The Grand Bargain That Never Was

THE GRAND BARGAIN THAT NEVER WAS

John Locke meant well – he used scripture as a basis for many of his writings on law, government, and political society (his term). But ultimately, Locke propounded a huge lie – that as part of the process of erecting a stable and effective government, individuals must jointly give up some of their natural rights in order to achieve true liberty and other benefits of a peaceable state (I will explain this in the next section). Even John Jay bought into this lie, stating:

Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers. Federalist No. 2 (1787).

This view is both echoed and carried to its logical extreme by Jean-Jacques Burlamaqui, who proclaimed, “the civil state, which procures this liberty to mankind, is of all human states the most perfect, the most reasonable, and of course the true natural state of man.”⁴

Thus were the seeds of statism sown in Western law and culture, long before any of us were brought to life. I must say, my respect for these esteemed authors is somewhat diminished after re-reading their master tomes with fresh eyes. Especially since these men, on many occasions, attempted to ground their thinking on biblical principles and examples. But here I find their thinking gravely flawed. Jay’s error is particularly grievous (commingling natural rights with civil powers), although this point was eventually sorted out by the 9th and 10th amendments to the U.S. Constitution, discussed below.

Statism is the belief that civil government should have substantial centralized control over social and economic affairs, that is, the private sector. We don’t like to think this way, or admit it when running for elected office, but the United States of America is right now in the firm grip of statism. I’m not just speaking of the federal government, but civil government as a whole in America – federal, state and local.

With the recent rapid growth of the regulatory state, questions of civil disobedience naturally arise. These questions have always been with us, but they keep becoming more and more pressing. Federal and state regulations of purely private conduct have reached unprecedented levels that only two generations ago were unimaginable. Instead of merely being told what they can or cannot do, people are now told what they must do in their private dealings or else suffer some form of punishment. Who they must hire, what they must buy, how much they must pay, what views they must allow in their private associations – things everyone used to believe were not any of civil government’s legitimate concern. Oh wait – I still believe that.

Statism, left unchecked, always gives birth to tyranny. And opposing tyranny is the driving force for civil disobedience. In other words, statism leads to an increase of governmental excess, which civil disobedience seeks to hold back and disrupt. In physics, for every action there is an equal and opposite reaction (Newton’s third law of motion). Similarly, in the realm of government, the more people are regulated in their private affairs, human nature and history both teach us that there will be proportional pushback.

Mostly, people will pushback against government excess with civil disobedience. But when government digs in and doubles down its oppression of natural rights, the people will eventually rebel and revolt. So civil disobedience, in a certain sense, is an attempt to relieve excessive governmental pressure before the whole thing explodes. Rather than fearing civil disobedience, we should understand and even embrace its function as an essential safety valve for political society.

If we do not embrace civil disobedience as serving this valuable function, the result will be an emboldened class of public officials who will see no impediment to escalating their overreach, which will only lead to more tyranny, and eventually armed resistance (i.e., war). So I say, let’s get out ahead of the problem while we still can, and try to avoid disaster.

Yet, before jumping directly into the matter of civil disobedience, I will first lay a substantial foundation for understanding what this thing is, that we call civil government.

Political Society vs. A State of Nature

John Locke

John Locke, in his Second Treatise of Government (1690) stated certain principles of government that many consider to be the initial basis for American society. For sake of brevity, I will rephrase his argument. You can easily look up his treatise to check my summary of it.

Mankind started out under the law of nature with every individual free, equal and independent. In this state of nature, every man possesses not only the right to protect his own life, liberty and property, but also to punish violations of the law of nature with respect to any and all others as each person thinks best. The nature of every political society is such that each individual must give up this right to punish others in favor of the community, except to the extent each person retains the right to appeal to the community for law enforcement for his own sake.

Apart from this limited right of appeal [what we today would call the right to petition the government – or lobbying, in some cases the right to protest, and in a judicial context the right to sue], all law enforcement authority (and the right to judge disputes) vests exclusively with the community (according to Locke). It is therefore the job of political society to fix the proper punishments that each offense against the law requires.

However, even though every man surrenders his power to enforce the laws of nature, he is nevertheless obliged to offer his services to the community to enforce those laws for the common good whenever called upon. Locke reasons this is justified because the community consists of each person’s representatives, so when the community enforces the law, it is really each person acting to enforce his own personal judgment.

The conclusion of which is that unless this exchange takes place – where each person gives up their own right of enforcement and is willing to be employed to enforce the laws of society when called upon – no civil society truly exists. In other words, this exchange is the very definition of civil or political society. And finally, when a true civil society exists, each member of it is removed from a state of nature.⁵

I agree that mankind started out under the law of nature with every individual free, equal and independent. But everything else said by Locke is mere extrapolation from the present going back in time as though nothing has changed in the interim, contrary to the witness of scripture. The chief example of which is Cain in Gen. 4, who having killed his brother surmised correctly that human nature was such that others might want to avenge Abel by killing Cain.

Yet, that was not God’s perspective. In Gen. 4:15, we are told, “Then the Lord said to him, Not so! If anyone kills Cain, vengeance shall be taken on him sevenfold.’ And the Lord put a mark on Cain, lest any who found him should attack him.” The clear inference of which is that in this early time, back before the existence of nations or any civil society – Locke’s proverbial state of nature – no one in fact had the authority to punish Cain.

In other words, the scripture denies that any person ever had the natural right (i.e., a right springing from creation) to punish violations of the law of nature with respect to any and all others as each person thinks best. The natural right Locke theorizes every individual gives up when entering political society, never actually was a natural right. So everything else built on this premise must fail. Note, I am not here (nor is Locke) talking about self-defense, which is a bona fide natural right, but rather we are considering whether there is a natural right to general law enforcement, or what political writers generally call police power.

Did God give to all men since creation the natural right to a general police power? Locke said yes, I say no. When the right to punish crimes was given to men by God in Gen 9:6 (roughly 1600 or so years after Cain), it was given to every person as a descendant of Noah, but not technically as a matter of natural right. That’s because the right did not originate at the time of creation, but only came along later. It is a universal right arising from a divine covenant (the Noahic covenant), not a natural right springing from creation.

This distinction is important. Locke’s assertions put a state of nature (including all natural rights to law enforcement, if any) in opposition to a political society, such that they are mutually exclusive. When you are in one status, according to Locke, it precludes you from being in the other. But there is no incompatibility between political society and natural (i.e., God-given) rights which is recognized in scripture. According to scripture, we carry our natures around with us everywhere we go, including within any civil or political society, and this nature is a part of each one of us until we die. If this is the case, then how can anything else inextricably tied to our physical natures – such as our natural rights – be separated from us unless and until we die?

If, in fact, our natural rights belong to us unless and until we die, then those rights are inalienable – meaning quite literally, incapable of being transferred or deprived by men or society. Death and death alone terminates our natural rights.

So by definition, it is impossible that anyone can, should or must transfer any natural rights to society as a condition of membership in that society, because all such rights are inalienable. Further, upon entering into any political society, it is impossible that our human nature should be changed as a result. Even if the initial members of that society did transfer their natural rights by consent, they could not deprive their posterity (you and me) of our natural rights. To say that anyone gives up their natural rights when entering political society, is to deny that such rights are inalienable.

Sure, the people in any society may delegate some law enforcement authority to their civil government, but such act does not thereby deprive the people of any retained law enforcement authority.

Further, the scripture nowhere indicates the exchange Locke alludes to has any part in the consideration of what the proper function of civil government is. The scripture only says that the function of civil government is to “to punish those who do evil and to praise those who do good,” (1 Pe 2:14). To praise those who do good is generally understood in America to mean the protection and security of individual rights, not the transfer or deprivation of them. If you have some biblical proof that God expects anyone to give up what God has given him in order to participate in civil society, I’d like to see it.

Most certainly, no person is ever in any legal sense removed from the law of nature, because that law applies to all men, in all places, at all times, until the end of time. The mere addition of the laws of society (or, the laws of men) to any person does not operate to remove the laws of nature (part of the laws of God) from those persons. So this whole exchange that Locke puts at the very core of what it means to have a civil society is nothing but a total fiction. To be removed from a state of nature, in the way Locke means it, is tantamount to cutting off God’s jurisdiction over us when we become members of a civil society. And that just ain’t gonna happen.

Also, it is true that representative government acts on behalf of every individual member of society. But it is foolish to presume each and every civil law to be in accordance with the personal judgment of every individual. It is also foolish to assume every civil law will, in fact, be in the best interests of every individual member of society. Locke sets up a scenario in which civil laws will never be in conflict with individual rights, just because the laws emanate from a representative government acting on behalf of the people. But history is full of examples when legislatures enact stupid laws, bad laws, and prejudicial or injurious laws. Is there some compelling reason why we should pretend, as a legal fiction, that such laws conform to the judgment of all persons represented in the legislature? No, indeed.

James Wilson

Contrast Locke’s view with that of James Wilson, signer of the Declaration of Independence and the U.S. Constitution, also a U.S. Supreme Court justice:

What was the primary and the principal object in the institution of government? Was it — I speak of the primary and principal object — was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?

The latter, I presume, was the case: and yet we are told, that, in order to acquire the latter, we must surrender the former; in other words, in order to acquire the security, we must surrender the great objects to be secured. * * *

After all; what is the mighty boon, which is to allure us into this surrender? We are to surrender all that we may secure “some:” and this “some,” both as to its quantity and its certainty, is to depend on the pleasure of that power, to which the surrender is made. Is this a bargain to be proposed to those, who are both intelligent and free? No. * * *

“Man,” says Mr. Burke, “cannot enjoy the rights of an uncivil and of a civil state together.” By an “uncivil” contradistinguished from a “civil” state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? * * *

If this view be a just view of things, the consequence, undeniable and unavoidable, is, that, under civil government, individuals have “given up” or “surrendered” their rights, to which they were entitled by nature and by nature’s law; and have received, in lieu of them, those “civil privileges, which society has engaged to provide.” … [And] then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames: he can claim nothing but what the society provides.⁶

Now there’s guy who gets it – who had his head on straight. Thank God he was a significant part of the founding of America. He even took Blackstone to task – and rightly so – for characterizing the rights of personal security, of personal liberty, and of private property, not as natural rights, but as the civil liberties of Englishmen. Why, oh why, did America so willingly abandon the foundation that James Wilson had laid?

Civil Government as the Supreme Human Achievement

Jean-Jacques Burlamaqui

Now, let’s look at Jean-Jacques Burlamaqui who, writing about 60 years after Locke in The Principles of Politic Law (1752), ups the ante quite a bit. Again, for the sake of brevity, allow me to rephrase his arguments:

Natural liberty is the right, which nature gives to all people, of conducting their affairs as they wish, on condition that no one abuses their natural liberty to the prejudice of others. [Here he makes the legal argument, essentially, that one man’s freedom to swing his arm ends where the other man’s nose begins.]

This natural liberty is distinguished from independence, which mankind is unsuited for, since we are always dependent on the laws of God. He then argues that human liberty is entirely consistent with dependence on a sovereign and submission to his laws. In fact, the power and protection of the sovereign forms the greatest security of personal liberty. For this reason, the condition of being dependent on a superior sovereign is better than being in a state of natural liberty.

Civil liberty is therefore nothing more than natural liberty, divested of that part of it, which formed the independence of individuals, by the authority which they have conferred on their sovereign. Since civil liberty therefore is far preferable to that of nature, we may safely conclude (according to Burlamaqui) that the civil state is of all human states the most perfect, the most reasonable, and of course the true natural state of man. Ultimately, the institution of civil government brings people back to the observance of the laws of nature, from which they had strayed by the bad use of their liberty.⁷

Notice what Burlamaqui does. He first argues people are inherently dependent on God as the supreme sovereign, then leaps from there (without proof or citation of authority) to the assumption that people are better off being dependent on a civil sovereign, i.e., a king. He notes that all human sovereignty is derivative (delegated by the people), but fails to consider that God’s sovereignty is original (undelegated). So when he compares God’s sovereignty and civil sovereignty, he wrongly treats them as producing an equal degree of dependence on the part of the people.

This, of course, is fallacious. It is certainly true that people (as God’s creatures) are utterly dependent on the laws of the Creator. However, it is impossible for people to be utterly dependent on any civil sovereign which is, in fact, the creature of the people. We are dependent on the One who made us – not the ones whom we make (and vest with authority). Burlamaqui places civil sovereigns alongside God, above the people. But that is not where civil sovereigns belong – they are mere agents of the people, below the people in authority.

Biblical history clearly shows us that when God created the world and the human race, He did not create, impose or place any civil sovereign over the people. Mankind went for nearly a third of our total history without any nations (much longer, if you believe in evolution), and civil governments were only gradually introduced as those nations grew.

If we consider in biblical terms, that Gen. 9:6 (the institution of capital punishment) is the first instance of a grant of what might be called civil authority, we must also observe that at the time it was given (being immediately after the great Flood, when only eight persons were alive in the whole world), there were no civil governments then in existence. Indeed, before there could be any civil governments there first had to be nations, and nations did not come about for at least another century, following the dispersion at the Tower of Babel. The development of civil governments would have been slow and gradual from that point, such that they were only in an infant state by the time of Abraham, roughly 2000 B.C. (perhaps 250 years after Babel).

Theologians often like to point out that the period of Israel’s history under the judges (roughly from 1450 B.C. to 1050 B.C.) was a time marked by every man doing what was right in his own eyes. See Jdg. 21:25. This is almost universally seen by commentators as a bad thing. And yet, that was exactly the system God intended the Israelites should live under. If God had intended for Israel to have a civil sovereign (i.e., a king) He would have given them one from the beginning.

Yes, we all know ancient Israel transformed into a monarchy with God’s permission beginning with Saul, but it can hardly be argued that is what God intended all along. In fact, God warned the people that the king they were asking for would end up being oppressive. See, 1 Sam 8:11-18, the last verse of which is as follows: “And in that day you will cry out because of your king, whom you have chosen for yourselves, but the Lord will not answer you in that day.” In other words, “you’re gonna get what you asked for, and tough if you don’t like it.”

Burlamaqui asserted that “the civil state is of all human states the most perfect, the most reasonable, and of course the true natural state of man,” the ultimate achievement of which would be to bring people back to the observance of the laws of nature. Malarky! Students of history will know that as nations “progress,” they almost inevitably become more tyrannical. Yes, God wants us to have good (righteous) civil government, but you’re never going to achieve that by building on the foundation laid by Locke, Burlamaqui, and similar writers.

True Progress v. Progressivism

It is amusing to read the historic legal writers, who: a) talk about the state of nature like it was some primitive developmental phase in human progress; and b) talk about the creation of civil governments or bodies politic as a mutual means of producing happiness for the most people. I sincerely doubt whether any early civil society was formed on that basis. Rather, following Babel, people were necessarily isolated from each other by reason of language which formed a barrier that initially no one could overcome. People were driven of necessity to trust only those with whom they could communicate, and to distrust all others. This is the true origin of all civil societies – not mutual consent or happiness, but linguistic distrust.

All the descendants of Noah, to whatever family group (or nation) they belonged, carried with them – each individually and not in any corporate sense – the authority to inflict capital punishment, and if you will, the power to form a civil government. All this preceded the actual existence of any civil bodies politic, in fact. So for anyone to claim that the civil state is “the true natural state of man” is an absurd assertion, for clearly God did not think it necessary for a civil state to exist before giving mankind civil authority.

Similarly, merely by virtue of the fact that God created mankind and allowed people to exist without civil government for nearly 2,000 years, it can be inferred that civil government never was, nor indeed never will be, absolutely essential to human existence. God gave Adam, Noah and their descendants everything – including every social institution – they needed to survive, and indeed, thrive. I argue that there is nothing, in fact, natural about civil government. God gave no one a civil government, and civil governments did not arise from the creation of the world. Every civil government is an artificial contrivance – there is nothing natural about them.

Thus, the true progress of the human race is not so much measured by the achievement of a powerful, efficient and ever-present civil government (i.e., progressivism), as it is the struggle to form societies of mutual benefit for reasons other than mere necessity, subjugation, or sustaining the burden imposed by prior generations. In other words, the real progress of humanity is to form civil societies where there is more and more true freedom and liberty. If you are inclined to follow John Locke, then the best civil society is where all men are (still) born free. Cmp., Locke’s First Treatise of Government (1680).

And as far as the formation of civil societies is concerned, I see the formation process more in terms of a delegation, not an alienation. An alienation is a transfer, or giving up or surrender of something, such that the person who does it no longer has it. Thus, when you alienate a piece of property, you transfer it to another and do not retain any interest in the rights transferred. Yes, you can transfer less than the whole, and retain a partial interest, but the interest you transfer cannot come back or be exercised by you.

A delegation, by contrast, is where a principal grants a limited authority to an agent (such is the relationship of the people and any civil government they form). However, the principal retains the authority which has been delegated, and in fact the delegation can be revoked. The delegation is for the convenience of the principal, so that they are not required to exercise the delegated authority in every instance where it may be desired. Yet this does not deprive the principal of the right, whenever convenient, to exercise that same authority when desired. The principal, if they so desire, can disregard the agent and act on their own behalf at any time.

And as between the principal and the agent, who is always superior? The principal, i.e., the people – not the civil sovereign. And so now, in Reformation style,

I affirm, that there is no true incompatibility between civil society and a person’s natural rights, a man has no valid social duties in opposition to his natural rights, and no human law should be suffered which contradicts this.

I deny, that I at any time surrendered, or that any of my ancestors could rightly surrender on my behalf, any of the natural rights given to me by God at my birth, so as to deprive or limit my use of them in civil society.

All of the natural rights God gave me (as one of The People), I still have without reduction as a member of civil society – and I am free to use any or all of them whether civil society wants me to or not. Because how I use my God-given rights is strictly between me and God. And the same goes for you.