He agrees with what then-Cardinal Joseph Ratzinger (later Pope Benedict XVI) said in 1997 when asked whether the Holy Spirit chooses the pope:

I would not say so, in the sense that the Holy Spirit picks out the pope.  I would say that the Spirit does not exactly take control of the affair, but rather like a good educator, as it were, leaves us much space, much freedom, without entirely abandoning us.

Thus the Spirit's role should be understood in a much more elastic sense--not that he dictates the candidate for whom one must vote.  Probably the only assurance he offers is that the thing cannot be totally ruined.  There are too many contrary instances of popes the Holy Spirit obviously would not have picked.

But notice that our recognition of the "many contrary instances of popes the Holy Spirit obviously would not have picked" is simply a matter of our human judgment.

De Souza says: "The Holy Spirit does not get a vote in the conclave.  The cardinals elect the pope, and no one else.  The more apt question then is whether this particular conclave is likely to be an instrument of the Holy Spirit, knowing of course that even Balaam's ass can speak should God so will it (Num. 22:21-35)."  He then compares the conclaves of 1978 and 2025.

In 1978, there were actually two conclaves.  The first one selected Pope John Paul I.  The second Pope John Paul II.  De Souza explains:

It is evident now that the second John Paul was God's choice, but that the cardinals could not initially see their way to electing a fifty-eight-year-old non-Italian, so they first got it not exactly wrong, but not exactly right either, electing Cardinal Albino Luciani.  Then the Holy Spirit did cast his vote, and Blessed John Paul I was dead thirty-three days later.

But how does de Souza know that the Holy Spirit cast his vote by killing John Paul I so that John Paul II could be chosen?  De Souza thinks he knows that because he is a conservative Catholic who believes that Pope John Paul II became the great advocate of conservative Catholic orthodoxy, and therefore he believes that the Holy Spirit correctly identified John Paul II as orthodox.

In the rest of his essay, de Souza says that the conclave of 2025 will not be as good an instrument of the Holy Spirit as the twin conclaves of 1978 because so many of the cardinals in 2025 are liberals appointed by the liberal Pope Francis.

Nevertheless, de Souza says he will be confident that the Holy Spirit has guided this 2025 conclave in choosing the right man if they select de Souza's favorite conservative Catholic candidate--Patriarch Sviatoslav Shevchuk of Kyiv of the Ukrainian Greek Catholic Church.

Recently, in an interview with the London Times, another conservative Catholic--German Cardinal Gerhard Muller--said that if the cardinals choose a liberal pope like Francis rather than a conservative orthodox pope, the Catholic Church is likely to split into two.  He explained that Catholics are not obligated to follow a pope who is not orthodox:  "No Catholic is obliged to obey doctrine that is wrong.  Catholicism is not about blindly obeying the Pope without respecting holy scriptures, tradition, and the doctrine of the Church."

These conservative Catholics know what kind of man the Holy Spirit wants to defend Catholic orthodoxy because "everyman is orthodox to himself."

If Cardinal Muller is right, and the selection of a liberal pope creates a schism in the Catholic Church, this will just add one more to the long list of hundreds of schisms in Christianity over the past two thousand years.

That's what I mean by the failure of the Holy Spirit to overcome the natural human propensity to religious pluralism.

In John 17, in the Garden of Gethsemane just before his arrest, Jesus prayed to God that all believers would be as one, that they would come to complete unity, "so that the world may believe that you have sent me."  It seems that Christians give witness to the truth of Revelation by showing their agreement about that Revelation.  But when the Holy Spirit fails to convey God's Revelation of the true Apostolic Successor to Christ as the head of the True Church, that creates doubt about the truth of Revelation.

The Holy Spirit Will Fail to Overcome Religious Pluralism at the Papal Conclave

Pope Francis died on April 21 at the age of 88.  The papal conclave to select the new pope must begin between 15 and 20 days after his death, which will be sometime between May 6 and May 11.  

On the first morning of the conclave, the cardinals will assemble in Saint Peter's Basilica to celebrate Mass.  In the afternoon, they will process to the Sistine Chapel while singing Veni Creator Spiritus ("Come, Creator Spirit"), which is an old Christian hymn that invokes the Holy Spirit as it descended upon the Apostles in Jerusalem at Pentecost, which is considered the beginning of the Christian Church (described in the second chapter of Acts).  Christians believe that this fulfilled Christ's promise to send the Holy Spirit to all believers, and this inspiration by the Holy Spirit would reveal God's truth to all faithful believers.

If this is true, then we would expect the Holy Spirit to reveal to the cardinals and to all Christians who is to be the true apostolic successor to Saint Peter as the Head of the True Church.  It is easy to predict, however, that this will not happen.  The Holy Spirit's message will not be revealed to all the cardinals, who will disagree as to who should be the next pope.  And even if most Catholics accept the election of the new pope, the non-Catholic Christians will not.           

As I have argued previously, the Holy Spirit cannot overcome religious pluralism by revealing the one true church for all believers.  This shows that the evolved natural desire for religious transcendence is pluralistic in that human beings will always disagree in what they believe to be the true religious experience of the transcendent world.  There has never been a divine revelation of the religious truth clear enough to bring religious believers to agreement.  This confirms Locke's argument that since "every church is orthodox to itself," government must practice religious toleration, so that every church is a voluntary association that cannot rightly employ force in compelling belief in its orthodoxy.

                                                        

 

This belief in the Holy Spirit is beautifully conveyed in the pictures above from St. Peter's Basilica.  These images are from the apse at the end of the central nave.  There is an online virtual reality tour of the apse.

In the center of the apse is the Altar of the Chair of St. Peter.  Peter is the "rock" of the Church through whom has passed the apostolic succession linking the popes to Christ.  Beneath the Chair are four huge statues (over 16 feet tall).  The two outer statues are figures of the Latin Church: St. Ambrose and St. Augustine (in the bottom picture above).  The two inner statues are of two Doctors of the Greek Church:  St. Athanasius and St. John Chrysostom.  Thus, it is suggested that these theologians from both the Latin and Greek churches have a consistent teaching that is descended from the Apostles through Peter.

Above the Chair of Peter is a brilliant dove that is a symbol of the Holy Spirit, who guides the Church through Peter, his papal successors, and the theologians to the truth of revelation.

Pope Gregory I (the Great), Pope from 590 to 604.  He is Writing in his Study.  The Holy Spirit as a Pentecostal Dove Whispers in His Ear.  Below, Scribes Copy His Work.  A Tenth-Century Ivory, Kunsthistorisches Museum, Vienna.

In the history of the Catholic Church, there has been disagreement over the best procedure for choosing a new pope that allows for the intervention of the Holy Spirit.  In the first thousand years of the Church, the selection of the Bishop of Rome, who became the Pope, was by acclamation or the consensus of the clergy and laity in Rome.  (For this history, see Frederic J. Baumgartner, Behind Locked Doors: A History of Papal Elections [New York: Palgrave Macmillan, 2003].)

As Pope Pius XII indicated in his bull Vacantis Apostolicae Sedis (December 8, 1945), this mode of acclamation was considered the best sign of quasi afflati Spiritu Sancton ("as if by the inspiration of the Holy Spirit") (par. 66).  Surely, a clear revelation by inspiration of the Holy Spirit would be manifest in the unanimity of the clergy and laity in Rome.

But then, in 1059, the Church decided that the College of Cardinals should be the electors of the Pope.  Some factions in the Church wanted a unanimous decision from the cardinals, but since this was usually impossible, the Church had to decide how to resolve disagreements.  One method was "compromise," where the College of Cardinals would agree to appoint a small group of cardinals with the right to make the decision for the entire College.

A third method was to allow the cardinals to decide by either a simple majority of votes or by a super majority of two-thirds.

The current procedure that will govern the coming papal conclave was set down by Pope John Paul II in his bull Universi Dominici Gregis (February 22, 1996), which was slightly revised by Pope Benedict XVI.  John Paul said that the cardinals should "accept the interior movements of the Holy Spirit."  But he rejected the method of election by acclamation, which he called quasi ex inspiratione ("as if by inspiration"), because "it is no longer an apt means of interpreting the thought of an electoral college so great in number and so diverse in origin."  Thus, he rejected as unrealistic the possibility that the "interior movements of the Holy Spirit" could inspire unanimity in the cardinals' decision.

He also rejected the method of "compromise"--appointing a select group of cardinals to decide--because he wanted all the electors to express their choice personally.

This left the third procedure--election by secret ballot with the decision made by majority vote.  John Paul favored a simple majority.  But Benedict changed this to a two-thirds supermajority.

John Paul says that the cardinals should pray for "the assistance of Almighty God and the enlightenment of the Holy Spirit," so that they will be "likeminded in their task."  But clearly he did not expect that the "likemindedness" induced by the inspiration of the Holy Spirit could secure unanimity.  

Isn't it obvious that the voting of the papal conclave in May will be decided not by the Holy Spirit but by Church politics?  On the one side are the liberals (or progressives) who want to continue the left-wing Catholicism of Francis.  On the other side are the conservatives (or traditionalists) who want to revive the traditionalism of John Paul II and Benedict XVI.  In the middle are the centrists (or moderates), who will probably decide the election.  Donald Trump will surely be endorsing Cardinal Raymond Burke, a conservative who has supported Trump.

One might have assumed that the most traditionalist Catholics would want to claim that the conclave will be decided by the "interior movements of the Holy Spirit" in the minds of the cardinals.  But even the traditionalist Catholics are analyzing the upcoming conclave as if it were a purely political expression of Machiavellian church politics.

For example, the "Catholic Family News" is one of the staunchest traditionalist publications, and yet in the April 2025 there is an article by Serre Verweij on "Decisive Cardinals During the Upcoming Conclave," which explains the various factions at work here--conservatives, moderates, and liberals--and argues that if the conservatives can persuade most of the moderates to vote for an "orthodox candidate," then the next Pope will almost certainly be conservative.  Nothing is said about the Holy Spirit's influence in the conclave.

This confirms Locke's claim that not just "every church is orthodox to itself," but even "every man is orthodox to himself," so that even within the Catholic Church, the conservative Catholics think themselves more orthodox than the liberal Catholics.  Religious pluralism is manifest within every church.

The Evolutionary Symbolic Niche Construction of Liberalism Through Lockean "Consent"

Locke's teaching that government arises from the consent of the people is well known.  But it's not well known that Locke explains the emergence of all social institutions as created by popular consent.  Human beings have created not only government (ST, 95-99) but also languages (ECHU, III.2.8), families (ST, 74-83), morality (ECHU, 28.10), and money (ST, 36) by consenting to their existence.  This is what I have called the evolutionary symbolic niche construction of Lockean liberalism.  Of course, Locke does not use this terminology, but it's the best way to explain what he means in claiming that human beings create social institutions by consenting to them.

We should start by seeing that Locke was answering the fundamental question of modern intellectual life.

HOW MANY WORLDS ARE THERE?

If we accept the modern scientific explanation of the natural world as it arose in the seventeenth century, how can we explain the human mind and human society?

There are at least three ways to answer this question.  One way is to assume that there is only one world, and therefore the mind and society must be explained as arising somehow from the natural world as studied by modern science.  Another way is to assume that there are two worlds, because the natural world of science is separated from the human world of mind and society.  A third way is to assume that there are three worlds--the natural world of objective facts, the mental world of subjective experience, and the cultural world of social ideas and practices. 

According to the first way, the natural sciences, the social sciences, and the humanities should become parts of one universal science of nature.  According to the second way, there is an unbridgeable gulf between the natural sciences and the human sciences.  According to the third way, the unbridgeable gulf separates three realms of thought about three different worlds: the natural sciences are separated from the psychological sciences, and both are separated from the social sciences and humanities.

As should be evident from many of my posts, I think the first way is best.  There are two different intellectual strategies for achieving this one-world vision--reductive physicalism and emergent evolution.  According to reductive physicalism, the complete unification of all knowledge of the natural world would ultimately require explaining everything through physics.  According to emergent evolution, which is the position that I take, the history of the universe is a history of emergent complexity, in which higher levels of complexity arise from lower levels, and while those higher levels are consistent with the lower levels, the higher cannot be fully reduced to the lower.  

So, for example, biology must be consistent with physics and chemistry, but biological phenomena have an emergent complexity that cannot be fully reduced to physics and chemistry.  The mind and society are also emergent phenomena that must be compatible with the laws of physics and chemistry, but without being fully reducible to those physical and chemical laws.  Some of my posts elaborating these points can be found here, here, here, and here.

My thinking here largely coincides with the thinking of John Searle, particularly in his book Making the Social World: The Structure of Human Civilization (Oxford University Press, 2010).  Like me, he thinks the fundamental questions of modern intellectual life are about how to explain human life in a manner that is compatible with modern natural science.

"How can we give an account of ourselves, with our peculiar human traits--as mindful, rational, speech-act performing, free-will having, social, political human beings--in a world that we know independently consists of mindless, meaningless, physical particles?  How can we account for our social and mental existence in a realm of brute physical facts?" (ix)

Like me, Searle assumes that we live in one world--that we live in one reality with physical, mental, and social aspects--and that our explanations of mental and social life must be compatible with the physical sciences but not simply reducible to those sciences.  And so, for example, in Making the Social World,  he offers an explanation of social reality as created and maintained by language, while explaining language as a natural product of the human biological evolution of the brain that enabled the human mind to create social institutions through what he calls "collective intentionality."

I mostly agree with Searle about all of this.  My one major point of disagreement is that Searle fails to see how his account of how human beings create social institutions through collective recognition or acceptance of those institutions is a Lockean social contract theory of morality and politics.  If one sees this, and also sees how Lockean social contract reasoning can be understood in modern evolutionary theory as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions.  This can also be described, as it is by Deirdre McCloskey, as a transformation in ethical ideas, moving from an aristocratic ethics that scorned the pursuit of economic gain to a bourgeois ethics in which life in a commercial society became virtuous.

We live in a world of institutional facts that constitute our social reality.  Consider one of Searle's favorite examples--the twenty dollar bill.  Because of its institutional status, I can use that twenty-dollar bill to buy goods and services.  As a physical object, it's only a piece of paper with some ink marks on it.  But as long as we accept its institutional status as currency of the United States, with its stipulated value, it has power as a medium of exchange.  Searle would say that this institutional reality of the twenty-dollar bill has been created by a linguistic or symbolic representation that we can call a Declaration of Status Function, which has the form "X counts as Y in C."  We agree that this piece of paper counts as money in the context of the monetary system of the United States.  It has the status of money that can function as currency because of our agreement to regard it as such.  Remarkably, we have created the social reality of money by declaring our agreement that it should count as such, as long as the paper money has the correct symbols, such as the words "This note is legal tender for all debts, public and private."  (Searle does not realize that he is following Locke here, because Locke stressed that the "invention of money" was "by consent" [ST, 36].)

Similarly, Donald Trump is President of the United States, and has all the rights and duties of the presidency, because we have agreed to count as president anyone who wins a presidential election according to the procedures for the Electoral College and who satisfies the qualifications prescribed in the United States Constitution.  

I am a husband, a professor, and a citizen of the United States.  I own a house, a car, and other property.  I have the rights and duties created by the formal laws and informal social norms of my neighborhood, my city, and my country.  Social facts like these enable us to live a civilized human life.

The mystery here, as Searle indicates, is how we can have an objective knowledge of this social reality that is created by human subjective opinions.  The human capacity for language and symbolism enables us to create a reality by representing that reality as existing and agreeing among ourselves to accept that reality as existing, which allows us to create a social and institutional reality out of language, symbolism, and collective intentionality.

To explain scientifically how this subjective creation of social reality is possible in a natural world of physical facts, we would need to explain the natural evolution of the human brain that created the human capacity for language and symbolism.  Searle offers a conceptual analysis of how language as a natural, biological phenomenon could have evolved among human evolutionary ancestors as an extension of prelinguistic forms of intentionality.  Within evolutionary biology, there is continuing study of the evolution of human language.

Other animals have some capacity for communication and social learning that can create animal cultures of inherited behavioral traditions.  But human beings are probably unique in their capacity for language and symbolism that allows them to create imaginary social realities.  (As I have indicated in a previous post, Eva Jablonka argues well for the evolution of symbolic culture as being uniquely human.)

So, for example, some primates have social orders in which some individuals are treated as alpha males.  But this falls short of the human capacity of moral symbolism by which we agree to recognize some individuals in specified circumstances as having the right to rule over us.

Here we see the moral power--or "deontic power" as Searle calls it--implicit in the human creation of social reality.  "Deontic" is derived from the Greek word deon, denoting something we must do or ought to do--our ethical duty.  In creating social facts, we create ethical facts, because we create formal laws or informal norms of social life that constitute rights and duties of individuals in specified social roles.  As a husband, professor, and citizen, I have the rights and duties of those socially created roles.  Moreover, as a human being, I might have the human rights and duties that arise from my socially recognized status as a member of the human species.  Searle argues that this is indeed the case--that our social reality does include the reality of natural human rights, which include the natural rights to life, liberty, property, and the pursuit of happiness, as rights rooted in our biological human nature.

This sounds a lot like John Locke's argument for natural rights and social order constituted by a social contract.  But, oddly, Searle rejects Locke and social contract reasoning, without realizing that his thinking largely coincides with that reasoning.  Searle doesn't see that in explaining how status functions arise from "collective intentionality" or "collective acceptance or recognition of the object or person as having that status" (8), he is adopting the Lockean argument for social authority as arising from the consent of human individuals.

Searle offers two criticisms of Locke and the social contract theorists.  He says that they are wrong about the state of nature, because they don't understand that once human beings have a shared language, they have a social contract and a society.  "If by 'state of nature' is meant a state in which there are no human institutions, then for language-speaking animals, there is no such thing as a state of nature."  His second criticism is that Locke "gives no evidence of seeing that any account of language could show how language underlies society" (62).  Both of these claims are mistaken.

Locke makes it clear that in the state of nature, when human beings lived in bands of hunter-gatherers, there was no formal government, but there were human institutions--particularly, marriage, families, private property, economic exchange, and social norms of moral conduct that Locke calls "the law of nature."  There was a kind of informal government in the governing of children by their parents and in the episodic authority of military leaders in time of war (Second Treatise, pars. 74-75, 94, 105, 107-109, 170).

This was the first human society that was created by informal consent--collective recognition or acceptance--through language, and language itself was a social creation in which certain sounds were given symbolic meaning by a "tacit consent" (ECHU, III.2.8).  But this society was not a political society, because there was not yet any consent to a formal government or legal system (First Treatise, pars. 86-93; Second Treatise, pars. 6-14, 25-35, 77-90).  Searle is mistaken, therefore, in assuming that Locke thought there were no human institutions in the state of nature.

Searle is also mistaken in assuming that Locke did not recognize how language creates society.  In fact, Locke explained in the Essay Concerning Human Understanding that social institutions were created by human beings through the language of "mixed modes" for use in social intercourse (II.2.22; II.28.2-4; II.31.3; III.1.1, III.2.8; III.5).  Echoing Locke's terminology, Searle speaks of "the mode of existence of social entities" (5).

Mixed modes are important for social and political thought, because most of the words used in theology, ethics, law, and politics are mixed modes.  Locke's examples of mixed modes include adultery, incest, murder, parricide, justice, gratitude, glory, and ambition.

Locke emphasizes the arbitrariness of mixed modes.  The ideas of mixed modes are "made very arbitrarily, made without patterns, or reference to any real existence.  Wherein they differ from those of substances, which carry with them the supposition of some real being, from which they are taken, and to which they are conformable.  But, in its complex ideas of mixed modes, the mind takes a liberty not to follow the existence of things exactly."  Mixed modes are "the workmanship of the mind" (III.5.3-4). 

This is the same arbitrariness that Searle sees in institutional facts that exist only because we think they exist and say that they exist.  Searle declares: "God can create light by saying 'Let there be light!'  Well, we cannot create light, but we have a similar remarkable capacity.  We can create boundaries, kings, and corporations by saying something equivalent to 'Let this be a boundary!' 'Let the oldest son be the king!'  'Let there be a corporation.'" (100)

But since both Searle and Locke stress the arbitrariness with which human beings freely create their social norms by collective consent through speech, we have to wonder whether this denies that there is any natural foundation or standard for judging our moral ideas.  And if so, wouldn't this contradict Locke's claim that there is a natural law knowable by natural human reason and Searle's claim that human rights are rooted in human nature, which suggest a natural standard rather than arbitrary creation?

Locke says that while mixed modes are made "very arbitrarily," they are not made "without reason" or "at random" (III.5.3, 6-7).  Although our moral ideas are not copied from nature, they are made by human beings for the purpose of communicating standards of conduct that facilitate human social life; and the requirements of such a life are shaped by the natural desires and inclinations of human beings.  The ultimate natural standard for judging social norms is whether they satisfy the natural human pursuit of happiness (I.2.3; III.21.42-73).  In that way, human nature does set standards for our moral ideas.

So, for example, if human beings say that intentionally killing an innocent human being is murder, but killing a sheep is not, this distinction is not simply discovered by just looking at human beings killing one another and killing sheep.  This moral distinction is made by human beings to serve the natural desire of human beings to preserve their lives against attack and to punish those that threaten them (III.5.5-6; FT, 86-88; ST, 7-11).  And if we distinguish the killing of a father or mother as worse than killing others, it's because we agree to recognize the different heinousness of the crime that demands a distinct punishment that fits the crime (III.5.7).  Similarly, if we create the idea of an incest taboo, it's because human beings naturally express moral disgust in response to incest, although there will be cultural variation in how incest is defined based on variable kinship systems.

Like Locke, Searle appeals to human biological nature as the natural standard for natural human rights.  And from that standard, Searle derives a minimal list of human rights that looks much like what Locke would endorse: "the right to life, including the right to personal liberty, the right to own personal private property (such as clothing), the right to free speech, the right to associate freely with other people and to choose with whom one associates, the right to believe what one wants to believe, including religious beliefs as well as atheism, the right to travel, and the right to privacy" (185).

But while Searle sees these rights as status functions created by human beings through their collective intentionality, he recognizes that many people have believed that such rights are insecure if they are not seen as part of the natural order of things or created by God.  He sees this in the Declaration of Independence: "We hold these truths to be self-evident" that all men "are endowed by their Creator with certain unalienable rights."  Searle suggests that this belief in divine creationism is false (107, 118-19, 183).  And he indicates that this creates a problem for his theory of social institutions.  In such cases, "the status function only works as a status function precisely because it is believed not to be a status function but a brute intentionality-independent fact about the universe."  But then, he indicates, all that matters is that the people do collectively recognize or accept the system of status functions, even though the collective acceptance is based on a false belief in a divine moral law (119).

Although Locke rejects the idea of the "divine right of kings," he does appeal to the creationist theology of human beings as having a special moral dignity because they are the "workmanship" of God who created them in His image (FT, 30, 52-54, 85-86; ST, 6, 56).  He also, however, grounds the moral dignity of human beings in their self-ownership as beings who claim a property in their own persons (ST, 27, 172-73).  And some readers have wondered whether this could provide a purely natural ground for Lockean natural rights, without the need for appealing to supernatural creationism.

But then when the Declaration of Independence appeals to "the Laws of Nature and of Nature's God," this suggests a natural creationism--that is, Nature's God creates through natural law, perhaps through a natural evolutionary process.  And indeed many Christians are theistic evolutionists who see God working through natural evolution.  Locke often speaks of the "Laws of God and Nature" (Second Treatise, pars. 1, 4, 60, 66, 142, 195).

Men might be created equal and endowed by their Creator with certain unalienable rights through the human evolution of a large and complex cerebral cortex that allows them to collectively recognize human equality of rights.

In any case, evolutionary biology can recognize the practical efficacy of religious belief--particularly, religious belief in a moral God who cares for human beings and enforces moral law through rewards and punishments.  Research in cross-cultural economic game experiments indicates that those who belong to one of the world religions tend to show a sense of fairness in their playing of the games.  And evolutionary biologists like David Sloan Wilson have argued that religious belief evolved through group selection to support cooperation within groups.

Evolutionary biology could also recognize the success of Lockean liberalism in promoting its moral and political ideas as an expression of symbolic niche construction.  "Niche construction" is a modern term in evolutionary theory that refers to plants and animals constructing the environment to which they are evolutionarily adapted.  For example, beavers alter their environment by building dams, and beavers have adapted this constructed environment (Odling-Smee, Laland, and Feldman 2003; Odling-Smee 2024) 

This idea was first developed in Darwin's last book--The Formation of Vegetable Mould, through the Action of Worms (1881)--in which he studied how earthworms continually alter the surface of the Earth by breaking down soil into fine particles, thus they construct the environment to which they are evolutionarily adapted.  

We can also see the cultural history of animals as niche construction, in that cultural animals create cultural traditions that are inherited by later generations.  Human beings do this not only through behavioral traditions of culture but also through their uniquely human creation of symbolic realities, including the symbolic systems of religion, morality, and politics.

As a political philosopher who supported the radical Whig program, Locke was engaged in a rhetorical project to transform the religious, moral, and political ideas of England to create what would later be called liberalism.  This was an exercise in symbolic niche construction.  The success of that project began to appear with the success of the Glorious Revolution of 1688, and it emerged even more clearly later in the 18th and 19th centuries with the success of Lockean Whig ideas and the emergence of the Bourgeois Era and the Industrial Revolution.

The triumph of Locke's liberalism required a rhetorical change in moral ideas so that a bourgeois way of life could be seen as virtuous.  This is what Deirdre McCloskey has been writing about in her series of books on the "bourgeois virtues."  In a recent article, McCloskey has argued that Searle's social ontology supports her reasoning, because we can see the Bourgeois Era as arising from a status function declaration:  Commercial life counts as honorable in the Bourgeois Era ("Max U vs. Humanomics: A Critique of Neo-Institutionalism," Journal of Institutional Economics 12 [2016]: 1-27.).

Although I generally agree with McCloskey, I do have some questions about her argument.  In her criticism of Douglas North's institutional explanation for the modern move into open access societies, she sets up a stark opposition between social institutions and moral ideas, and argues that it was a change in ideas rather than a change in institutions that explains the modern revolution.  But her acceptance of Searle's social ontology suggests that what she really wants to say is that social institutions rightly understood are created by the social acceptance of the moral ideas that constitute and maintain those institutions.

Another question that I have for McCloskey is also a question for Searle:  Do they give enough weight to violence and war in shaping the moral history of social institutions?  Occasionally, Searle acknowledges that social institutions have to be backed by force, although "forms of organized coercion are themselves systems of status functions" (88, 97, 104, 141-42, 163, 171, 173). 

Locke goes farther than either Searle or McCloskey in stressing the importance of trial by battle when there is some deep controversy over who has the authority to settle disputes over political power.  This is what Locke calls the "appeal to Heaven," the appeal to the God of battles (ST, 19-21, 109, 155, 168, 176, 232, 240-43).

Locke himself was involved in the Whig conspiracies for assassinating and rebelling against Charles II and James II.  Because of that involvement, he was forced to flee to Holland to avoid being tried and executed for treason.  While he lived in Holland, he had to worry about being captured by the King's agents and extradited to England for trial. He supported the Revolution of 1688, and despite its reputation as a "bloodless" revolution, there was a lot of violence in the Revolution (as Steven Pincus has shown in his 1688: The First Modern Revolution [2009]).  Ultimately, the success of the Revolution depended on the defeat of the Jacobite armies that tried to restore the Stuart monarchy.  The military threat of the Jacobites was not finally put down until the battle of Culloden in Scotland in 1746.

The evolutionary history of liberalism is a rhetorical history of persuasive speech, but it is also a military history of war that has turned on the unpredictable contingencies of battle.  

As Winston Churchill observed, "Great battles, whether won or lost, change the entire course of events, create new standards of values, new moods, new atmospheres, in armies and in nations, to which all must conform" (Marlborough: His Life and Times).

THE DECLARATION OF INDEPENDENCE AS LOCKEAN SYMBOLIC NICHE CONSTRUCTION

If Lockean social contract reasoning can be understood as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions.  We can see this manifested in the Declaration of Independence, particularly in its famous second paragraph that echoes Locke's Second Treatise ("We hold these truths to be self-evident . . .).

The Declaration of Independence is what Searle calls a Declaration of Status Function, which has the form "X counts as Y in C."  The American Revolutionaries declared that "these United Colonies [X] are, and of Right ought to be Free and Independent States [Y]" in the European system of states [C].  The success of that Declaration depended on whether in their "decent respect to the opinions of mankind," they could persuade world opinion to recognize their status as "Free and Independent States."  

Their success depended on both the intellectual persuasiveness of their reasoning in the Declaration and the forceful persuasiveness of their winning the Revolutionary War.  Of those people both inside and outside the American colonies who were not persuaded by the intellectual argument of the Declaration, many were persuaded to accept it once the Americans had won the war.  Going to war to settle the dispute was what Locke called the "Appeal to Heaven"--the appeal to the "God of Battles."

In March of 1776, the Continental Congress asked for prayers "that it may please the Lord of Hosts, the God of Armies, to animate our officers and soldiers with invincible fortitude."  In the following October, King George III issued a Proclamation "putting Our Trust in Almighty God, that he will vouchsafe a Special Blessing on Our Arms, both by Sea and Land" (Shain 2014: 407-408).  This is the same as what Abraham Lincoln saw in the Civil War: "Both read the same Bible and pray to the same God, and each invokes His aid against the other" (Second Inaugural Addess).  The "God of Armies" will decide.

The first major victory for the Americans was in the Battle of Saratoga in 1777.  When French King Louis XVI saw this, he agreed to a formal Franco-American alliance.  This proved to be a turning point in the war (Weddle 2021).  If the British had won that battle, that might have been enough to refute the Declaration of Independence.  As I have argued in previous posts, there is a sense in which might does make right.

The Continental Congress was a practical demonstration of the truth of the Lockean principles of the Declaration of Independence.  Acting in a state of nature, the Congress exercised the Lockean executive power of the law of nature in punishing Great Britain for violating that natural law, in establishing the Continental Army to settle the dispute by force of arms, and in instituting a new government to secure their natural rights.

THE RIGHT TO DUE PROCESS OF LAW AS SYMBOLIC NICHE CONSTRUCTION

In writing new constitutions for governments at both the state and national levels, the Americans had to debate what kind of constitutional language would best secure their natural rights.  Beginning with the Virginia Bill of Rights of 1776, it was common for the state constitutions to have a list of rights that must be protected.  The U.S. Constitution of 1787 did not have a bill of rights, but many of the state ratifying conventions recommended amendments that would provide a bill of rights.  In the First Congress of 1789, James Madison and others proposed such amendments, which were ratified in 1791, and these first ten amendments became known as the Bill of Rights.  Here then is another example of symbolic niche construction through a declaration of status function:  the American people agreed to recognize the first ten amendments as a statement of human rights in America as secured by constitutional law.

One of those stipulated rights is due process of law as stated in the Fifth Amendment: "No person shall . . . be deprived of life, liberty, or property, without due process of law."  A similar provision became part of the Fourteenth Amendment: ". . . nor shall any State deprive any person of life, liberty, or property, without due process of law."

But as I have indicated in some recent posts, Trump has recently claimed that as President he has the power to suspend the right to due process of law--particularly, in his deportation of immigrants who have been sent to a prison in El Salvador.  Trump's argument is that this cannot be an absolute right for all persons in the United States, because in time of emergency, the President must have the power to remove people from the United States without due process of life if he identifies them as dangerous threats to America.

Trump has appealed to the Alien Enemies Act as giving him this power to protect America from "invasions," and he claims that illegal immigrants constitute an "invasion" of the U.S.  The Courts, however, have said that as used in the Alien Enemies Act, "invasions" clearly means military invasions.  And since Venezuela has not invaded the U.S. militarily, Trump cannot deport Venezuelans without due process of law.

There are reports that Trump is considering suspending the writ of habeas corpus, which would be another way to suspend the right of due process of law.  He could cite the Constitution's provision in Article I, Section 9, Clause 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Abraham Lincoln suspended the writ at the beginning of the Civil War, claiming that the Confederacy was clearly in a "rebellion" against the United States, and the public safety required that his commanders in the field needed to suspend the writ to arrest and detain people suspected of being spies or saboteurs for the Confederacy.

Trump would have to convince the courts and the American people that the many illegal immigrants in the U.S. count as an "invasion," which makes it necessary for the President to suspend the writ to protect the public safety of Americans threatened by the criminal violence of illegal immigrants.

Trump could also claim that he was exercising what John Locke identified as executive prerogative--the power of the executive "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it," which could include suspending individual rights in time of emergency (ST, 160).

This is an illustration of how Americans often have to debate the meaning of their symbolic niche construction of individual rights.  If Americans have agreed to the establishment of due process of law as an individual right, must they agree that this is an absolute right never to be infringed?  Or are their circumstances--perhaps a national emergency of some sort--in which the public good would require suspending that right?  But if so, what counts as a true emergency in which the public good would require allowing the President to exercise dictatorial power in denying individuals the natural rights that we usually want to protect?

The courts and the American people will have to decide.