America is on trial at the moment, though the weird and violent mix of real and imagined and outright manufactured wrongs makes the proceedings look more like something concocted by Kafka rather than a true reckoning. All of which makes Robert Reilly’s magisterial book America on Trial more urgent than even he may have thought while writing it.
It’s a defense of the nation’s founding, to be sure, but it’s also a much deeper and broader philosophical presentation of the natural law principles that lie beneath that founding – and must be the basis for any legitimate social order.
Reilly was moved to this task in reaction to attacks from figures that one would normally expect to find in the broadly pro-American camp. The political scientist Patrick Deneen and philosopher Michael Hanby—both solid American Catholics—have, in different ways, criticized the Founding as flawed and, therefore, the most fundamental reason for the vast social disorders and perverse notions of the human person so prevalent in our time.
Reilly agrees with the criticism of our current situation, but in a real tour de horizon argues that the fault lies not in the Founding, but in the incremental and accelerating departures from sound views of the human person and social philosophy over the last century and more.
As in his previous books on Islam and on the public acceptance of homosexuality, Reilly bases his argument on the perennial struggle between philosophical realism and “voluntarism”—the view that will determines good and evil, truth and falsehood. In Islam, for example, Allah himself can change his mind capriciously, which makes any effort to understand the truth of things, i.e, “what is,” as Plato first put it, impossible to determine.
Fully two-thirds of the text is taken up with showing how these two main views have contended from the earliest stirrings of rational thought down to the present. Anyone unfamiliar with the main lines of this intellectual tradition, or needing a refresher, will benefit from the sharp distinctions Reilly draws, along with the ease with which he moves through its historical expressions in Greece, Rome, and Israel; the Middle Ages; the Reformation and Counter-Reformation; and modern figures such as Hooker, Hobbes, Locke, and many more.
The surprising element in it all—at least for this writer—is how much the American founding Fathers were steeped in the classic natural law tradition. There’s long been a debate about how much that tradition and how much other elements, notably Enlightenment thought, entered into the new American nation. John Courtney Murray’s brilliant We Hold These Truths has long been the standard reckoning, both an affirmation of what’s good and a caution that in modern times it’s hard to “hold.” Reilly has solid evidence that whatever else may have been in the minds of our 18th-century Founders, the basic natural law perspective was, with few exceptions, embraced. And consciously so.
He approaches this material comprehensively, first preparing the ground by showing how the Locke that the Founders and most Americans absorbed at the time—whatever subsequent ages may have tried to make of him—was not “Hobbes with a smiley face,” but a thinker who pushed back against royal usurpations and affirmed traditional notions of liberty and limitations on secular authorities. As has often been argued, the American Revolution, unlike the French, did not seek some radical departure from the sound principles of earlier times, but a vindication of what was sometimes called the “rights of Englishmen” against modern encroachments, notably the “divine right of kings.”
Locke is famous for rebutting Robert Filmer’s apology for divine right in his Patriarcha: The Naturall Power of Kinges Defended against the Unnatural Liberty of the People, by Arguments, Theological, Rational, Historical and Legall, as did Algernon Sidney. What’s less known, however, is that in several respects Filmer was himself seeking to refute two prior advocates of the ancient and medieval teachings about the limits of the monarch: St. Robert Bellarmine and Francisco Suarez, S.J. It was Bellarmine, says Reilly, not Locke in the 17th century or Jefferson in the 18th, who first said, “All men are born naturally free and equal.”
Indeed, Filmer early on in his book cites Bellarmine, and argues:
This tenet was first hatched in the schools, and hath been fostered by all succeeding Papists for good divinity. The divines also of the reformed churches have entertained it, and the common people everywhere tenderly embrace it as being most plausible to flesh and blood, for that it prodigally distributes a portion of liberty to the meanest of the multitude, who magnify liberty as if the height of human felicity were only to be found in it—never remembering that the desire of liberty was the cause of the fall of Adam.
In a way it was only to be expected that Catholic theorists would lean toward limitation on the secular power, because the Church, properly functioning, was precisely such an institutional limit in ages prior to the Renaissance teaching about the divine right of kings. Reilly points out that “Suárez declared Divine Right to be ‘new and singular, invented to exaggerate the temporal and to minimize the spiritual power.’ Bellarmine’s position, he said, was ‘the ancient, commonly accepted, and true teaching.’”
The American Founders, of course, were not directly heirs to this tradition, which mostly came to them through figures like Locke, Algernon Sydney, and the Anglican natural law thinker Richard Hooker. Sydney, for example, though reluctant to credit Catholics with this line of reasoning, argued against Filmer:
I do not find any great matters in the passages taken out of Bellarmine, which our author [Filmer] says, comprehend the strength of all that ever he had heard, read, or seen produced for the natural liberty of the subject; however there is certainly nothing new in them: We see the same, as to the substance, in those who wrote many ages before him, as well as in many that have lived since his time, who neither minded him, nor what he had written…. He seems to have laid the foundation of his discourses in such common notions as were assented to by all mankind.
It’s precisely here that the plot gets most interesting. And if there’s a criticism to be made of this book, it’s that Reilly did not spend less time on the historical highway and byways of natural law opposition to voluntarism, which is already and abundantly available elsewhere, and more time detailing the “common notions as were assented to by all mankind” of virtually all the Founders, which is little noticed by historians unfamiliar with the tradition and, therefore, under-emphasized even when noticed.
Scholars have debated and will continue to debate exactly what proportion of this or that earlier figure or part of the intellectual tradition influenced individual Founders or the American Founding as a whole. But there’s little doubt—and Reilly cites chapter and verse—that the general atmosphere at the time led the main actors to believe that what they were doing was consonant with the common patrimony of human wisdom on these matters.
To take just a few—striking—examples (Reilly reproduces many more), Jefferson is usually thought of as the most adventurous thinker among the Founders, but he had this to say in a letter to Henry Lee:
This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before…neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.
Similar sentiments stud the writings of Hamilton, Madison, and others. Reilly is particularly convincing in his presentation of James Wilson as probably the deepest natural law thinker and influential voice among the Founders.
And what they were speaking of was not the notion of radically autonomous liberty and the imperial self that we have, to our sorrow, today, which has come to us not by descent from the founding principles but precisely by the abandonment of the divine and natural laws that kept America from following radical and radically self-destructive notions of freedom, as did the French Revolution. Reacting to that revolution, John Adams, another Founder who considered himself part of the common tradition, remarked, “There is no such thing [as the equality of mankind and a purely human morality] without a supposition of a God. There is no right or wrong in the universe without the supposition of a moral government and an intellectual and moral governor.”
As we’ve learned in recent days, even recalling well-known truths about the American past has little effect on those who wish to abandon our common heritage for personal aims, and sometimes out of a pure spirit of destruction. Even the justices of our Supreme Court seem incapable of reading the plain words of the Constitution or of statutory laws. But as dismal as the situation may now look, Robert Reilly has done us all a great service in distinguishing the real Founding from the one many people today would like to forget.
His critics are right that what today passes for America’s foundations and our “rights” is decadent and threatening. They are wrong in claiming that the Founding, properly understood, is the reason for our predicament.
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