Egalitarian Hierarchy in Locke's Hunting-Gathering State of Nature: A Response to David Graeber, David Wengrow, Manvir Singh, and Luke Glowacki

I have often argued that scientific studies of the hunting-gathering way of life as the "environment of evolutionary adaptedness" (EEA) confirm John Locke's account of the state of nature as the original condition in which human beings were naturally free and equal, in that no adult was under the coercive authority of anyone else, although they consented to the leadership of some people in organizing their social life.  In particular, I have said that studies of the San !Kung people living in the Kalahari desert of southern Africa show that these hunter-gatherer people have lived in Locke's state of nature.

Recently, however, some evolutionary anthropologists have claimed that this is a false origin myth, because there is plenty of archaeological and ethnographic evidence against the assumption that the early human societies of hunter-gatherers were all mobile, small-scale, and egalitarian.  We have good reasons to believe that many of these earliest societies in the Pleistocene era (2.5 million to 12,000 years ago) were sedentary, large, and hierarchical, and that this happened long before human beings turned to farming and agrarian civilization near the beginning of the Holocene era (12,000 years ago).  Therefore, the San !Kung should not be taken as a model of what our human ancestors in the Pleistocene era looked like.

David Graeber and David Wengrow have argued for this in their big book--The Dawn of Everything.  A few years ago, they summarized their reasoning in an article.  A similar position has been recently developed by Manvir Singh and Luke Glowacki in an article published in Evolution and Human Behavior.  Singh has written about this in two essays for Aeon.  The appearance of the article in Evolution and Human Behavior is significant because this is the official journal of the Human Behavior and Evolution Society, which has been dominated by the evolutionary psychology of John Tooby, Leda Cosmides, and others who identify the EEA with hunting-gathering societies in the Pleistocene that were small, nomadic, and egalitarian bands.  Singh and Glowacki are challenging this fundamental assumption of evolutionary psychology.

Now, of course, we might wonder why it should it matter to us what human societies in the Pleistocene looked like.  Well, it should matter a lot because since most of our evolutionary history was spent in the Pleistocene, those prehistoric societies shaped our evolved human nature, which constrains and enables, although it does not precisely determine, our cultural history and individual history.

Graeber, Wengrow, Singh, and Glowacki present both ethnographic and archaeological evidence for their claims.  They contend that the ethnographic studies of hunting-gathering societies show great social diversity: some of these foraging societies have been small, mobile, and egalitarian; but some have been large, sedentary, and hierarchical.  They don't all look like the San !Kung.  In fact, there are good reasons to consider the San !Kung to be atypical because for centuries the San were forced into the resource-scarce environment of the Kalahari desert by the Bantu agro-pastoralists who claimed the resource-rich land for themselves.  By contrast, when foragers have access to areas with a high concentration of plants and animals that can be a rich source of food, they can settle into sedentary or semi-sedentary societies with large populations in which complex social hierarchies can emerge.

Consider, for example, the Calusa, a fisher-hunter-gatherer society, with no farming, who were discovered by the Spanish explorers and conquistadors in Florida in the early 16th century.  The Calusa had as many as 20,000 people living in towns scattered across the west coast of Florida from Tampa Bay to the Keys.  They were ruled by a King in a capitol town, who demanded tribute from the chiefdoms in his territory.  He enforced his rule through military force and through his claim to sacred authority sanctioned by a priesthood.  Under the King was a nobility, and under them all other people were commoners.  

Anthropologists have often assumed that a monarchic state like this was impossible without agriculture to create the economic surplus that would allow the emergence of such a complex social structure.  But the Calusa produced a surplus of food primarily through fishing.  They lived around coastal estuaries where there was an abundance of fish that could be held in artificial ponds and caught with nets.  The fish could then be smoked or dried for storage.  The King and his nobles controlled the production and distribution of this food to support their coercive rule over the commoners.  William Marquardt and other archaeologists working in southwestern Florida have confirmed the accuracy of what the Spanish reported about the Calusa.

Graeber, Wengrow, Singh, and Glowacki see evidence like this for large societies of sedentary and hierarchical hunter-gatherers as refuting the "nomadic-egalitarian model" of anthropologists like Christopher Boehm and others who assume that hunter-gatherers must be egalitarian, and that our hunter-gatherer ancestors must all have been egalitarian.  Singh and Glowacki have proposed a new "diverse histories model" for explaining the EEA of our hunter-gatherer ancestors in the Pleistocene.  Singh and Glowacki accept the "nomadic-egalitarian model" as only partially true--that is, true for those hunter-gatherer societies that were small-scale, mobile, and egalitarian.  But their "diverse histories model" would also recognize some of our ancestral hunter-gatherer societies were like the Calusa in being large-scale, sedentary, and hierarchical.

If this were correct, this would deny my claim that the evolutionary psychology of hunter-gatherers as shaped in an egalitarian EEA confirms the truth of Locke's account of the state of nature as a condition of equal liberty.  But I would suggest some arguments for why this is not correct.

First, we should notice that there is no clear archaeological evidence for coercive hierarchies in the hunter-gatherer societies in the Pleistocene--that is, before the Holocene era began about 12,000 years ago.  If you look carefully at Table 1 in the article by Singh and Glowacki, which presents 34 examples of sedentary or semi-sedentary foragers, you will notice that only two of the examples come before the Holocene, and only one of these two is said to show evidence of inequality.

Number 11 on the Table is located on the "Russian Plain" and dated at "18,000-12,000 BP," which would place it at the transition from the Pleistocene to the Holocene.  If you go to the Supplementary material for the article online, you will see that the reference for this case is the work of Olga Soffer (1985), who is famous for her work on archaeological sites in the area of what is now Ukraine, where she has uncovered artifacts dated to the "Upper Paleolithic"--18,000 to 12,000 BP.  She found evidence that the ancient people here lived by hunting large mammals--mammoths, bison, and horses.  She also found storage pits and dwellings made from mammoth bones.  Singh and Glowacki say there is evidence of inequality in this society, which they describe as "dwellings vary in size and number of storage pits and elaborate goods."  That looks dubious to me.

Singh and Glowacki define "inequality" as "substantial differences in material wealth, institutionalized status hierarchies, and/or coercive political authority."  Why is it "and/or"?  Does that mean that a society can have inequality in wealth and status without coercive political authority?  If so, that would be what Boehm calls "egalitarian hierarchy":  even when some people in a hunting-gathering society have a little more wealth and status than others, no one can coercively order people to do what they don't want to do.  Even if "dwellings vary in size and number of storage pits and elaborate goods," that's not necessarily evidence for "coercive political authority."

Number 12 on Singh and Glowacki's Table is the only other example from the late Pleistocene.  It's dated at 29,000-22,500 BP.  Here they are referring to the archaeological evidence for the Pavlovian culture, with sites in Moravia (in the east of the Czech Republic), northern Austria, and southern Poland.  The economy of these people was based on hunting mammoth on the tundra at the southern edge of the glacier covering northern Europe at the time.  They had a sophisticated stone age technology, which included weaving, elaborate dwellings, figurines carved from ivory, religious art, and ritualistic burials.  Notably, Singh and Glowacki see no evidence of inequality here.  There is some evidence, however, that some people took on the role of shaman, which presumably meant that they had a special status.  But there is no evidence here for anything like the coercive political authority of the king ruling over the Calusa.

So while Singh and Glowacki stress the importance of finding inequality in societies of "hunter-gatherers during the Pleistocene," because that was the long period of human evolution in which human nature was shaped, they actually present no evidence for despotic political authority in the Pleistocene.

Singh and Glowacki do see evidence for inequality in Pleistocene hunter-gatherer societies as suggested by elaborate burials:  "These burials, many of which are of juveniles, were accompanied by lavish grave goods, such as perforated deer canines and objects made of mammoth ivory.  Such goods were often rare or exotic and appeared to require time and mastery to produce--indications of wealth and inequality among ethnographically observed foragers. . . . Importantly, however, all of these sites appear at the very end of the Pleistocene and are subject to ongoing debates over their interpretation" (426).

As an illustration of the "ongoing debates over their interpretation," some archaeologists have suggested that this funerary evidence for Pleistocene social inequality could be interpreted as showing what Boehm has called "egalitarian hierarchy."  Singh and Glowacki assume a strict dichotomy between "equality" and "hierarchy," so that any evidence of hierarchy denies equality.  But as I have indicated in some previous posts, Locke and Boehm see that absolute equality of condition is impossible in any society.  But it is possible to have a society with an egalitarian ethos that allows for some moderate leadership and hierarchy while prohibiting coercive dominance of some over others.  Evolutionary anthropologists who study leadership across human societies have found that leadership is a human universal--it is found in some form in all societies--but that hunter-gatherers tend not to have leaders with coercive authority (Garfield, Syme, and Hagen 2020).

In one of the best articles on the question of whether Pleistocene burials show evidence of social inequality, Mircea Anghelinu (2012) concludes:

"For powerfully adaptive reasons, strong egalitarian practices (e.g. collective food sharing and redistribution, reciprocity), coupled with short-lived alliances among individuals (Runciman 2005) were probably at work quite early in the Lower Palaeolithic.  Strong kinship ties and group selection (Boehm 1999; Richerson and Boyd 2001) provided additional support for the emergence of cooperation and of an easy to monitor egalitarian social contract.  This collective social control was occasionally challenged in the Upper Palaeolithic, when both technological and demographical accretion and local affluence allowed several gifted individuals a more boastful behavior.  These changes, nothing more than opportunistic circumventions of egalitarian rules, were far from general and clearly reversible, but left behind some of the most spectacular prehistoric burials" (39).

Apparently, Anghelinu sees in the Pleistocene EEA what Boehm calls a "reverse dominance hierarchy": 

 "When the subordinates take charge to firmly suppress competition that leads to domination, it takes some effort to keep the political tables turned.  For the most part, the mere threat of sanctions (including ostracism and execution) keeps such power seekers in their place.  When upstartism does become active, so does the moral community: it unites against those who would usurp the egalitarian order, and usually does so preemptively and assertively.  This domination by the rank and file is so strong that useful leadership roles can develop without subverting the system.  The rank and file, watching leaders with special care, keep them from developing any serious degree of authority" (Boehm 1999: 10).

The Calusa failed to enforce this egalitarian hierarchy in their society.  But there is no clear evidence that Pleistocene hunter-gatherers failed to do this.

REFERENCES

Anghelinu, Mircea. 2012. "On Palaeolithic Social Inequality: The Funerary Evidence." In Raluca Kogalniceanu, Roxana-Gabriela Curca, Mihai Gligor, and Susan Stratton, eds., Homines, Funera, Astra: Proceedings of the International Symposium on Funerary Anthropology, 31-43.  Oxford, UK: Archaeopress.

Boehm, Christopher. 1999. Hierarchy in the Forest: The Evolution of Egalitarian Behavior. Cambridge: Harvard University Press. 

Garfield, Zachery H., Kristen L. Syme, Edward H. Hagen. 2020. "Universal and Variable Leadership Dimensions Across Human Societies." Evolution and Human Behavior 41: 397-414.

Graeber, David, and David Wengrow. 2018. "How to Change the Course of Human History (At Least the Part That's Already Happened)." Eurozine (March 2).

Graeber, David, and David Wengrow. 2021. The Dawin of Everything: A New History of Humanity. New York: Farrar, Straus, and Giroux.

Marquardt, William H. 2014. "Tracking the Calusa: A Retrospective." Southeastern Anthropology 33: 1-24.

Singh, Manvir. 2021. "Beyond the !Kung." Aeon (February 8).

Singh, Manvir, and Luke Glowacki. 2022.  "Human Social Organization During the Late Pleistocene: Beyond the Nomadic-Egalitarian Model." Evolution and Human Behavior 43: 418-431.

Soffer, Olga. 1985. The Upper Paleolithic of the Central Russian Plain. San Diego, CA: Academic Press.

Stewart, Tamara Jager. 2020. "Investigating the Calusa." American Archaeology 24 (Fall): 1-10.

Against the Independent State Legislature Theory: How Judges Have Impeded the John Eastman/Claremont Institute Plot to Overturn the Constitution for Trump

In previous posts, I have written about how judges have frustrated the attempts by John Eastman and the Claremont Institute to overturn the Constitution in support of Trump.  In many cases, these judges were even appointed by Trump.  This vindicates the constitutional principle of rule of law in checking the ambition of potential dictators.  Recently, we have seen two more examples of this coming from retired federal appellate judge J. Michael Luttig and federal district court judge David Carter.

The House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol has sought to obtain emails sent or received by John Eastman on his Chapman University email account between November 3, 2020 and January 20, 2021.  Eastman filed a suit with the U.S. District Court in California arguing that many of these emails were protected by the attorney-client privilege, because he was acting as an attorney advising Trump as his client.  David Carter is the judge in this case.

Judge Carter began by examining 111 documents dated January 4-7, 2021, that were under dispute.  In a decision on March 28, Judge Carter ruled that while 10 documents were privileged, 101 were not; and Eastman was ordered to turn these over to the Committee.

The attorney-client privilege is subject to a "crime-fraud exception," which applies when "(1) a client consults an attorney for advice that will serve [them] in the commission of a fraud or crime, and (2) the communications are sufficiently related to and were made in furtherance of the crime" (p. 31 of Carter's decision).  Carter ruled that the Select Committee was correct in claiming that the crime-fraud exception applied in this case, because Eastman and Trump were acting illegally in attempting to obstruct Congress's proceeding to count the electoral votes on January 6, and in attempting to defraud the United States by interfering with the election certification process.

Carter surveyed the evidence for concluding that the "illegality of the plan was obvious" to both Eastman and Trump (36), and that "it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021" (40).

In a decision a few days ago, October 19, Judge Carter ruled on the claim of privilege over the documents from November 3, 2020, to January 20, 2021.  Once again, Carter ruled that "more likely than not" Eastman and Trump committed obstruction of an official proceeding and a conspiracy to defraud the United States (3).  His most shocking conclusion was that in some of these emails, Eastman said that in one of their lawsuits claiming voter fraud in Georgia, where they had counted fraudulent votes by "10,315 deceased people, 2,560 felons, and 2,423 unregistered voters," they had found that "some of the allegations (and evidence proffered by the experts) has been inaccurate," and yet Trump had signed a verification swearing under oath that these numbers were correct" (16-17).  Thus, Eastman and Trump knew that they were lying under oath about their evidence for voter fraud.  This is a stunning piece of evidence for the guilt of Eastman and Trump.

Since Carter was appointed to the federal bench in 1998 by President Bill Clinton, Eastman and Trump can say that this just shows the political bias of a liberal Democrat judge.  But they can't say that about the Trump-appointed judges that have ruled against Eastman and Trump.  Moreover, they can't say this about J. Michael Luttig, who has long been known as one of the most conservative Republican judges in the country, and who has become one of the leading critics of the Eastman plot for overturning the Constitution in favor of Trump.

Luttig is one of the most prominent conservative jurists in America.  He worked with John Roberts as young lawyers in the Reagan Administration.  He was appointed by George H. W. Bush to lead Clarence Thomas through his Supreme Court confirmation hearings in 1991.  He was then appointed by Bush to the U.S. Court of Appeals for the Fourth Circuit in 1991, serving until 2006, when he resigned to become general counsel for Boeing, until his retirement in 2019.

In the days before the January 6th certification of Biden's Electoral College victory, Eastman and Trump were pressuring Vice President Pence to accept Eastman's legal theory for overturning the election by having the Vice President refuse to certify the electoral votes in some of the states won by Biden, or having the Vice President ask the Republican-controlled legislatures in those states to consider selecting Trump electors and thus overturn the popular election of Biden.  Pence's legal team advised him that this was unconstitutional, because the Vice-President's role in certifying the Electoral College vote was only ceremonial, and that he did not have the constitutional power to overturn a presidential election.  On the evening of January 4th, Pence's legal team contacted Luttig to ask him to act as an outside legal expert, and he was emphatic in saying that there was not constitutional basis for Eastman's theory.  This was particularly remarkable because Eastman had been one of Luttig's former law clerks.

On the morning of January 5th, Pence's legal team contacted Luttig again and said that Pence needed help to support his resistance to Eastman's plot.  Luttig responded by writing a Twitter thread arguing that there was no constitutional support for Eastman's legal theory.  On January 6th, Pence quoted this in his public letter explaining why he was refusing to accept Eastman's proposal for overturning the election.  On January 7th, Pence personally called Luttig to thank him for his help.

Eastman's legal theory was based partly on what has been called the "independent-state-legislature" theory (ISL).  Luttig has said that "there is literally no support at all in the Constitution" for this theory, because it is "antithetical to the Framers' intent, the text, and the Constitution's fundamental design and architecture."

ISL is based on an unusual interpretation of two clauses in the Constitution.  Article I, Section 4, clause 1 reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  Article II, Section 1, clause 2 reads: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  

Proponents of ISL say that these provisions give the "Legislature" of each State absolute power over Federal elections to Congress and the Presidency, a power that is so absolute that it cannot be limited by anything in state law or even in the state constitution.  Consequently, Republican-controlled state legislatures in 2020 had the power to overturn Biden's popular vote win in their States by appointing Trump electors to the Electoral College.

Another consequence of the independent state legislature theory is that a state legislature has absolute power to engage in partisan gerrymandering in redistricting its congressional districts free from any limits by state constitutional law.  So, for example, in North Carolina, the Republican-controlled legislature drafted new congressional district maps in 2021 that gave an advantage to the Republican Party in ten seats and to the Democrats in four.  Multiple lawsuits were filed against the Republican leaders of the North Carolina legislature claiming that the maps were so partisan gerrymandered as to be unconstitutional.  The North Carolina Supreme Court has held that the maps are unconstitutional.  A special master team of outside experts were assigned to create new maps, which were accepted by the courts.  

The Republican leaders of the legislature have appealed the case to the U.S. Supreme Court, arguing that under the independent state legislature theory, the North Carolina legislature has absolute power over congressional districting that cannot be constrained by the state constitution.  The U.S. Supreme Court has granted review, and oral arguments are scheduled for December 7, 2022 in the case of Moore v. Harper.  Many observers of the Court are expecting that the conservative Republican majority on the Court (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) will rule in favor of the independent state legislature theory in this case.

Luttig has joined this case as a co-counsel with Neal Katyal as the counsel of record arguing the case against the North Carolina legislative leaders.  Luttig has said that Moore v. Harper is "without question the most significant case in the history of our nation for American democracy."  He has also said that this is part of the Republican move towards the independent state legislature theory as part of a plot for overturning the elections in 2024.

Predictably, Eastman and the Claremont Institute have filed an amicus curiae brief in Moore v. Harper supporting the independent state legislature theory.  They attempt to answer the criticisms of the  ISL theory coming from various constitutional scholars, such as Vikram David Amar and Akhil Reed Amar.

The Claremont Institute's brief states its core idea bluntly: "when performing federal functions [such as drawing congressional district maps], the legislatures of the several states are not operating pursuant to state authority, but rather pursuant to federal authority, and cannot be constrained by anything in state law or even a state constitution to the contrary" (2).

On the face of it, this makes no sense.  How does federal authority establish the identity of a state legislature?  Surely, what counts as a state legislature is defined by a state constitution and thus subject to the limits set down in that constitution.

If you read the brief, you will see that it nowhere cites any evidence for this theory in the American Founding.  On the contrary, as Amar and Amar point out, throughout the Founding period, it was assumed that the establishment and legitimacy of a state legislature depended on a state constitution as an expression of popular consent to government; and thus every state legislature was subject to constitutional limits.

You will also see that the Claremont brief would require the Supreme Court to overrule all of the previous decisions of the Court that deny the ISL theory.  If you compare the Claremont brief and the paper by Amar and Amar, you will notice that never in the history of the U.S. Supreme Court has a majority of the justices endorsed the ISL theory.  In Bush v. Gore (2000), three justices (Rehnquist, Scalia, and Thomas) did seem to endorse ISL in their concurrence with the majority.

You should also notice that the Claremont brief is totally silent about a previous Supreme Court decision about partisan gerrymandering in North Carolina--Rucho v. Common Cause (2019).  As Amar and Amar point out, the majority opinion in this case written by Chief Justice Roberts rejected the independent state legislature theory by arguing that voters in the states can approve constitutional amendments that prohibit partisan gerrymandering, and these constitutional limits can then be enforced by the State Supreme Court (see Amar and Amar, 35).  Remarkably, all five of the conservative Republican justices in 2019 signed onto this opinion!  The Claremont brief is careful to hide this.

I will be interested to see what happens at the oral arguments for Moore v. Harper on December 7th, and whether we see any hints that the Eastman/Claremont Institute position is going to win out.

Trump's Chimpanzee Politics in the Ohio Senate Race: Tim Ryan Emasculates J. D. Vance

 I have written about Donald Trump's chimpanzee politics.  Recently, we have had an excellent illustration of how to counter Trump's alpha male theatrics.  An alpha male cannot rule by himself, he needs the support of beta males.  But then beta males are vulnerable to the charge that they are . . . only beta males servile to the alpha male.

Tim Ryan is a Democrat running for the U. S. Senate from Ohio.  Normally, Ohio would seem to be Trump Country.  And once Trump endorsed J. D. Vance for the Senate, that would seem to be enough for Vance to defeat Ryan.  

But a few weeks ago, Trump held a rally in Ohio, where he bragged that while Vance had criticized him in 2016, he sought Trump's endorsement in 2022.  Now, he's "kissing my ass," Trump gloated.  Vance then walked onto the podium to praise Trump.  In a debate with Vance, Ryan reminded the audience of this.  What kind of a man would give up his dignity to win Trump's endorsement, he asked.  He observed that no one he knows from his high school class would have done this--to emasculate himself in becoming subservient to a higher ranked male.  What Ohio wants, Ryan proclaimed, is not an ass-kisser but an ass-kicker.

Notice that this has nothing to do with policy debates.  It's pure chimpanzee politics--who's the dominant male, who's the beta male.  Ryan simultaneously identified Vance as the beta male and himself as alpha--as an ass-kicker not an ass-kisser.

This is a dramatic illustration of the evolutionary psychology of the Democratic strategy for subverting Trump's rhetoric of chimpanzee politics.  A narcissistic alpha male like Trump cannot prevail without the support of submissive beta males, but the very submissiveness of these beta males exposes them to the humiliation of being toadies.

Indigenous Americans Introduced Slavery to America. European Liberalism Abolished Slavery.

The second Monday in October has long been celebrated as Columbus Day.  But in recent years, many people have insisted that this day should be celebrated as Indigenous Peoples Day or as Native Americans Day.  On Monday, even South Dakota Governor Kristi Noem recognized Native Americans Day.  The justification for this is that Columbus should be seen as the villain who initiated the European conquest of the indigenous people of the Western Hemisphere, while the Native Americans should be seen as the heroic victims of colonial exploitation and enslavement.  A similar kind of rhetoric runs through the "1619 Project" of The New York Times, with the claim that American history began in August of 1619, when 20 African slaves were sold to the governor of the Virginia colony: American history is a history of slavery that exposes the fraudulent hypocrisy of the American principle of equality of rights in the Declaration of Independence.

This rhetorical argument of anticolonialism and antiracism is partly true and partly false.  It is partly true because the European settlers of the New World were indeed brutal oppressors of the Native Americans and the African slaves.  It is partly false, however, because it ignores two historical facts about slavery in the New World.  First, it ignores the fact that Indigenous Americans had enslaved one another before the Europeans arrived in the New World.  Second, it ignores the fact that Europeans debated the justice of slavery, and the European liberal principle of equal human liberty led eventually to the abolition of slavery.

In his book--The Other Slavery: The Uncovered Story of Indian Enslavement in America (Houghton Mifflin Harcourt, 2016)--Andres Resendez has shown how Indigenous slavery arose in every part of the Western Hemisphere before the arrival of the Europeans and before the establishment of African slavery.  For example, the Maya and the Aztecs enslaved captive people who could be used for human sacrifice.  The Iroquois waged war to enslave captives.  And the native Americans along the North Pacific Coast of North America enslaved people captured in war.  Resendez has written a short summary of his book for a Smithsonian Institute publication.  What this shows is that the natural human propensity to tribalistic xenophobic/us-against-them thinking has throughout human history supported the enslavement of those identified as out-group members.

But even if the history of slavery manifests a natural inclination to exploitation and social parasitism, the human resistance to slavery manifests a natural moral sense that opposes such exploitative parasitism.  Throughout the history of the debate over slavery--from Aristotle to Bartolome de Las Casas, to John Locke, to Thomas Jefferson, to Charles Darwin, to Abraham Lincoln--one can see the natural moral sentiments expressed as a joint product of emotional capacities for feeling moral passions like sympathy and anger and rational capacities for judging moral principles like kinship and reciprocity.  (I wrote about this in chapter 7 of Darwinian Natural Right.)

In this debate, we can see the fundamental incoherence in slavery, which requires treating some human beings as if they were not human, as if enslaved human beings do not feel the natural human resistance to exploitation.  Aristotle pointed to this incoherence in his account of natural slavery as distinguished from conventional slavery.  Any careful reader of Aristotle can see that slavery as actually practiced is purely conventional (based on force) rather than natural (based on justice).  Bartolome de Las Casas saw that, and it supported his argument that the native American Indians could not be natural slaves, and therefore their enslavement by the Spanish was naturally unjust.  The American Indians were equally entitled to their human rights because they were equal in their humanity as members of the human species.  He made this argument before the Spanish judges of the Royal Council convoked at Valladolid in 1550.  The Spanish Crown prohibited the enslavement of the Native American Indians.  But Spanish colonists were able to evade this prohibition through legal arrangements such as encomiendas, which was a disguised form of slavery.

As I have indicated in a series of posts, the Lockean liberal principle that all human beings were naturally equal in their liberty supported the self-evident truths of the Declaration of Independence that rendered human slavery unjust, which led finally to the abolition of slavery in America through Lincoln's Emancipation Proclamation and the Thirteenth Amendment.

The Decline of Monarchy and the Evolutionary Symbolic Niche Construction of Bourgeois Culture

Queen Elizabeth at Buckingham Palace After Her Coronation in Westminster Cathedral in 1953

THE DECLINE OF MONARCHY

On pages 16-17 of the paper by Gerring et al., you can see graphs for "Monarchies and Republics in Europe, 1100-2005" and "Monarchies and Republics in the World, 1700-2005."  Here "republic" means simply "nonmonarchy."  The primary alternatives to monarchy were "personal dictatorships" and "corporate forms of government" (with public assemblies that were either democratic or oligarchic).  What is striking in both graphs is how for most of this history, the number of monarchies far exceeds the number of nonmonarchies; but then around 1900, the number of nonmonarchies surpasses the number of monarchies.  Why?

If King Charles III of Great Britain were to declare that he was going to reclaim all of the monarchic power once held by Charles I and Charles II in the seventeenth century, this would undoubtedly be rejected, and even ridiculed, by the British Parliament and the British people.  Why?

Here's the answer from Gerring et al.: "We have argued that monarchy solved the primordial coordination problem of politics in the premodern era.  Where societies are disconnected, a focal point is needed and monarchy was, for millennia, a readily available heuristic for establishing legitimate government.  In the modern era, as societies became more interconnected, monarchy's advantage disappeared.  With societies now highly mobilized and interconnected, monarchy's inability to integrate the masses into politics became a defect rather than an asset" (17).  According to Gerring et al., the primary reason why societies today are so "highly mobilized and interconnected" is the development of mass communications--the printing press, newspapers, national postal systems, the telegraph, radio, television, and the internet.  In particular, they show how the diffusion of radios beginning in the 1920s is associated with the decline of monarchy in the modern era (23-26).

But this raises some obvious questions that are not answered by Gerring and his colleagues.  What explains the development of mass communications?  And what was it about the content of mass communications that subverted monarchy?

Does it make any sense to say that "monarchy's inability to integrate the masses into politics became a defect rather than an asset"?  Why can't monarchy use modern mass communication to glorify monarchy among the masses?

Modern mass communication is a product of modern science and technology.  What is it about modern culture that has promoted science and technology?

Monarchy depends on a perception of society as a hierarchy.  Patricia Crone observes: "Pre-industrial society was commonly envisaged as a hierarchy (chain of command) in which everyone knew his proper place, enjoyed the appropriate rights and duties and obeyed his superiors, receiving obedience from his inferiors in his turn: all in the last resort obeyed the monarch, through whom human society was slotted in with the divine" (115).  This hierarchy was a very narrow pyramid--with a ruling elite at the top that was about 1-2% of the population and peasants at the bottom who were about 80-90% of the population.  What is it about modern culture that has undermined this premodern perception of society as a rigid hierarchy?

One possible answer to all of these questions is suggested by Crone's book, although Crone does not explicitly state it: modernity has dissolved the monarchic culture of hierarchy by promoting the evolutionary symbolic niche construction of the bourgeois culture of equal liberty.

THE EVOLUTIONARY BIOLOGY OF SYMBOLIC CULTURE

According to Crone, human beings are unique in their capacity and need for culture: "Human beings are distinguished from other animals by their inability to survive without culture, that is information which is not transmitted genetically and which thus has to be learnt afresh by every new generation.  (For example, the capacity to reproduce is genetically transmitted, but kinship systems, courtship etiquette and marriage rules are elements of culture; the capacity to utter noises is genetically transmitted, but languages have to be learnt; so do social and political institutions, agriculture, pottery-making, counting, writing and so on.)" (94).

The social organization of other animals is built into their genes, and thus every species of social animal has its own genetically determined social structure that does not change.  "The human animal is of course genetically programmed too.  However, its programme for social organization is deficient (and to some extent even counter-productive).  The programme does little but instruct its bearer to learn, or in other words to acquire culture with which to supplement (and in some cases even to suppress) such specific instructions as it retains.  Without doing so, the species simply could not survive; doing so, it can survive almost anywhere on earth and even, for limited periods, outside it.  Culture is thus the species-specific environment of Homo sapiens.  Living in accordance with nature is an attractive idea, but in the human case it actually means living with culture" (94-95).

Crone explains human culture as a construct of the human mind that can be imagined but not directly observed.  Through cultural constructions, human beings create world views--that is, theoretical constructions of the world in the mind.  World views can be prescriptive, in that they provide a valuation of the world--telling us what to do and not do.  These prescriptive world views can be religious, ideological, philosophical, or moral.  Religious world views differ from the others in that religion explains the world with reference to supernatural beings rather than abstract principles or impersonal laws.  Religions have been more popular in history than the other atheist or non-theist world views, because "supernatural beings endowed with human feelings are easier to understand, love and obey than abstract concepts."  

In contrast to these prescriptive world views, Crone argues, modern science provides a purely descriptive world view--a theoretical construction of the world that explains the world without telling us what to do (142-43).  She does not answer the obvious objection to this claim--that modern science must be prescriptive (in other words, ethical) because the practical commitment to the life of science implies that this is a good life.  The success of modern science and its promotion of modern mass communications would have been impossible without the modern ethical commitment to science as a human good.

Crone identifies two functions of culture that are best served by religious world views: the drawing of socio-political maps and providing meaning.  The first is important because since human beings are not genetically programmed for any specific kind of socio-political order, they need to culturally construct a conception of good social and political order as an invention of the human imagination.  Crone offers a simple, and comical, illustration:

"Nothing in my genetic equipment tells me that I should milk cows or be forbidden to do so; you may force me to milk them, but if that is all there is to it, I may beat you up or run away the moment you are busy drinking; and though you may be in league with others today, you may fall out with them tomorrow: common interests are highly unstable, as anyone familiar with the phenomenon of intrigue should know.  By contrast, if you devise a religion which says that the gods want my kind to milk and your kind to stick together in enjoyment of authority, on the grounds that my kind descend from a cow whereas you and yours descend from a god, then you may hope to create a society which remains stable not only during our lifetime, but also, and crucially, when social roles have to be transferred to the next generation: the religion would both justify and solidify the social order" (147).

The second function of culture--providing meaning--is served when a religious world view justifies the socio-political order by showing how it fits into God's plan for the world and for the human beings who obey His laws.  As Crone indicates, religion justified monarchy in pre-industrial societies by identifying the king as the link between the divine and the human worlds.  This justified the premodern hierarchical ranking from high to low: from God to King to peasants.

The Crown, Orb, and Sceptre of the Monarch on Queen Elizabeth's Coffin

At the funeral for Queen Elizabeth II, we saw the symbols of this link to the divine in the monarchy.  These are the same symbols displayed at Elizabeth's coronation in 1953.  The Sceptre and Orb were first created for Charles II's coronation in 1661, which was the restoration of the monarchy that had been overthrown in 1649 with the beheading of Charles I and later the establishment of a Republic.  The Sceptre represents the Crown's power and governance.  The Orb is a golden jeweled globe with a gem-encrusted cross symbolizing that the monarch's power is from God.  At the coronation of King Charles II next year, we will see him receiving this same Crown, Orb, and Sceptre from the Archbishop of Canterbury.  For Elizabeth's coronation in 1953, William Walton composed a march for orchestra entitled "Orb and Sceptre."

But now these seventeenth-century symbols of the divine right of monarchs have been reduced to a purely ceremonial role in a modern society that no longer believes that monarchs rule by divine right.  Most of us certainly don't believe that there is any divinely ordained monarchic hierarchy in which most human beings must live as peasants under the dominance of a tiny ruling elite.  We believe that all human beings are created equal and endowed by their Creator with equal rights to life, liberty, and the pursuit of happiness, and that governments are established by consent of the governed to secure those individual rights.  In other words, most of us believe in a social and political order of liberal democracy justified by a culture of bourgeois virtues, in which most human beings belong to a bourgeois middle class, and all human beings are regarded in principle as equally free.

Crone correctly sees the importance of the rise of bourgeois culture in explaining the transition from pre-industrial societies to modern industrial societies.  Pre-industrial societies were based on the fundamental idea that there is a natural, cosmic, or divine hierarchy by which one monarch and few members of a small elite group are born with the authority to rule over the great mass of human beings, mostly peasants, who must submit to being pushed around and exploited without complaint.  Bourgeois ethics denies that idea by asserting that all human beings are naturally equal in their liberty, and that they cannot rightly be ruled by anyone else without their consent. Crone is mistaken in thinking that this bourgeois culture--like all culture--transcends our evolved human nature as social and political animals, and thus cannot be explained by evolutionary biological science.

As I have argued in previous posts, human beings are not the only cultural animals, but they probably are the only animals with symbolic culture, who use language to create social institutions through symbolic niche construction.  Human beings do this through a Lockean social contract by which people consent to establish institutions by agreeing to constitute those institutions.  We do this through what John Searle calls a Declaration of Status Functions: Let X count as Y in the context of C.  

Let this twenty-dollar bill count as money in the U.S. currency system.  Or let Joe Biden count as president of the United States because he was elected through the electoral system established by the Constitution.  

Or let Prince Charles count as King Charles III because he is the oldest son of the dead queen?  But today the British understanding of the legitimacy of the monarchy differs from that which prevailed during the monarchy of Charles I and Charles II.  The British people no longer agree to see the monarch as the ruling sovereign by divine right at the top of a hierarchy with most people as obedient peasants at the bottom.  Now the British people agree that Parliament is supreme and that the Prime Minister will act as the chief executive, so that the monarch will be the ceremonial head of state but not the ruling sovereign.  And the British people see themselves not as obedient peasants but as human beings who are in principle naturally free and equal, who obey only that government to which they have consented.

THE BOURGEOIS VIRTUES?

What we see here is what Patricia Crone and other historians call the "rise of the bourgeoisie"--the symbolic niche construction of bourgeois liberty and equality that constitutes the liberal culture of the modern world, as set against the illiberal culture of the pre-modern world (see Crone, Pre-Industrial Societies, 21-24, 186-87, 195-97, 206).

This all began in the 18th century with Adam Smith's liberal idea--"allowing every man to pursue his own interest his own way, upon the liberal plan of equality, liberty, and justice" (Wealth of Nations, Liberty Fund, 664, 687).  In previous posts, I have identified this as what Deirdre McCloskey calls the "Bourgeois Revaluation," which can be expressed as a Searlean status function: Let the bourgeois life count as honorable in a commercial society.  As McCloskey says, this bourgeois liberalism can be understood as "reinstating a pre-agricultural equality" by establishing an equal dignity and liberty for ordinary people--including an "equality of genuine comfort"--that restores the equal autonomy of individuals enjoyed in hunter-gatherer bands for hundreds of thousands of years until the establishment of rigid class hierarchies in agrarian state societies (Bourgeois Equality, 631-39).  This is a restatement of John Locke's argument for liberalism as the restoration of the natural liberty and equality of the state of nature.

McCloskey overstates her case, however, when she argues that the bourgeois virtues include all of the traditional seven virtues--four pagan virtues (prudence, temperance, courage, and justice) and three Christian virtues (faith, hope, and charity).  In Bourgeois Equality (xxi, 423) and Bourgeois Virtue (508), she says that the bourgeois virtues are "the seven virtues exercised in a commercial society," and "the seven principal virtues of pagan and Christian Europe were recycled as bourgeois."  But she cannot quote Adam Smith or anyone else saying this.

McCloskey can point to Smith's account in The Theory of Moral Sentiments of the virtues of prudence, temperance, courage, justice, and benevolence (part of Christian charity?).  But she cannot find any statement by Smith that these are the bourgeois virtues of a commercial society.

Moreover, she cannot explain why Smith identifies admiration of the rich as "the corruption of our moral sentiments."  In her one-paragraph comment on Smith's chapter against admiring the rich, she observes: "That the Waltons are rich does not make them admirable people, despite the undoubted commercial savvy of Sam and his brother Jim" (Bourgeois Equality, 564).  But this contradicts her claim that the rhetoric of the bourgeois virtues promotes "the admiration for and acceptance of trade-tested betterment" (564).  She also cannot explain why Smith in the Wealth of Nations never identifies businesspeople as virtuous, and why he refers only once to "virtues," and it's a lament that the "laboring poor" in a commercial society suffer a decline "in intellectual, social, and martial virtues" (WN, 782).

Recently, Daniel Klein has offered a much more modest--and more defensible--version of McCloskey's argument.  Using the Google Books Ngram Viewer, Klein shows that after about 1740 people for the first time started writing about "honest merchants" and "honest traders," terms that had almost never appeared before 1740.  For the first time, the profession of merchants and traders was regarded as "honest."  Klein traces this idea to the jurisprudence of Hugo Grotius and others who saw that those who made money through honest dealings--that is, voluntary transactions--had a property right to their wealth that should be protected by law.

But unlike McCloskey, Klein distinguishes honest dealings from virtuous conduct.  Being honest is a necessary but not sufficient condition for being virtuous.

Klein quotes from Alexis de Tocqueville's chapter in Democracy in America on "Why Americans Consider All Honest Callings Honorable" (part 2, chap. 18).  While in aristocracies, "it is not exactly work itself which is despised, but work with an eye to profit."  By contrast, in America, "equality makes not only work itself, but work specifically to gain money, honorable."  "In the United States professions are more or less unpleasant, more or less lucrative, but they are never high or low.  Every honest profession is honorable."

Thus, a bourgeois life in a modern liberal society is regarded as honest and honorable.  But it does not necessarily display all the virtues.  The modern adoption of this idea of bourgeois dignity is enough to explain the Great Enrichment of the past 200 years that has created the world in which most of us live today: the richest, healthiest, freest, and most populous world that human beings have ever experienced in their 200,000 years of evolutionary history.

The Evolutionary Rise and Decline of Monarchy

Recently, many of us have been fascinated by the stately ceremonies surrounding the death of Queen Elizabeth II and the succession of King Charles III.  This should stir us to think about the history of monarchy.  

Why is it that for at least 5,000 years, beginning with the first state-like polities in Mesopotamia, monarchy was the predominant form of government around the world?  And why is it that over the past 250 years, there has been a dramatic decline in the number of monarchies?  Today, there are few monarchical governments in the world--Bahrain, Bhutan, Brunei, Jordan, Kuwait, Liechtenstein, Monaco, Morocco, Oman, Qatar, Saudi Arabia, Swaziland, and United Arab Emirates. 

The British monarchy is not truly monarchical because the authority of the monarch and the royal family has become purely symbolic, with very little effective power for ruling.  Charles I and Charles II were real monarchs with ruling sovereign powers.  Charles III is the ceremonial head of state, but the executive and legislative powers of British government belong to Parliament and the Prime Minister.  Strictly speaking, the United Kingdom is not a monarchy but a parliamentary democracy.   What explains this remarkable rise and decline of monarchy in the political history of the world?

To answer these questions, we need a historical dataset that reaches far back in the deep history of states around the world, and we need a plausible theory that can suggest testable hypotheses to be judged by how well they are confirmed by the data.  One place to look for this is the work of John Gerring and his colleagues (Tore Wig, Wouter Veenendaal, Daniel Weitzel, Jan Teorell, and Kyosuke Kikuta) in their paper on "Why Monarchy? The Rise and Demise of a Regime Type."  A short version of the paper has been published in Comparative Political Studies (54 [2021]: 585-622).  A long version is available online.

Gerring and his colleagues argue that from the appearance of the first states in the ancient world to the beginning of the modern era about 250 years ago, monarchy was the most common political regime because it was the most efficient solution to the problem of selecting leaders to coordinate social order in large societies where people are isolated from one another.  In the modern era, however, improvements in the technology of communication--for example, the printing press, newspapers, national postal systems, the telegraph, radio, television, and the internet--made it easier for people in large societies to communicate with one another and thus to mobilize a mass public for social coordination, which allowed elites to develop new systems of rule that did not need a central locus of sovereignty in a monarch.

Gerring et al. have been influenced by their reading of Patricia Cone's Pre-Industrial Societies: Anatomy of the Pre-Modern World (London: Oneworld Publications, 2015).  Crone uses the word "pre-industrial" as shorthand for "pre-industrial of the civilized kind" (2-11).  "Pre-industrial" means prior to the Industrial Revolution that began sometime early in the 19th century in northwest Europe.  The "civilized kind" means a society that is based mostly on agricultural production rather than hunting and gathering, which also has the formal governmental institutions of a "state."  Consequently, the history of the pre-industrial societies of the civilized kind stretches from the first agrarian states in ancient Mesopotamia (from around 3,500 BCE) to the modern industrialized states that emerged around 1800.  

This excludes the stateless societies of this period--such as the nomadic tribal societies.  And it's notable that as you look at the global maps in the Gerring paper, that up to 1700, most of the world was stateless, where people lived as "barbarians" without state-like governments.  Crone points out that even within states there were often rugged areas where the state rulers could not penetrate, and people lived in stateless societies.  And, of course, through most of human evolutionary history, human beings lived in hunter-gatherer bands without states.  Today, however, every piece of land around the world is under state rule, with the exception of Antartica, which is defined as an international territory by a treaty between states. 

The pre-industrial world not only lacked modern industrial production, it also lacked the modern means of communication and transportation.  People, goods, and news travelled slowly.  Consequently, in large societies, it was impossible to achieve much economic, cultural, or political integration.  Crone observes that "the vast majority of people continued to live in more or less self-sufficient villages with more or less autonomous cultures of their own, a fact that rendered the political unity of pre-industrial states precarious" (47).

As a result, forms of government like democracy that required mass participation were possible only in small societies (like the Greek and Roman city-states).  In large societies, the coordination of activity by the state required the concentration of authority in the hands of a few, and ultimately in a monarchic ruler.  This explains the argument of political philosophers like Montesquieu that popular government was possible only in small republics.  

"Typically, then," Crone explains, "pre-industrial states were monarchies in which power was exercised through a small ruling elite.  They were monarchies as opposed to oligarchies, partly because the elite could not function without an ultimate arbiter (and was bound to produce one through its competition for power where none existed), partly because one man elevated above all others was a potent symbol of the community over which he presided: its members often regarded him as a common link with the divine" (49-50).

To test this theory, Gerring and his colleagues begin with a strict definition of monarchy as a regime with an executive office that is (1) hereditary, (2) held by a single individual, (3) endowed with life tenure and (4) has sovereign power in ruling the affairs of state.  (The British monarchy satisfies the first three criteria but not the fourth.)  In their historical dataset, state-like governments that satisfy all four criteria are coded as "monarchies," while all the others are coded as "republics."  

They can then show from their historical dataset that most of the state-like governments in the premodern era were monarchies, while in the modern era, most are republics.  They can also show evidence for improving technologies of communication in the modern era.  For example, they point to the spread of radio in the early part of the twentieth century as one way that leaders in large societies could communicate directly with people who otherwise would be isolated from one another.

But while I find all of this persuasive, it seems to me that Gerring et al. have not properly identified the ultimate evolutionary causes of liberal modernity, which brought about the decline of monarchy and the rise of modern liberal democracy.  As important as improving technologies of communication might be, they can be understood as the effect of a deeper cause--the evolution of modern bourgeois culture as Lockean liberal symbolic niche construction.  I will explain that in my next post.

The New York Attorney General Has Refuted the Rhetorical Myth of Trump as the Self-Made Billionaire

In a previous post, I applied Aristotle's Rhetoric to the study of Donald Trump's campaign rhetoric in 2016.  I indicated that Trump's primary rhetorical technique was the argument from the character of the speaker that stressed the prudence or practical judgment of Trump as a wildly successful businessman, which would allow him as president to Make America Great Again.

One can see this argument in his campaign speeches and in his campaign book Great Again: How to Fix Our Crippled America (2016).  It can be put into the form of what Aristotle calls an enthymeme:

Major premise: Because of stupid politicians, America no longer wins; and America will not win again until a successful businessman who knows how to win is elected president.

Minor premise: Donald Trump is unique in his business success and his prudence in knowing how to win, because he is a self-made multi-billionaire.

Conclusion: Therefore, Americans need to elect Trump president.

In that previous post, I challenged the minor premise by pointing to the evidence that Trump's business career shows many failures from his imprudent decisions, that he was saved from ruin by his father's life-long transfer of money to him, and so he is not the self-made billionaire that he claims to be.

Now, we have a legal filing by Letitia James, the Attorney General of the State of New York, that also challenges that minor premise by showing that Trump has fraudulently overestimated the value of his wealth, which further undermines his claim to be an extraordinarily successful businessman.

Perhaps the most flagrant example of Trump's fraudulent exaggeration of his wealth is his falsely inflated appraisal of the value of his apartment in Trump Tower in New York City (see pages 75-84 of the filing).  In 2015 and 2016 (during his first presidential campaign), Trump signed his Statements of Financial Condition, which included a fraudulently inflated value for his apartment of $327 million.  This is amazing because in the history of real estate sales in New York City, no apartment has ever sold for much more than $100 million.

This value of $327 million was based on an assessment of $10,900 per square foot multiplied by 30,000 square foot of space.  There are two problems with this.  First, there is no evidence that $10,900 per square foot is a fair market price for an apartment like Trump's.  The second problem is even more obvious:  Trump's apartment is only 10,996 square feet, not 30,000!

This clearly was an intentional and deliberate fraud because many documents within the Trump Organization signed by Trump accurately state the square footage for apartments in Trump Tower.  Moreover, Trump has said that he was regularly involved in the planning and construction of his apartment.

In the deposition taken by the Attorney General's office, Trump was asked about the fraudulent valuation of his apartment.  He was asked: "When you directed the use of that square footage to value your triplex, you knew that the 30,000-square-foot figure was false.  Corrrect?"  Trump answered by invoking his Fifth Amendment privilege against self-incrimination.

In the 215 pages of the Attorney General's filing, there is detailed evidence that the fraudulent evaluation of Trump's apartment was only one of over 200 false valuations.  This false valuation of Trump's wealth benefited him in two ways.  First, it was financially beneficial because it allowed him to secure better deals from lenders and insurers than would have been possible if the true valuation had been known.

James's filing estimates that the financial benefit from the fraud was at least $250 million, and that is the basis for James's asking the court to impose a fine of $250 million as a "disgorgement" that deprives the wrongdoer of illegal benefit (4, 12, 18).  James is also asking the court to prohibit Trump and his family from doing business in New York State for five years.  James indicates that there were violations of state and federal criminal laws that would expose Trump to criminal charges.

There was also a rhetorical benefit to Trump's fraudulent valuations of his wealth, because this supported the minor premise of his campaign enthymeme--that he was a wildly successful businessman as measured by his multi-billion dollar wealth.  As is indicated in the filing, Trump repeatedly instructed the people in his organization to increase the estimates of his net worth.  For many years, he complained that he was not ranked high enough on the Forbes magazine ratings of the wealthiest people in the world.  Trump personally took Forbes editors on tours of Trump Tower and his apartment and argued that they were underestimating his wealth.  

But then in May of 2017, Forbes published an article entitled "Donald Trump Has Been Lying About the Size of His Penthouse," and Trump was enraged.  This was not just a blow to his narcissistic ego but also an assault on his rhetorical argument for his election in 2016, which depended on his claim that he had earned enough business success to be one of the richest human beings on earth.

His 2016 campaign book Great Again ends with an "About the Author" section that gives a story of his business career in 16 pages, which begins: "Donald J. Trump is the very definition of the American success story, continually setting the standards of excellence while expanding his interests in real estate, sports, and entertainment.  He is the archetypal businessman--a deal-maker without peer."  

This story in the book concludes with a long list of 70 "properties" said to be "owned and/or developed and managed or licensed by Donald J. Trump," which includes everything from Trump Tower and the Estates at Trump International Gold Club in Dubai to his Boeing 757 jet and 3 Sikorsky 76 Helicopters.

Look, Reader, at this stunning list of Donald Trump's luxurious properties!  Surely these examples of his pile of wealth prove that he's the only person who can lead you as president and Make America Great Again.

James's filing makes it clear that much of this appearance of great wealth depends on fraudulent evaluations of its true worth.  Moreover, as I argued in my previous post, even the true worth of Trump's wealth was not earned by him, because most of it came from his father.

My Essay on Locke in America in "Law and Liberty"

The Liberty Fund's "Law and Liberty" blog has just published my essay on Claire Rydell Arcenas's America's Philosopher: John Locke in American Intellectual Life.

The State of Nature in the American Revolution: Confirming Locke, Denying Hobbes

In his Second Treatise, John Locke identifies five ways in which the state of nature arises in human history.  First, when our hunter-gatherer ancestors lived without formal institutions of government, they were living in a state of nature, in which all human beings are equally free; and during Locke's lifetime, he saw that the foraging bands of native Americans were still living in such a state of nature (ST, 49, 101-111).  

Second, people living under a government can choose to leave that country, and thus revert to a state of nature, and then they can emigrate either to another society with a ruling government or to a vacant part of the world where they can set up a new government (ST, 113-18, 121).  

Third, whenever people living under a government find themselves under the immediate attack of aggressive individuals, and there is no way to call in the protection of government, then the people under this threat have the natural right to momentarily enter the state of nature, so that they can reclaim "the executive power of the law of nature" to punish those who violate that law of nature, which includes the natural right of killing in self-defense (ST, 19).  

Fourth, whenever a government is dissolved, the people revert back to the state of nature, and they have the right to establish a new government by consent; this includes the dissolution of government by popular rebellion against a government that has become despotic (ST, 211-43).

Fifth, all the rulers of independent governments around the world are in a state of nature in their international relations because there is no world government over them (ST, 14).

In all five of these ways, we can see Locke's state of nature in the American Revolution.  Much of the evidence for this is conveniently collected in a book by Mark Somos--American States of Nature: The Origins of Independence, 1761-1775 (Oxford University Press, 2019).

1.  THE ORIGINAL STATE OF NATURE

First of all, many American colonial thinkers explicitly recognized that many of the Native American Indians were living in a state of nature as described by Locke.  As early as 1725, John Bulkley, a prominent clergyman and surgeon in colonial Connecticut, quoted from Locke's account of the state of nature in the Second Treatise and argued that the "Aborigines of this Country" were living in this state of nature.  Bulkley also followed Locke's lead in applying Jose de Acosta's Natural and Moral History of the Indies (1604) to the Native Americans.  (Bulkley's writing can be found in Exploring the Bounds of Liberty: Political Writings of Colonial British America from the Glorious Revolution to the American Revolution, eds. Jack P. Greene and Craig B. Yirush [Liberty Fund, 2018], I: 595-627.)

In 1768, the Massachusetts House of Representatives sent a letter to their colonial agent in London, which argued that the colonists had a natural right to property, so that the British Crown could not take their property without their consent.  James Otis and Samuel Adams were probably the primary authors of this letter.  In one passage, they wrote:

"Property is admitted to have an existence, even in the savage state of nature.  The bow, the arrow, and the tomahawk; the hunting and the fishing ground, are species of property, as important to an American savage, as pearls, rubies, and diamonds ae to the Mogul, . . . . And if property is necessary for the support of savage life, it is by no means less so in civil society" (quoted in Somos, 68, n. 29).

Particularly interesting here is the recognition that the American Indians had a natural claim to property in their hunting and fishing grounds.  Bulkley had argued that the Indians did not own the land on which they hunted and fished, because they had not invested their labor in the land by cultivating it for agriculture; and consequently, the colonists in Connecticut could claim the land that they had appropriated for farming.

Remarkably, the freedom that the American Indians enjoyed in their state of nature was so attractive that many of the English and French settlers chose to become Indians--"White Indians" they were called.  Hector de Crevecoeur observed that "thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become Europeans!"  Some of the Europeans who became Indians said that they did this because they had "the most perfect freedom."  In his study of the White Indians, historian James Axtell suggested that "it may well be that the adults who chose to become Indians did so for some of the reasons that many of their countrymen turned to revolution" (The Invasion Within: The Contest of Cultures in Colonial North America [Oxford University Press, 1985], 302-303, 327, 377).

In applying the Lockean understanding of the state of nature to the American Indians, the American colonists saw that in that state of nature all men were equally free and independent, in that no man could rule any other man without that man's consent.  They saw that this natural equality of liberty did indeed apply to all men, including slaves, and to all women as well as men.  This radical conception of human equality of rights was clearly affirmed, for example, by James Otis in his 1761 speech in Paxton's Case and in 1764 in his Rights of the British Colonies Asserted and Proved.

2.  EMIGRATING TO THE STATE OF NATURE

Some of the colonists argued that it was this equal freedom in the state of nature that had drawn so many of the original European settlers to leave Great Britain and go to America, where they could revert to the state of nature.  This would illustrate what Locke identified as the second way in which people could enter a state of nature by leaving their native country to find freedom somewhere else.  For example, in 1765, Dennys Deberdt, who had just been appointed the colonial agent for Massachusetts in London, wrote a public letter that claimed that all the colonies, except Georgia and Nova Scotia, were settled by Englishmen fleeing oppression and seeking "civil and religious liberties," and that when they moved to America, "they were then in a state of nature, under no civil government, but what they form'd themselves."  Their colonial charters should therefore be understood as "compacts" with Britain to which they had freely consented.

3.  SELF-DEFENSE IN THE STATE OF NATURE

The revolutionary colonists also contended that once Great Britain violated those original compacts with the colonies and launched an attack on the rights of the colonists--their natural rights and their rights as Englishmen--the colonists could rightly invoke their natural right of self-defense in the state of nature, which was Locke's third way in which people could return to a state of nature.  The American colonists, however, expanded the individual right of self-defense to a collective right of the American people to defend their community against attack.

One of the clearest statements of this idea came some years after the Revolution in James Wilson's Lectures on Law (1790-1791):

"The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.  This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man; it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation--of his wife, of his parent, of his child, of his master, or his servant: nay, it extends to the person of everyone, who is in danger; perhaps, to the liberty of everyone, whose liberty is unjustly and forcibly attacked.  It becomes humanity as well as justice" (Works of James Wilson, ed. Robert Green McCloskey [Harvard University Press, 1967], 2: 609).

Thus, the people acting as a community could exercise their natural right of self-defense in defending their liberty from unjust attack.

The revolutionary colonists also protested against King George III's attempts to disarm the colonists as a violation of their natural rights and their rights as Englishmen.  That individuals have a natural right to momentarily enter a state of nature in defending themselves against attacks has been recognized by the U.S. Supreme Court as a natural right that is also a constitutional right.  This was most clearly stated in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), which ruled that cities and states that ban handguns have violated the natural right to keep and bear arms for self-defense, a natural right protected in the Second and Fourteenth Amendments.

In the McDonald decision, Justice John Paul Stevens wrote a dissent in which he argued that recognizing the right of individuals to carry handguns for self-defense is contrary to the state's monopoly on legitimate violence.  In support of this argument, he quoted from section 128 of Locke's Second Treatise, which speaks of the powers individuals have in the state of nature that they must give up when they enter civil society.  In the state of nature, a man has the power "to do whatsoever he thinks fit for the preservation of himself and others within the permission of the Law of Nature."  But when he joins a particular political society, he "gives up" this power that he had in the state of nature.  But here Stevens ignores what Locke says in explaining that a man "gives up" natural rights only "the better to preserve" them in a civil society, and that a man in civil society may kill a thief or anyone who acts as an aggressor threatening his life, in circumstances where there is no way to call in officers of the government for protection (ST, 18-19, 131).

4.  IN THE STATE OF NATURE AFTER THE DISSOLUTION OF GOVERNMENT

In 1774, the American colonists were divided by a debate between Patriots and Loyalists over the state of nature.  The Patriots believed that since the British imperial government over the colonies had been dissolved, the Americans had been thrown back into a state of nature, in which the American people had the natural authority to establish a new government to secure their natural rights.  The Loyalists believed that Parliament still had governmental authority over the colonies, and therefore the Americans were not in a state of nature, although there was a need to settle the American disputes with Parliament in a way that would preserve American liberty while maintaining Parliamentary rule over the colonies.

On September 5, 1774, the Continental Congress met in Philadelphia for the first time.  On the next day, they began their debates; and Patrick Henry of Virginia was the first to speak.  Here is what John Adams wrote in his Diary for that speech:

Mr. Henry. Government is dissolved. Fleets and Armies and the present State of Things shew that Government is dissolved. -- Where are your Land Marks? your Boundaries of Colonies.

We are in a State of Nature, Sir. I did propose that a Scale should be laid down. That Part of N. America which was once Mass. Bay, and that Part which was once Virginia, ought to be considered as having a Weight. Will not People complain, 10,000 People Virginians have not outweighed 1,000 others.

I will submit however. I am determined to submit if I am overruled.

A worthy Gentleman Ego near me, seemed to admit the Necessity of obtaining a more Adequate Representation.

I hope future Ages will quote our Proceedings with Applause. It is one of the great Duties of the democratical Part of the Constitution to keep itself pure. It is known in my Province, that some other Colonies are not so numerous or rich as they are. I am for giving all the Satisfaction in my Power.

The Distinctions between Virginians, Pensylvanians, New Yorkers and New Englanders, are no more.

I am not a Virginian, but an American.

Patriots like John Adams, Samuel Adams, and Roger Sherman agreed with Henry in arguing that they were in a state of nature, and that they would need to establish a new government.

On September 8, Joseph Galloway spoke for the Loyalists in denying that the colonists were in a state of nature.  Here is what Adams wrote in his Diary:

Mr. Galloway. I never could find the Rights of Americans, in the Distinctions between Taxation and Legislation, nor in the Distinction between Laws for Revenue and for the Regulation of Trade. I have looked for our Rights in the Laws of Nature -- but could not find them in a State of Nature, but always in a State of political Society.

I have looked for them in the Constitution of the English Government, and there found them. We may draw them from this Soursce securely.

Galloway went on later to propose a Plan of Union, which would create a Colonial Parliament that would act together with the British Parliament in legislating for the colonies.  The Congress voted to reject this plan, and the plan was even stricken from the records of the Congress's proceedings.

Loyalists like Galloway had to contend either that the state of nature never existed, or that while it could exist, it was a dangerous condition of violent disorder, and therefore should be avoided at all costs.  In taking the second position, they assumed a Hobbesian view of the state of nature as a "war of all against all."

Patriots like Henry had to contend that the state of nature was a reality of human history, and that it could be a state of social order in which people act as a community capable of establishing a new government.  Thus, the Patriots assumed a Lockean view of the state of nature as a social state of peace, even if it could become a state of war in the absence of government.

The Patriots thought that the experience of Massachusetts in 1774 confirmed their view of the state of nature.  As a result of Parliament's passage of the Coercive Acts in the spring, the government of Massachusetts under its colonial charter was dissolved, and Massachusetts was reduced to a state of nature; but the people of Massachusetts organized themselves through hundreds of local meetings and committees of correspondence to create extralegal governing bodies that could send delegates to the Continental Congress, which could then become a provisional government for a union of the colonies.

We can see here that the fundamental debate in the American Revolution and American Founding was over the state of nature.

This debate continued in some form throughout the Founding period.  For example, when the Constitutional Convention of 1787 proposed the ratification of its Constitution as a substitute for the Articles of Confederation, some of the opponents of ratification argued that the Constitutional Convention did not have the legal authority to frame and propose this Constitution.  They made two arguments.  First, in February of 1787, the Congress of the United States under the Articles of Confederation had recommended a Convention that would propose alterations in the Articles.  But then the Convention in Philadelphia proposed a Constitution that consisted not of alterations in the Articles but a total substitution for the Articles, which went beyond the authorization of the Congress.  Secondly, while under the Articles of Confederation (Article XIII), any "alteration" of the Articles would have to be ratified by the legislatures of all thirteen of the states, the Constitutional Convention proposed that the new Constitution should be submitted to a convention of delegates "chosen in each State by the People thereof," and that the Constitution would come into effect as soon as the conventions of nine states had ratified it.  Far from being a mere alteration or revision of the Articles of Confederation, the Constitution of 1787 looked like a revolutionary overthrow of the Articles, with an appeal to the authority of the People in a state of nature to establish a new government to better secure their natural rights.

In The Federalist, James Madison responded to this objection by in effect admitting that the Constitution Convention was proposing a Second American Revolution based on the principles that justified the First American Revolution.  He did this in two ways.  First, he invoked the revolutionary language of the Declaration of Independence.  He claimed to speak for those at the Convention:

"They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory, the transcendent and precious right of the people to 'abolish or alter their governments as to them shall seem most likely to effect their safety and happiness;' since it is impossible for the people spontaneously and universally, to move in concert towards their object; and it is therefore essential, that such changes be instituted by some informal and unauthorised propositions, made by some patriotic and respectable number of citizens" (no. 40).

In doing this, the Framers of the Constitution were "recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed" (no. 43).

Second, Madison says that the Framers of the Constitution must have understood that what they were doing in 1787 was similar to what was done by the American Revolutionaries in 1774 to 1776:

"They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their antient government; that Committees and Congresses, were formed for concentrating their efforts, and defending their rights; and that Conventions were elected in the several States, for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were any where seen, except in those who wished to indulge under these masks, their secret enmity to the substance contended for" (no 40).

Notice that without using the term state of nature, Madison implicitly affirms that the Framers of the Constitution had entered a state of nature in which the People had the natural right to dissolve the Articles of Confederation and establish a new national government through the Constitution that would better secure their rights.

And if we see the Constitution as the Second American Revolution, should we also see the Civil War and the Civil War Amendments (13-15) as the Third American Revolution.  Because didn't America need that Third Revolution to fulfill the original promise of the First Revolution to secure equality of rights for all men and women, which required the Civil War as an "appeal to Heaven" and new amendments overturning the constitutional protections for slavery and establishing the "equal protection of the laws"?

5.  INTERNATIONAL RELATIONS AS A STATE OF NATURE

The Declaration of Independence concludes with the Continental Congress declaring "that these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

Just as in the state of nature, all individuals are free and independent, and so any social order is based on the mutual consent of those individuals, likewise in the international state of nature, all states are free and independent, and so any international order is based on the mutual consent of states.  So here we see how for Locke, and other theorists of the state of nature, international relations are a fifth way in which human beings can be in a state of nature.

In their thinking through this idea, the American Revolutionaries were much influenced by their reading of Emer de Vattel's The Law of Nations, or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (1758).  Vattel's fundamental principle was that the law of nations was the law of nature of individuals in the state of nature applied to states.

Much of the modern theorizing about international relations and international law has turned on this idea of international politics as a state of nature.

CONCLUSION

In the American Revolution, we can see the five ways in which the Lockean state of nature appears--in the original human condition of hunter-gatherers, in human emigration from an established government, in individual and collective self-defense against attacks, as a consequence of the dissolution of government, and in international relations.

We can also see here that the American Revolution was a historical experiment that confirmed Locke's account of the state of nature as superior to Hobbes's.  For Hobbes, the state of nature must always be a state of war; and therefore it must be avoided at all costs.  For Hobbes, any government is better than none, because peace is always better than war.  

But for Locke, the dissolution of government does not necessarily lead to the dissolution of society and the state of war.  Although there is always the risk that it will collapse into a state of war, a state of nature can be a state of peaceful cooperation as people organize themselves into a social order without any formal government.  And therefore, even though the state of nature is risky, there are circumstances in which it can become a sanctuary from a condition that is even worse--the loss of liberty under the rule of an oppressive government.  For Locke, people consent to government with the trust that it will secure their natural rights.  When a government has violated that trust, the government can be dissolved, and the people can regroup as a society in the state of nature and establish a new government.  The American people did that in the American Revolution.

 

Natural Rights in Locke's State of Nature Correspond to Natural Instincts in Bowlby's Environment of Evolutionary Adaptedness: The Case of Parent-Child Attachment

 John Locke's state of nature is often said to a "hypothetical" or "fictional" concept with no historical reality.  And yet Locke is clear in identifying the state of nature as part of the "history of mankind" that originated among the hunting-gathering ancestors of human beings.  "In the beginning, all the world was America," and that's why Locke carefully studied the first European reports about the life of native Americans living in foraging bands.

This is important because the historical reality of the state of nature is the first and most fundamental of the five arguments for Locke's theory of natural rights.  That first argument is that natural rights are identified as part of the natural liberty that human beings have in the state of nature in the absence of any formal institutions of government.

The second argument is that natural rights are constrained by natural law, because natural law will be enforced by natural punishment--the "executive power of the law of nature"--the natural propensity of human beings to resist and retaliate against those who threaten their liberty.

The third argument is that because this natural punishment in the state of nature can often lead to unremitting conflict, human beings will consent to establish governments to secure their natural rights through formal laws and institutions for making, enforcing, and adjudicating those natural laws.

The fourth argument is that the civil law of government must approximate the natural law, because if the civil law does not secure natural rights, the people have the natural right to overthrow the government, return to the state of nature without government, and establish a new government that they judge will better secure their natural rights.

The fifth argument is that since civil law must approximate natural law, civil law (such as the constitutional law of the United States) can be judged by the standard of natural law as to how well it secures natural rights.

If the first argument for the historical reality of the state of nature were judged to be false, then the other four arguments would also fail.  It is crucial, therefore, for the Lockean political philosopher to see that human nature was originally formed in the state of nature of the prehistoric human ancestors living in hunting-gathering bands, whose life was similar to those American Indians who still lived in foraging bands without formal governmental institutions during Locke's lifetime.

Locke relied on the best anthropological evidence available to him, including the hundreds of books in his library that would today be identified as anthropological ethnographies, to determine what that original state of nature was like.

But now we can turn to the evolutionary anthropology that has developed over the past 150 years to see if it confirms Locke's account of the state of nature.  We can see that what Locke called the state of nature coincides with what evolutionary psychologists like Leda Cosmides and John Tooby call the "environment of evolutionary adaptedness" or EEA.  

This term "environment of evolutionary adaptedness" was originated by John Bowlby in his book Attachment (second edition, 1982), which became a classic work of "attachment theory" to explain the patterns of attachment between mothers and their children.  For Bowlby, this was a Darwinian or biological theory of how the human instincts for attachment of parents and children evolved in the evolutionary ancestors of human beings, along with all of the other evolved human instincts that constitute universal human nature.

Bowlby explained:

". . . What matters here is that, if man's behavioural equipment is indeed adapted to the primeval environment in which man once lived, it is only by reference to that environment that its structure can be understood.  Just as Darwin found it impossible to understand the structure of an orchid flower until he knew what insects flourished and visited in its environment of adaptedness, so, it is held, it is impossible to understand man's instinctive behaviour until we know something of the environment in which it evolved.  For a picture of this we need to turn to anthropological studies of human communities living in the least modified of human environments, to archaeological studies of early man, and to field studies of the higher primates."

"Few peoples on earth today still obtain their food solely by hunting and gathering, and even fewer good accounts of their social life exist.  The evidence available shows, nevertheless, that without exception all live in small social groups comprising individuals of both sexes and all ages.  Where some social groups are reasonably stable, others change in size and composition.  But whether the larger group is stable or not, the tie between a mother and her children is always present and virtually unchanging" (60-61).

Among mammalian animals, young offspring cannot survive without extensive parental care, and particularly care by their mothers or maternal surrogates.  This parental care is intensive and prolonged among human beings and other primates because of the slow development of offspring to maturity.  We can expect, therefore, that natural selection has favored the evolution of the instincts for parental care and parent-child attachment as adaptations for survival and reproduction.  The evolution of these and other human instincts in the primeval environment of evolutionary adaptedness constituted the universal human nature that we see today.

Although Locke did not have a Darwinian evolutionary theory, he did understand much of the logic of this theory as applied to parental instincts.   He understood that human beings had developed a natural desire for self-preservation because this secured their survival, and natural desires for sexual mating and propagation of offspring that would secure their reproductive success.  "For Children being by the course of Nature, born weak, and unable to provide for themselves, they have by the appointment of God himself, who hath thus ordered the course of nature, a Right to be nourished and maintained by their Parents" (FT, 86-89).  Consequently, human beings are naturally social animals, because the "first society" was the social bond between husbands and wives and between parents and children (ST, 77).  And notice that while Locke invokes God as Creator, he indicates that God works through "the course of nature," so we can see this as the law of "God or Nature."  Notice also that these natural inclinations or desires for familial bonding create natural rights.  Parents have a right and a duty to care for their children.  And we can judge civil law by how well it secures this natural law of parental care.

In this way, Bowlby's natural instincts become the natural grounds for Locke's natural rights.

We can see this illustrated in some of the decisions of the U.S. Supreme Court concerning parental rights.  In Troxel v. Granville (2000), the Supreme Court struck down as unconstitutional a Washington state law authorizing courts to give visitation rights to any person who could argue that this was in the best interests of the children, even when this was contrary to the wishes of the parents.  The Court declared that this law violated the fundamental right of parents to rear their children.  (I have mentioned this case in a previous post about how the Lockean political philosophy of the Declaration of Independence enters the Constitution.)

What's interesting about this is that the U.S. Constitution never specifically mentions a right of parents to rear their children.  So the Court had to identify this as one of the unenumerated rights protected by the Constitution.  Justice Thomas said that this was one of the unalienable rights recognized by the Declaration of Independence and the Ninth Amendment.  But in his dissenting opinion in Troxel, Justice Scalia denied that Supreme Court judges had the authority to secure this right.

The Declaration of Independence affirms as self-evident that all human beings are naturally endowed with "certain unalienable rights," and "that among these are life, liberty, and the pursuit of happiness."  The phrase "among these" suggests that there are other natural rights that are not being enumerated here, and that "life, liberty, and the pursuit of happiness" are prominent illustrations.  Similarly, after enumerating certain rights, including "life, liberty, and property" in the first eight amendments, the Constitution in the Ninth Amendment declares: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

In Troxel v. Granville, Justice Scalia argued:

"In my view, a right of parents to direct the upbringing of their children is among the 'unalienable Rights' with which the Declaration of Independence proclaims 'all men . . . are endowed by their Creator.'  And in my view that right is also among the 'othe[r] [rights] retained by the people' which the Ninth Amendment says the Constitution's enumeration of rights 'shall not be construed to deny or disparage.'  The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people.  Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents' authority over the rearing of their children.  I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right" (530 U.S. 57, 91-92 [2000]).

It is hard to see the logic of Scalia's claim that in refusing to affirm "unalienable rights" that are protected by the Constitution, he is not thereby denying or disparaging them.  He asserts that the Constitution confers upon judges the authority to secure those unalienable rights specifically enumerated in the Constitution but not those unalienable rights that are protected by the Constitution but not enumerated.  He does not support this assertion with any citation of the constitutional text or any evidence that this was the original meaning of the text.

Scalia asserts that the protection of the unalienable rights affirmed in the Declaration of Independence and the Ninth Amendment must depend upon debates "in legislative chambers or in election campaigns," without any interference by judges.  This ignores the argument by the Framers of the Constitution that the greatest threat to the rights of the people is the legislative power and the power of the majority to infringe on the rights of the minority.

In James Madison's speech to the House of Representatives in the First Congress, on June 8, 1789, in which he proposed a bill of rights as amendments to the Constitution, he stated that the purpose was to protect these rights "sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases, against the community itself; or, in other words, against the majority in favor of the minority."  A declaration of rights would be "one means to control the majority from those acts to which they might be otherwise inclined."

To explain the need for what become the Ninth Amendment, Madison observed:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.  This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into his system; but, I conceive, that it may be guarded against.  I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."

The effectiveness of such a bill of rights would depend upon the judiciary: "If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

Scalia might assert that "rights expressly stipulated" indicates that judges can be guardians of those rights that have been enumerated in the Bill of Rights but not the unenumerated rights of the Ninth Amendment.  But Madison did not say that "expressly stipulated" meant "enumerated," because this would have nullified the whole point of the Ninth Amendment.  The constitutional protection of "those rights which were not singled out" was "expressly stipulated" by the Ninth Amendment.

Moreover, as Madison indicated in his speech, the rights to be protected by the Bill of Rights were not just the rights of Englishmen or the rights of Americans but "the great rights of mankind," which echoes the language of the Declaration of Independence in affirming the natural rights of all human beings.

These "great rights of mankind" are grounded in the evolved instincts of human nature as originally formed by natural selection in the primeval human environment of evolutionary adaptedness.