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SUFFOLK UNIVERSITY LAW REVIEW

Volume XXXVII 2004 Number 4

God hath Created the Mind Free: Toward a Jeffersonian Theory of Rights

Harlan M. Goulett�

After decades in the wilderness of linguistic abstraction, moral philosophy has at last come home. Through most of the past century, moral philosophers analyzed language in the effort to construct linguistic proofs, or instead to disprove, moral assertions as such.1 Impossible demands for linguistic proof from analytic thinkers forced their opponents to retreat to a skepticism that defended, so far as possible, nothing.2 This skepticism may now be falling

� Principal, Harlan M. Goulett and Associates; LLM, Temple University School of Law, 1992; J.D. University of Minnesota Law School, 1983. The author wishes to thank Professor Margaret A. Baldwin of the University of Florida Law School, and Professor Daniel A. Farber of the University of Minnesota Law School for their insights and assistance. This article is dedicated to the late and much loved Richard T. Oakes, founder of Hamline University Law School and the Street Legal Motorcycle Club, not necessarily in that order. 1. See generally GEORGE EDWARD MOORE, PRINCIPIA ETHICA (1903); ETHICS (1912); LUDWIG

WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (2d ed. 1953). Jurgen Habermas commented on Wittgenstein that �the turn from logical to linguistic analysis . . . ended in the artistry of language games that the found satisfaction exclusively in themselves.� JURGEN HABERMAS, The German Idealism of the Jewish Philosophers, in RELIGION AND RATIONALITY 44-45 (E. Mediata ed., 2002). The centrality of linguistic dispute in these approaches to morality led W.K. Frankena to re-label Moore�s great contribution, the �naturalistic fallacy,� as a �definist fallacy� about concerning only the supposed single core meaning of the term �goodness.� See W.K. Frankena, �The Naturalistic Fallacy,� in STUDIES IN THE PHILOSOPHY OF G.E. MOORE 30, 38-40 (E.D. Kelmke ed., 1969); see also infra note 106 and accompanying text (discussing philosophical explanations). John Sealre offered a linguistic refutation in Speech Acts. See JOHN R. SEARLE, SPEECH ACTS: AN ESSAY IN THE

PHILOSOPHY OF LANGUAGE (1969) 2. See generally JAQUES DERRIDA, OF GRAMMATOLOGY (Gayatri Chakravorty Spivak trans., Johns Hopkins Univ. Press 1976); RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979). Jaques Derrida�s critique of the western philosophical tradition saw its task as the �deconstruction� of philosophical texts, while the attack of Richard Rorty sought to end philosophy by showing the futility of any attempt to describe even a physical reality outside the linguistic realm. See generally DERRIDA, supra; RORTY, supra. Opponents of the linguistic turn warned that the idealist implications of these trends were deeply unattractive. See IRIS MURDOCH, METAPHYSICS AS A GUIDE TO MORALS 185 (1982); ROY BHASKAR, PHILOSOPHY AND THE

IDEA OF FREEDOM vii-6 (1991); STANLEY ROSEN, Rorty and Systematic Philosophy, in THE ANCIENTS AND THE

MODERNS: RETHINKING MODERNITY 177-80 (1989). Iris Murdoch perceptively described Derrida�s effort to replace the recalcitrant human world with a more malleable �text� as �Linguistic Idealism.� See MURDOCH, supra, at 185. Roy Bhaskar and Stanley Rosen made similar points against Rorty. See BHASKAR, supra, at vii-


984 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XXXVII:983

from favor, as its seeming humility about �foundations� led to practical conclusions that were anything but humble.3 Both analysts and pragmatists were forced to relearn the timeless lesson, as memorably put by Northrup Frye, that grammatically and logically there is no difference between lions and unicorns, or between reason and rationalization.4 If there are criteria of difference, they must be sought outside the realm of words,5 in the facts of our experience. In recent decades, moral philosophy has been compelled to return to its ancient and early modern roots. It is again concerned, not merely with words, but with substantive moral questions of freedom, of duty, and of justice.6 Individual rights, and the history and epistemology of natural rights in particular, are prominent among the current concerns of both moral and political philosophers.7

6; ROSEN, supra, at 177-80. 3. See generally RICHARD RORTY, THE LINGUISTIC TURN (1992) (arguing linguistic or other social practices construct only reality that is in principle accessible to perception or thought). Although this reduction of reality to knowledge was rejected by many, Rorty maintained that this view had conquered the field by 1992. See BHASKAR, supra note 2 (rejecting theory of reduction of reality). See generally RORTY, supra. Yet this claim has led Rorty to the paradoxical position of an entirely triumphal skepticism. See generally id. He explains that after his pragmatism destroyed the foundations of ethics, no valid argument from moral consistency could be raised against successful totalitarian �practices.� Id. Thus,

[w]hen the secret police come, when the torturers violate the innocent, there is nothing to be said to them in the form �There is something within you which you are betraying. . . . There is something beyond those [social] practices which condemns you.� [When fascism triumphs,] �fascism will be the truth of man . . . .�

RICHARD RORTY, CONSEQUENCES OF PRAGMATISM xlii (1982) (quoting JEAN-PAUL SARTRE, L�EXISTENTIALISME EST UN HUMANISME 53-54 (1946)). As Matthew Lamb has noted, �[m]odern dogmatic self-assertion is profoundly nihilistic, just as modern nihilism is irresponsibly dogmatic.� Matthew Lamb, quoted in HABERMAS, supra note 1, at 71 (internal citation omitted). Indeed, one goal of this article is to refute Rorty�s �dogmatic� moral nihilism. 4. See NORTHRUP FRYE, THE GREAT CODE: THE BIBLE AND LITERATURE 12-13 (1982). 5. Id. 6. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971); RONALD DWORKIN, TAKING RIGHTS

SERIOUSLY (1976). John Rawls and Ronald Dworkin are likely the most influential figures in this area. See generally RAWLS, supra; DWORKIN, supra. Martha Nussbaum explicitly labels her evaluative theory �neo-Stoic.� See MARTHA C. NUSSBAUM, UPHEAVALS OF THOUGHT 4 (2001); see also ROBERT GEORGE, NATURAL

LAW THEORY (1992); TIBOR MACHAN, INDIVIDUALS AND THEIR RIGHTS (1989); JOHN FINNIS, NATURAL LAW

AND NATURAL RIGHTS (1980); ALAN GEWIRTH, REASON AND MORALITY (1978). Natural rights theory seems to be making a comeback in the legal literature as well, as was shown at a recent seminar on constitutional interpretation and the good society. See, e.g., Phillip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907 (1993); SOTIRIOS BARBER, THE CONSTITUTION OF JUDICIAL POWER (1993); SOTIRIOS BARBER, ON WHAT THE CONSTITUTION MEANS (1984); HADLEY ARKES, BEYOND THE

CONSTITUTION (1990). See generally Michael Moore, Justifying the Natural Law Theory of Constitutional Interpretation, 69 FORDHAM L. REV. 2087 (2001); JAMES E. FLEMING, THE NATURAL RIGHTS-BASED

JUSTIFICATION FOR JUDICIAL REVIEW 2119 (2001). 7. Only a few notable examples, with emphasis on those that have most influenced my efforts here, must suffice. See generally DWORKIN, supra note 6; RAWLS, supra note 6; MICHAEL P. ZUCKERT, THE NATURAL

RIGHTS REPUBLIC: STUDIES IN THE FOUNDATION OF THE AMERICAN POLITICAL TRADITION (1996) [hereinafter ZUCKERT, NATURAL RIGHTS REPUBLIC]; A. JOHN SIMMONS, THE LOCKEAN THEORY OF RIGHTS (1992) [hereinafter SIMMONS, LOCKEAN THEORY]; A. JOHN SIMMONS, ON THE EDGE OF ANARCHY (1993) [hereinafter SIMMONS, EDGE OF ANARCHY].


2004] TOWARD A JEFFERSONIAN THEORY OF RIGHTS 985

No one would have been happier about this than Thomas Jefferson.8 Throughout his career, Jefferson consistently advocated legal protection for rights that had a higher source than the will of any legislature. He defended the �rights of human nature� against power in his first public paper,9 and he justified the American founding in the �inherent and inalienable rights� of man in his Draft of the Declaration of Independence.10 Jefferson�s commitment to natural rights philosophy underpins his arguments to Madison for a bill of rights, and runs throughout his voluminous public and private pronouncements.11 Jefferson is widely recognized today as the most vigorous and articulate defender of natural rights among the founding generation.12

Recent debate among historians has centered upon Jefferson�s enigmatic �character,�13 and just as he did during life, he inspires more sharply worded attack and more passionate defense than any other founder.14 Philosophers and historians of ideas, on the other hand, have focused their studies on the Declaration. Jefferson was of course its primary drafter, and Congress� editing, although minimal, caused him considerable pain.15 Criticism that the document

8. Jefferson knew better than anyone the intimate connection between individual rights and the revolution controversy, and warned that as society turned its attention to the ordinary scramble for money and place the public�s concern for their rights would inevitably decline after the war. See THOMAS JEFFERSON, WRITINGS 287 (M.D. Peterson ed., 1984) [hereinafter WRITINGS] (excerpting Notes on the State of Virginia (1785)). Jefferson stated that:

[o]ur rulers will become corrupt, our people careless. A single zealot may commence persecutor, and better men be his victims. It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going downhill.

Id. 9. A Summary View of the Rights of British America, in WRITINGS, supra note 8, at 116. 10. Letters to Madison, Paris, Dec. 20, 1787, and to David Humphreys, March 18, 1789, in JOYCE

APPLEBY & TERRENCE BALL, JEFFERSON�S POLITICAL WRITINGS 360, 363, 111, 113 (1999) [hereinafter POLITICAL WRITINGS]. 11. See, e.g., Letter to David Humphreys, Paris, Mar. 18 1789, in POLITICAL WRITINGS, supra note 10, at 111-12; Letter to Francis Gilmer, Monticello, June 17, 1816, in POLITICAL WRITINGS, supra note 10, at 142-43; Letter to James Madison, Paris, Dec. 20, 1787, in POLITICAL WRITINGS, supra note 10, at 360-61 (stating �a bill of rights is what the people are entitled to against every government on earth�). 12. See generally WILLIAM LEE MILLER, THE FIRST LIBERTY: RELIGION AND THE EARLY REPUBLIC (1986); MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION (1978); ADRIENNE KOCH, THE

PHILOSOPHY OF THOMAS JEFFERSON (1943); CARL BECKER, THE DECLARATION OF INDEPENDENCE (1942). 13. See generally JOSEPH J. ELLIS, AMERICAN SPHINX: THE CHARACTER OF THOMAS JEFFERSON (1997). 14. See generally LEONARD W. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE (1963). Levy later admitted, however, that the Virginia Statute for Religious Freedom contradicted his earlier thesis that virtually no important founder expressed a belief in free political expression up through the Alien and Sedition Controversy of 1798. See LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (previously issued as Legacy of Suppression) 193-95 (1985). Jefferson is our only founder who, in recent decades, has been the subject of a �self-styled Burkean[�s] splenetic attack . . . as a racist and apostle of anarchic �absolute liberty� for whites.� See POLITICAL WRITINGS, supra note 10, at lii-liii (citing CONNOR CRUISE O�BRIEN, THE LONG AFFAIR (1996)). Jefferson has been lambasted in history and in pseudo-history. See POLITICAL WRITINGS, supra note 10. Jefferson has even been ridiculed in fiction, especially in the chronicle of the outrageous by the outrageous. See generally GORE VIDAL, BURR (1973). 15. Benjamin Franklin consoled the thin-skinned Jefferson with the story of the hat-seller�s sign, which is



was not an original product of Jefferson�s mind ignores Jefferson�s purpose in writing it, that of placing in his own unmistakable words the broadest consensus of colonial political opinion. The document �was intended,� he said, �to be an expression of the American mind.�16 Jefferson�s Declaration attempted to state the most basic tenets of this American consensus to the world. Although the draftsman shared those tenets, the document was not intended as a statement of Jefferson�s personal political philosophy.

The case is otherwise with the document that shares Jefferson�s tombstone with the Declaration, the Virginia Statute for Religious Freedom.17 Along with his founding of the University of Virginia, he selected this Statute and the Declaration of Independence as the three accomplishments for which he wished to be remembered.18 While the more famous Declaration has been the object of intense scholarly scrutiny for some decades,19 the Statute that its author thought was at least as important has much less studied degree.20 Yet if we seek an �official� and compact statement of Jefferson�s personal political philosophy, as distinguished from that of the colonies as a whole, surely the Virginia Statute is a far better focus for our attention.

The neglect of the Statute is perhaps understandable. The Statute�s text has fallen victim to its unique history,21 and it has suffered a confusing muddle of rewritings, reprintings, and editorial changes.22 Yet the Statute is also

steadily reduced by editorial �suggestions.� See H.W. BRANDS, THE FIRST AMERICAN: THE LIFE AND TIMES

OF BENJAMIN FRANKLIN 511-13 (2000). 16. Letter to Henry Lee, Monticello, May 8, 1826, in POLITICAL WRITINGS, supra note 10, at 147, 148. 17. WRITINGS, supra note 8, at 346-48. 18. Jefferson�s epitaph, stating the three achievements �most to be remembered,� in Jefferson�s handwriting, is reprinted as a frontispiece to Adrienne Koch & William Peden, The Life and Selected Writings of Thomas Jefferson (1944). 19. See generally BECKER, supra note 12 (presenting classic Lockean analysis). A heated debate about Jefferson�s was briefly ignited by Garry Wills. See generally GARRY WILLS, INVENTING AMERICA (1979). More recent works include that by Jefferson critic Pauline Maier and the Morton White�s important philosophical analysis placing Jefferson�s thought at the center of the founding ideas. See generally PAULINE

MAIER, AMERICAN SCRIPTURE (1990); MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION (1968). 20. See BERNARD BAILYN, TO BEGIN THE WORLD ANEW: THE GENIUS AND AMBIGUITIES OF THE

AMERICAN FOUNDERS 5 (2003). This neglect may be ending. Bernard Bailyn, often a harbinger of great things in American historiography, has recently focused attention on the Statute, and has called it Jefferson�s �most eloquent state paper,� and given it pride of place in his most recent collection of essays. Id. 21. See THE VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, ITS EVOLUTION AND CONSEQUENCES 109-12, 139-45 (Merrill D. Peterson & Robert C. Vaugan eds., 1988) [hereinafter VIRGINIA STATUTE FOR RELIGIOUS

FREEDOM]. Jefferson seems to have drafted the Statute either in the fall of 1776 or the spring of 1777, as part of a general revision of the Virginia laws occasioned by the outbreak of the revolutionary war. Id. The statute enjoyed the vigorous support of the dissenting community, one that warmly welcomed the revolutionary liberty proclaimed in all quarters. Id. Jefferson�s bill also met the determined resistance of much of the Anglican establishment and social elite, including the opposition of Governor Patrick Henry. Id. The new Virginia House of Delegates contented itself with removing the burdens on dissenting sects, and Madison only secured passage of the bill in 1786 while Jefferson was in Paris. Id. 22. As an example, the two most popular editions of Jefferson�s writings this century, each by leading Jefferson scholars, contain markedly different versions of the statute. Compare A Bill for Establishing



neglected because it happens to lie across the lines between increasingly disparate scholarly specialties. For the intellectual historian, the Statute seems largely the idiosyncratic product of one man�s mind, not the result of a particular �trend� or strain of colonial thought. To the traditional biographer or historian, the Statute�s history tends to fall between the biography of Jefferson the draftsman, and that of Madison the legislator.

For the legal historian and the First Amendment theorist, the Statute falls directly across the (regrettable) scholarly divide separating the speech clause from the religion clauses, and announces a natural right to the freedom of mind that fits comfortably �under� neither of them.23 After all, Jefferson was in France when what became the First Amendment was drafted and passed. Thus Madison�s lawyerly and positivist Memorial and Remonstrance, although of course written in support of the Jefferson�s Virginia Statute, is more �on point� with the scant legislative history of the First Amendment, written by its drafter, than the Statute it was actually written to support.24 And finally for the philosopher, the statute proclaims a naturalistic ethic, a very distinct theory of rights, and even a moral epistemology that was until recently consigned to the past rather than the present of moral and political philosophy.

Recent developments in all these fields nevertheless suggest that the time has come to attempt to formulate a uniquely Jeffersonian theory of rights.25 The theory propounded here will be a Jeffersonian theory in three related ways. First, the theory will take its direction from the writings of Jefferson himself, as well as those thinkers who seem to have had the most direct impact on his

Religious Freedom, in WRITINGS, supra note 8, at 346-48, with KOCH & PEDEN, supra note 18, at 311. The definitive text is Julian Boyd�s, The Papers of Thomas Jefferson. THE PAPERS OF THOMAS JEFFERSON 545-48 (Julian P. Boyd ed., 1950) [hereinafter BOYD]. 23. The enacted Statute�s first sentences announces as its foundation that �Almighty God hath created the mind free.� See KOCH & PEDEN, supra note 18, at 311. The notion that freedom of thought is the core right protected by both the speech and the religion clauses is not unknown, even in Supreme Court jurisprudence. Justice Cardozo famously remarked that, �neither liberty nor justice would exist� without �freedom of thought, and speech,� and that of the �liberty of mind,� �one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.� Palko v. Connecticut, 302 U.S. 319, 326-27 (1937). But modern scholarship nearly always treats the speech and religion clauses separately, and rarely are the principles of one employed in analyzing the other. 24. See generally Everson v. Bd. of Educ., 330 U.S. 1 (1947) (relying extensively on the Memorial and Remonstrance). 25. The work of Michael Zuckert has been important in emphasizing that a new, rights-based theory of morality was articulated by the founders, one that rejected the duty-based natural law tradition of classical republicanism, a tradition that generally felt obliged to draw all conclusions from the fundamental �law,� the will of God. See generally ZUCKERT, NATURAL RIGHTS REPUBLIC, supra note 7; MICHAEL P. ZUCKERT, NATURAL RIGHTS AND THE NEW REPUBLICANISM (1994) [hereinafter ZUCKERT, NEW REPUBLICANISM]; DIANE

MEYERS, INALIENABLE RIGHTS: A DEFENSE (1985); ALAN GEWIRTH, REASON AND MORALITY (1978). The philosophical notion of an attempt at a consistent and justifiable effort at a �Jeffersonian� theory, as distinguished from a detailed historical object that could be rightly called �Jefferson�s theory,� is explained and defended for Locke in The Lockean Theory of Rights. See generally SIMMONS, LOCKEAN THEORY, supra note 7.



thinking about rights, notably Locke, Hutcheson, and Price.26 Second, the theory will emphasize the features of Jefferson�s thought most distinctive to him, and in particular, his enduring concern for �the freedom of conscience, of thought, and speech�27 that constitutes the core inalienable, legal, and natural rights protected by his Virginia Statute.

And finally, the theory will seek to be �Jeffersonian,� rather than claiming to be Jefferson�s own, because although it will not intentionally depart from Jefferson�s considered expressions on these subjects, it cannot, of course, be asserted that the theory propounded here would entirely meet with his approval. The theory will seek to construct a defensible Jeffersonian theory of rights, one can withstand current philosophical scrutiny. Current controversy demands a consistent, naturalistic ethics, one that can defeat both the so-called �naturalistic fallacy� and the contemporary, global forms of skepticism. The theory begins with the Jeffersonian principle of the free mind as the core, indubitable fact of our experience. From this modest epistemological basis, the theory will attempt to show that a rights-based natural morality may be logically derived, while relying on nothing more controversial than the demand of non-contradiction. The goal of the present work is a more creative effort at the Jeffersonian Theory, rather than a mere restatement of Jefferson�s view of righs.

NATURAL RIGHTS AND CLASSICAL REPUBLICANISM

The thinkers of the modern Enlightenment set themselves the goal of recapturing, and improving upon, the fearlessly rational and scientific stance toward the world that had been born among the Greeks.28 They believed the clear light of �Reason� that had guided the ancients had been nearly snuffed out

26. The fundamental influence of Locke on the founding generation generally, and on Jefferson and the Declaration in particular, were regularly emphasized at the time, and admitted to by Jefferson himself. He named Locke as one of the three greatest men of all time, Letter to Rush, in POLITICAL WRITINGS, supra note 10, at 427, noted Locke�s influence specifically on the Declaration, Letters to Lee and Madison, in POLITICAL

WRITINGS, supra note 10 at 145-48, and declared that Locke�s book on government was �perfect as far as it goes,� Letter to Thomas Randolph, in POLITICAL WRITINGS, supra note 10, at 261. Jefferson found Locke�s partial toleration for religious sects insufficient, and believed that �where he stopped short, we may go on.� 1 BOYD, supra note 22, at 548 (notes on Locke and Shaftesbury). On the other hand, the philosophical inspiration for the Virginia Statute has not been thoroughly explored, and it is one of the purposes of this article to suggest the philosophical influences that seem most powerfully at work in the bill. Arguments for the influence of Richard Price and Francis Hutcheson will be presented in the course of the analysis. 27. VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21. 28. See Immanuel Kant, What is Enlightenment? [Was Ist Aufklarung?] (1784), in ISAAC KRAMNICK, THE

ENLIGHTENMENT READER 1 (1995). Kant states that: Enlightenment is man�s release from his self-incurred tutelage. Tutelage is man�s inability to make use of his understanding without direction from another. . . . Sapere aude [Dare to know]! Have courage to use your own reason!�That is the motto of enlightenment.

Id.



in the medieval age by Kings, Emperors, and Popes after the sack of Rome.29 They saw in the enforced orthodoxy of the medieval Inquisition the very essence of an irrational and tyrannous assault on individual thought, and indeed on truth itself.30 The European Enlightenment, and indeed modern science and philosophy, began in this effort to recapture truth from authority.31 Modern philosophy turned inward with Descartes, not only for a source of truth beyond the corrosive doubt of the skeptic, but also for a truth placed permanently beyond the reach of power.32

The founders of modern philosophy found this source of truth in consciousness itself, and in the �person� that consciousness defines in Locke.33 The great advance of modern thinkers lies not in their supposed discovery of the dignity of the individual or the power of self-direction,34 nor in their

29. See Richard Price, Additional Observations on the Nature and Value of Civil Liberty and the War with America (1777), reprinted in RICHARD PRICE AND THE ETHICAL FOUNDATIONS OF THE AMERICAN REVOLUTION 147 (Bernard Peach ed., 1979) [hereinafter PRICE AND THE ETHICAL FOUNDATIONS] (quoting FRANCES

HUTCHESON, 2 A SYSTEM OF MORAL PHILOSOPHY 289 (1755)). The ruling metaphor in French and English is that of illumination, as in D�Alembert�s �l�age des lumieres,� while in the (perhaps better) German the emphasis is on clarity, the �en-clearing� or Aufklarung. ISAAC KRAMNICK, INTRODUCTION TO THE

ENLIGHTENMENT READER ix (1995). Kant was favorably impressed with the American constitution, suggesting it served at least in some European quarters as a �lesson to the world,� as Jefferson hoped. See IMMANUEL

KANT, THE CRITIQUE OF JUDGMENT 221 n.4 (1951). 30. A favorite example was the arrest of Galileo for teaching, with Nicholas Copernicus, the earth moved �round the sun. In the Preface to the first Critique, Kant announces his enlightenment aim as �clearing� wasteful ground, and in �suppos[ing] that objects must conform to our knowledge� rather than the reverse, he was �proceeding precisely along the lines of Copernicus.� See IMMANUEL KANT, CRITIQUE OF PURE REASON 14 [Axxi], 22 [Bxvi] (Norman Kemp Smith trans., 1965) (1929). 31. See Francis Bacon, Advancement of Learning (1623), in 30 GREAT BOOKS OF THE WESTERN WORLD 88, 101 (Adler ed., 1952) (stating �liberty of speech inviteth and provoketh liberty to be used again, and so bringeth much to a man�s knowledge�). Francis Bacon, who earned Jefferson�s undying respect, was among the early leaders of this modern movement. Id. Bacon, like Locke, respected the freedom of inquiry in practice as well as theory, and offered arguments for consideration, rather than expounding mysteries or dogma in what might be called the continental style, for example, of a Leibniz, a Spinoza, a Fichte, or a Hegel. Bacon �do[es] not presume by the contemplation of nature to attain to the mysteries of God . . . [But] God hath framed the mind of man as a mirror or glass, capable of the image of the universal world.� Id. at 3. Instead, �I propounded my opinions naked and unarmed, not seeking to preoccupate the liberty of men�s judgments by confutations.� Id. at 101. See generally Novum Organum, in 30 GREAT BOOKS OF THE WESTERN WORLD, supra, at 105 (1620). They who have presumed to dogmatize on:

[N]ature, as on some well investigated subject, either from self-conceit or arrogance, and in the professorial style, have inflicted the greatest injury on philosophy and learning. For they have tended to stifle and interrupt inquiry exactly in proportion as they have prevailed in bringing others to their opinion. . . . But the more ancient Greeks [prior to the sophists] (whose writings have perished), held a more prudent mean between the arrogance of dogmatism, and the despair of scepticism . . . .�

Id. 32. See LEO STRAUSS, NATURAL RIGHT AND HISTORY 87 (1953). Philosophy begins in the discovery of a distinction between our �way� and the �way� of others. Id. Thus the search for a direct experience or observation of facts that may decide the question of truth for all. Id. 33. See JOHN LOCKE, 1 AN ESSAY CONCERNING HUMAN UNDERSTANDING 467 (Fraser ed., 1959) (1894) [hereinafter ESSAY]. 34. THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR 147-48 (Warner trans., 1954). Thucydides�



supposed discovery of non-conventional or �natural� moral standards;35 nor even in their �discovery� of individual claim-rights.36 The greatness of modern

recounting of the most famous of all ancient Greek speeches, Pericles� funeral oration, pronounces near the end that this very fact is the ultimate glory of Athens. Id.

Taking everything together then, I declare that in my opinion each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and do this, moreover, with exceptional grace and exceptional versatility. And to show that this is no empty boasting [or Homeric exaggeration from what is really true] but real tangible fact, you have only to consider the power which our city possesses and which has been won by those very qualities which I have mentioned.

Id. Plutarch holds, in his Life of the same great Pericles that while: [T]he mere outward sense, being passive in responding to the impression of the objects that come its way and strike upon it, perhaps cannot help entertaining and taking notice of everything, . . . useful or unuseful; but, in the exercise of his mental perception, every man, if he chooses, has a natural power to turn himself upon all occasions, and to change and shift with the greatest ease to what he shall himself judge desirable. So that it becomes a man�s duty to pursue and make after the best and choicest of everything, that he may not only employ his contemplation, but may also be improved by it.

Plutarch, Pericles, in PLUTARCH�S LIVES 35 (Dryden trans. 1991). 35. See 1 GREEK TRAGEDIES 179, 181 (Green & Latimore 1960). The painful conflict between conventional and divine moral standards are of course the subject of Sophocles� Antigone, probably produced in 422 B.C. Id. 36. The current consensus is that the notion of natural, moral, and subjective claim-rights or prerogatives was born with modern natural law theory and first consistently expressed in Grotius. See generally RICHARD

TUCK, NATURAL RIGHTS THEORIES (1979); ANNABEL BRETT, LIBERTY, RIGHT, AND NATURE (1997). Surely Leo Strauss and Francis Cornford are correct to suggest that the notion of subjective rights cannot be asserted where authority, whether divine or human, is unquestioned and unquestionable. See Charles L. Reid, The Medieval Origins of the Western Natural Rights Tradition: The Achievement of Brian Tierney, 83 CORNELL L. REV. 437, 438-39 (1998) (collecting current sources). This posit of �unquestionable authority� hardly seems a fair description of the Greek Enlightenment. See id. On the contrary, the glory of the ancient Greek democracy was established because every citizen possessed isonomia (equality before the law) and isegoria (equality of speech). See MARK MUNN, THE SCHOOL OF HISTORY: ATHENS IN THE AGE OF SOCRATES 26 (2000) (collecting sources). The Greeks certainly believed that the citizen�s obligation to his polis was natural, the man was a political animal who was inherently attached to his State, and that he therefore was not originally �born� or created in freedom, as the moderns such as Jefferson would later emphasize. Aristotle, Politics, in 2 THE

COMPLETE WORKS OF ARISTOTLE 1987 (Barnes ed., 1984) (�man is by nature a political animal�). But Socrates spoke of Athens� �utmost freedom of speech,� he exercised that freedom to hold conventional standards of justice or goodness up to reasoned scrutiny, and to explicitly test them against their �natural� or true forms. Gorgias 461e, in PLATO, THE COLLECTED DIALOGUES 244 (Hamilton & Cairns eds., 1961) [hereinafter THE COLLECTED DIALOGUES]. Socrates easily criticized the (Kelsenian and Hobbesian) idea that what is right is identical to any standard a state may choose to enforce, and to be readily understood, and could as readily be criticized in turn by the (Nietzchean) Callicles for �looking to what is fine and noble, not by nature, but by convention,� and he allows questioning about the �honorable� and �about the just and the good� to occur in the presence of the young. See Theaetetus 177 c-d, in THE COLLECTED DIALOGUES, supra, at 882 (discussing Kelsenian and Hobbesian ideas); Gorgias 482e-483d, in THE COLLECTED DIALOGUES, supra, at 266 (discussing Nietzchean Callicles); LEO STRAUSS, NATURAL RIGHT AND HISTORY 85 (1950) (citing Plato�s Republic 634d-635a, reprinted in THE COLLECTED DIALOGUES, supra, at 770) (expounding on �honor� and �about the just and the good�). The concept of �civic rights,� is unambiguously found in Plato. See Apology at 30d, in THE COLLECTED DIALOGUES, supra, at 16; 1 THE DIALOGUES OF PLATO 413 (Jowett trans. ed., 1892) [hereinafter THE DIALOGUES OF PLATO], in PLATO: FIVE DIALOGUES 35 (Grube trans., 1981) (�disfranchise�). In most translations, Plato�s Socrates makes it clear that even if he succeeds in depriving a better man of civic rights or even killing him, �the law of God� will prevent a better man from suffering actual harm at the hands of a worse one. Apology 30d, in THE COLLECTED DIALOGUES, supra, at 26 (Hugh Tredenick trans.); cf. THE



theorists in general, and of Jefferson�s thought in particular, lies instead, first, in the explicit grounding of morality in the inherent and inalienable freedom of the human being and human mind. This freedom takes pride of place and is no longer a corollary or residual category founded on the �natural duties� to God or nature.37 Second, their greatness lies in their extension of these natural prerogatives from the legal and artificial category of �citizen� to the universal and natural category of person.38 The Americans, speaking through Jefferson, announced the modern theory of politics in founding a country on the �unalienable rights� of human beings. This theoretical formulation was distinctively modern, and the struggle over the meaning and legacy of the natural rights thesis lay near the center of the concerns about the nature and limits of a �republic,� a much older concept, in the ensuing centuries.

The enthusiasm for �classical republicanism� among America�s revolutionary generation, recently reemphasized, may be readily understood as a strand of the ancient and early modern European heritage. The �republic� has always been compelled to define itself against the competing idea of divinely ordained kingship.39 The republican ideal, formed and regularly reformed in DIALOGUES OF PLATO, supra, at 413 (same is �not permitted,� and is a sin against God). And the �Athenian� in the Laws describes a scandalous group of theorists who attack the very idea that the moral duties may be natural at all, and who:

[A]ctually declare that the really and naturally laudable is one thing, and the conventionally laudable quite another, while as for right, there is absolutely no such thing as a real and natural right, that mankind are eternally disputing about rights and altering them, and every change thus made, once made, is from that moment valid, though it owes its being to artifice and legislation, not to anything you could call nature.

Laws X 889-890, in THE COLLECTED DIALOGUES, supra, at 1445. 37. My inspiration here is the greatest of the pamphlet of the political preachers of the pre-revolutionary era, Elisha Williams and Michael Zuckert. Elisha Williams, The Essential Rights and Liberties of Protestants, A Seasonable Plea for the Liberty of Conscience and the Right of Private Judgement, etc. (1774), in POLITICAL

SERMONS OF THE FOUNDING ERA 55 (Ellis Sandoz ed., 1991). See generally ZUCKERT, NATURAL RIGHTS

REPUBLIC, supra note 7. The thesis that morality is properly grounded in the inherent prerogatives of free people rather than in the natural or religious duties is a thesis I hope to support here. The furthest a (usually) duty-based liberal such as Locke could go was to assert a right to �innocent delights� that violate no conceivable religious duty and to urge toleration of most protestant sects but not Catholics. See 1 BOYD, supra note 22, at 548 (Jefferson�s discussion of Locke�s Letter Concerning Toleration). The most sophisticated treatment of rights in Locke is found in the work of A. John Simmons. See SIMMONS, LOCKEAN THEORY, supra note 7. 38. In his article on Enlightenment, Kant argues that adult humankind has nevertheless spent centuries in the custody of self-appointed �guardians� of a clearly Platonic and religious ilk, and these social authorities and superiors have taken on the expert task of doing their thinking for them. Kant, supra note 28. �That the step to competence is held to be very dangerous by the far greater portion of mankind (and by the entire fair sex)�quite apart from its being arduous�is seen to by those guardians who have so kindly assumed superintendence for them.� Id. The idea of universal moral qualities appeared in Roman thought, particularly in those favorites of Jefferson, Cicero and Epictetus, but they remained undeveloped. See MOSES HADAS, ESSENTIAL WORKS OF

STOICISM 86, 98 (reprinting Epictitus l, Manual I, 44). 39. The Periclean funeral oration is a defense of the superiority of the free Greek citizen over the subjects of absolute kings claiming the powers of gods. See THUCYDIDES, supra note 34, at 147-48. Modern partisans of western civilization argue that the republican ideas of rule by the citizens is the �original� style of western



this conflict, has often demanded martial sacrifice from the citizen in the battle for collective freedom from kings. It was natural for the colonists to celebrate �republican� martyr Algernon Sidney, who Jefferson cited as one of four inspirations for the Declaration. But it was also was understandable that individual rights might be forgotten in the heat of collective battle. Thus, in the first heady days of independence, Samuel Adams envisioned America as a �Christian Sparta� whose collective representative, the State, was itself a �moral person.�40 Charles Lee longed for the ancient republics whose citizens learned �from enfancy to deem themselves the property of the State,�41 and Benjamin Rush argued that �[e]very man in a republic is public property.�42

This strand of republicanism tended to be emphasized in England and Europe, where the struggle with the hereditary and �divine� prerogatives of kings and aristocrats was immediate and implacable, and where martial sacrifice to the republic often itself tended toward martial tyranny.43 Although these martial demands were understandable as calls to wartime sacrifice,44 the government, while absolute and divine-right kingship was initially an �oriental� tradition. Thucydides, The Peloponesian Wars, reprinted in A.N.W. SANDERS, GREEK POLITICAL ORATORY 33-36 (1970). It is historically true that the republic was founded in Greece and furthered by its Roman successor, although the tyrants of Greece and the execution of Socrates should make us hesitate to associate absolutism exclusively with �oriental� or kingly despots. Id. 40. GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC 58 (1969) (quoting Samuel Adams, Result of the Convention of Delegates, Newburyport, Mass., 1778). 41. WOOD, supra note 40, at 53 (quoting Charles Lee, Letter to Patrick Henry, July 29, 1776). 42. WOOD, supra note 40, at 61 (quoting Samuel Adams, Letter to Caleb Davis, Apr. 3, 1781); id. at 53 (quoting Charles Lee, Letter to Patrick Henry, July 29, 1776); id. at 58 (quoting Samuel Adams, On the Present States of America, Oct. 3, 10, 1776); id. at 61 (quoting BENJAMIN RUSH, ON THE DEFECTS OF THE

CONFEDERATION (1787)). 43. Jonathan Mayhew, on the anniversary of the execution of Charles I in 1750, noted that the ancient Britains were a people �extremely jealous of their liberties, as well as a people of a martial spirit,� but he was not an admirer of the Cromwellian dictatorship. JONATHAN MAYHEW, A DISCOURSE CONCERNING [OPPOSING] UNLIMITED SUBMISSION, ETC. 44 (1750) (Mayhew is an ancestor of this writer). Classical republican theory (Plato, Aristotle, Cicero, Plutarch as synthesized by Polybius) explained government development and overthrow in terms of opposition each type engendered, as well as the sort of internal decay to which each one was heir. POLIBIUS, THE RISE OF THE ROMAN EMPIRE 303 (1979). Thus monarchy decayed toward tyranny; aristocracy arose to oppose tyrannous monarchs; aristocracies declined toward corrupt oligarchies, and the anarchy and license of triumphant democracy tended to decay toward the martial dictatorship of one. Id. The best government, it was often concluded, particularly in England, was a mixed form that would preserve the virtues and resist the vices of each. See LANCE BANNING, THE JEFFERSONIAN PERSUASION 221-24 (1978) (discussing The [Crown�s] Answer to [Parliament�s] Nineteen Propositions, June 21, 1642 (the �kings constitution�)); see also MAYHEW, supra, at 34. The crown under Charles eventually sought to ground its claim to rule on the ancient western traditions of mixed government, as it had become clear that the absolutist theory of the divine right of kings which made it �sedition� to dispute the king�s power, or made kings �little gods� on earth, was by this late date entirely untenable. See MAYHEW, supra, at 42-44; see also BANNING, supra. See generally ALAN CRAIG HOUSTON, ALGERNON SIDNEY AND THE REPUBLICAN HERITAGE IN

ENGLAND AND AMERICA (1991). 44. It is worth noting that the founding work of the recent republican enthusiasm, The Ideological Origins of the American Revolution, was originally an introductory chapter called �The Transforming Radicalism of the American Revolution,� in Bailyn�s Pamphlets of the American Revolution, 1750-1776. BERNARD BAILYN, THE

IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); BERNARD BAILYN, PAMPHLETS OF THE

AMERICAN REVOLUTION, 1750-1776 (Bernard Bailyn ed., 1965) [hereinafter BAILYN, PAMPHLETS]; see WOOD,



model of militant Sparta was recognized by cooler heads as a poor one for the new republic.45 In place of a such collective or statist republicanism, they formulated the modern theory of the natural rights of man. They created a doctrine they hoped would inspire the nation during both war and peace. It was a doctrine that would place their revolution for popular sovereignty and individual liberty on the firmest possible moral footing. This is the theory I call Jeffersonian.

It must be emphasized that the Jeffersonian position was formed and solidified during a period of the most intense political and intellectual turmoil. While Anglo-American debate in the seventeenth and eighteenth centuries was generally couched in terms of a modern republicanism on the one hand and a �mixed,� monarchical government on the other, the republican cause was home to a vast array of disparate and often incompatible theories.46 Even if those who favored popular government could agree that people originally possessed rights and that they constructed government by original consent, these general republican premises imposed few real limits on a theorist�s potential conclusions.

This was particularly true in France, where Republicans faced implacable and deeply entrenched aristocratic foes who wielded enormous power. There, the martial republic imagined by Rousseau would be forced to confront these enemies with an absolutely united and equally unbreakable phalanx. All the terms of Rousseau�s social contract, �rightly understood,� were �reducible to a single one, namely, the total alienation of each associate [citizen] of himself and all his rights to the total community.�47 Every citizen placed �his person and all his powers under the supreme direction of the general will�; every supra note 40, at 9 n.17. Bailyn�s original label for these views as �radical� or extreme fits both the overblown fear of corrupting British power (as emphasized by Bailyn), as well as the nearly opposite tendency to exhalt the power of the republican State emphasized by his student, Wood. WOOD, supra note 40, at 59-61; see BAILYN, PAMPHLETS, supra. Although these extreme views receded unevenly with the peace, the tendency toward both these extremes is readily understandable as the inchoate republic went to war with the monarchy. These martial trends were soon played out to their sanguinary limit in the revolution and wars of the First French Republic. 45. Jefferson urged in Notes that legal protections for the rights of man be etched deeply into the frame of the new government, and that this be done immediately, lest �a single zealot may commence persecutor, and the better men be his victims.� Notes on Virginia, Query XVII, reprinted in WRITINGS, supra note 8, at 287. In the modern period, Cromwell was the �zealot� most colonists would have had in mind, following the virtuous Sidney in their criticism of what was often called his �Puritan dictatorship.� See HOUSTON, supra note 43, at 28-32. 46. See JOANNE FREEMAN, AFFAIRS OF HONOR: NATIONAL POLITICS IN THE NEW REPUBLIC 1-10 (2001). This vagueness caused early American politicians considerable trouble. Joanne Freeman argues that the unclear and broad concepts that made up �republicanism� at the founding presented the early participants in the young government with painful dilemmas of principle and policy, and provided them with few tools for resolving them. Id. Republicans, like advocates of most political movements, were much more certain and specific about what they were against than what they were for, and the confused debates and relations of the first Congress provided distressing evidence of these uncertainties. Id. The founders were walking on untrod ground with few ideological maps to guide them. See id. 47. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 60-61 (1768).



citizen was �an indivisible part of the whole,� which was �an artificial and corporate body� possessed of a �common ego, its life and its will.�48 This was certainly an admissible conclusion from classical republican premises, and Gordon Wood has shown that its cognates about a �Christian Sparta� enjoyed considerable popularity in America at the beginning.49

Prominent firebrands such as Samuel Adams understandably called their countrymen to arms in the purely martial language of self-sacrifice. This spirit seems to be the primary source of the classical republican arguments resurrected by Gordon Wood and others. When the collective�s liberty is endangered by a monarch, the only proper republican response is the unity of an armed people in defense of their rights. The people justly demand that all cast aside personal interest in the hour of danger, and mutually pledge their lives, their fortunes, and their sacred honor to the cause.

Samuel Adams� more sober cousin John was well aware of the threat that the radical, statist republicanism of French thinkers such as de Mably posed to freedom, combining as they often did the demand for a the communal unity of the people with calls for a �community of property� as well.50 De Mably was cited as inspiration by the first modern Socialist, Gracchus Babeuf, at his trial several years later.51 Adams� Defense of the Constitutions of America of 1787 was in part a response to French arguments �for the abolition of debts, equal division of property, and the abolition of senates and governors.�52 Government power would be concentrated in an omnipotent republican legislature with no external checks whatsoever.53 Under very dire circumstances, only partially their own fault, French politicians and agitators might be forgiven for seeking mainly strength in their new, and soon terrible, republic. American republicanism was much more happily placed to succeed, and had always been spared the abuses and corruption of French aristocratic government. But the American founding, too, was heir to a lively republican

48. Id. (emphasis added). 49. Whether we can agree further with Wood that Rousseau�s collapse of the prerogative of each into an unlimited �general will� of the collective constitutes a �brilliant� republican effort, is another matter. WOOD, supra note 40. Rousseau�s most dedicated and influential political follower were clearly Robespierre and St. Just. See generally CAROL BLUM, ROUSSEAU AND THE REPUBLIC OF VIRTUE: THE LANGUAGE OF POLITICS IN

THE FRENCH REVOLUTION (1986). A modern scholar of Jeffersonian thought has stepped back from his earlier enthusiasm for classical, martial republicanism. See Lance Banning, Some Second Thoughts on Virtue and the Course of Revolutionary Thinking, in CONCEPTUAL CHANGE AND THE CONSTITUTION (Terrance Ball & J.G.A. Pocock eds., 1988). 50. JOHNSON KENT WRIGHT, A CLASSICAL REPUBLICAN IN EIGHTEENTH CENTURY FRANCE: THE

POLITICAL THOUGHT OF MABLY 13 (1997) (�communaute des biens�). 51. SHLOMO BARER, THE DOCTORS OF REVOLUTION 35 (2000). 52. II PAGE SMITH, JOHN ADAMS 690 (1962) (quoting Adams Letter, Nov. 30, 1786). 53. Vox populi vox dei was sometimes true, Adams wrote at the height of the French Terror, but it might also be �the voice of Mahomet [Muhammad], Caesar, Catiline, the Pope, of the Devil.� II SMITH, supra note 52, at 690 (quoting Adams Letter, Nov. 30, 1786); id. at 855 (Letter, Feb. 8, 1794). See generally WRIGHT, supra note 50 (discussing De Mably�s republicanism).



tradition that, by the late eighteenth century, already contained the core ideas would soon inspire the Conspiracy of Equals and later, �red republicanism.�54

None of this, of course, was entirely apparent to actors at the time. But surely the intensity and the intransigence, combined with the clarity of Jefferson�s personal vision, provided vital direction to the young country. Americans sought to expand the powers of electoral democracy without threatening individual rights in a way that proved unattainable in France. The Jeffersonian natural rights thesis competed with complex and contradictory demands. America avoided any serious totalitarian threat largely because the Jeffersonians firmly attached the burgeoning movement toward popular democracy to its own, bedrock doctrine of inherent and inalienable rights,55 rights placed beyond the reach of any collective power or construct. Jeffersonians embraced the �popular� cause and prevented it from becoming totalitarian.

THE ENLIGHTENMENT AND THE RIGHTS OF MIND

The best place to begin discussion of the modern philosophy of natural right is with John Locke�s definition of the moral agent, the �self,� as explained by his technical and �forensic� definition of persons in the Essay Concerning Human Understanding.56 John Locke probably had more influence on the thought and practice of his age than any other philosopher. Jefferson�s

54. See BARER, supra note 51, at 34-37. We too often forget that collectivism and attacks on individual rights were always a possible position within republicanism, a very broad concept covering all of monarchy�s opponents, ancient and modern. See FREEMAN, supra note 46, at 5-9. Many took their inspiration from the thinkers criticized by Adams in 1787, particularly the �classic republicanism� of de Mably, and that Robespierre�s dictatorship sought to scrupulously enact the statist (and potentially totalitarian) plan of Rousseau�s Contrat Social. See BLUM, supra note 49. The French and American intellectual scenes were as connected as a ten week round trip by sea could make them throughout the American founding and its early formative years. See BERNARD A. WEISBERGER, AMERICA AFIRE 73-80 (2000). Although the radical Gracchus Babeuf of 1796 is usually thought of as the first �modern� socialist, he took his name from the Roman Republican proponent of an �agrarian law� of redistribution, and saw himself as an inheritor of Robespierre�s Rousseauist mantle. See BARER, supra note 51, at 14, 25-29, 34-36. He told his trial jurors he was inspired by de Mably and Diderot. See id. Modern totalitarian �state� socialism was soon clearly advocated by the German philosopher and agitator J.G. Fichte in his Closed Commercial State of 1800, and in his frankly totalitarian Addresses to the German Nation in 1807 (the Reden). See generally J.G. FICHTE, CLOSED

COMMERICAL STATE (1800); J.G. FICHTE, ADDRESSES TO THE GERMAN NATION (1807). Meanwhile, a much more influential member of Babeuf�s 1796 �Conspiracy of Equals,� Buonarroti, survived the arrests and trials. BARER, supra note 51, at 35-36. He was expelled to Switzerland in 1806, the year Napoleon conquered Prussia and Hegel published the Phenomenology of Spirit. See generally HEGEL, PHENOMENOLOGY OF SPIRIT (1806). Twenty years later, Buonarroti, the Romantic �living bearer of Robespierre�s legacy,� returned to France to wide acclaim. BARER, supra note 51, at 36. He won new socialist disciples Louis Blanc and August Blanqui, both later Marx�s socialist contemporaries and competitors in 1848. See id. at 34-37, 353-36. 55. See generally FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND

ABROAD (2003). The traditional recognition of the founders that passions unleashed by democracy are can be dangerous to liberty, which requires structural protections for individual and minority rights, has recently been generalized and brought up to date by Fareed Zakaria. See generally id. 56. See generally ESSAY, supra note 33.



fundamental philosophical premises, like those of most of his contemporaries, are Lockean. Jefferson explicitly cited Locke as the first source of the Declaration of Independence, and he famously counted him as one of the three greatest men who ever lived.57 But just as I hope to construct the most defensible Jeffersonian theory, so I hope to expound a �Lockean� basis for that theory with support from other thinkers as well.58

Locke�s goal in the Essay was to delineate both the powers and the limitations of human understanding. He seeks in a larger sense to teach us something of our place in the universe. He argues that this place lies between entirely blind ignorance on one hand,59 and the omniscience of God on the other,60 a place suited to our capacities and sufficient for our morality and happiness. Locke�s British common sense informs the entire effort. After all, he reminds us:

Our business here [on earth] is not to know all things, but those which concern our conduct. [I]f we can find out those measures, whereby a rational creature, put in that state in which man is in this world, may and ought to govern his opinions, and actions depending thereon, we need not be troubled that some other things escape our knowledge . . . . If we can find out how far the understanding can extend its view; how far it has faculties to attain certainty; and in what cases it can only judge and guess, we may learn to content ourselves with what is attainable by us in this state.61

Locke begins the Essay with his denial that any principles or ideas are in-born or �innate.� The thinkers Locke has in mind here are disputed, but surely he aims at specific doctrines such as that of the Platonic (and Pythagorean) anamnesis, the teaching that souls migrate and are reincarnated over time, and thus that genuine knowledge is actually memory of past lives. Here Locke displays his hostility to all forms of mysticism, Platonic and otherwise, as well as to any doctrine of �secret knowledge� that he believed had confounded and even enslaved minds in his own and previous centuries.62 In the Meno, Plato�s

57. Thomas Jefferson, Letter to Rush, Jan. 16, 1811, reprinted in POLITICAL WRITINGS, supra note 10, at 427. The other two are Newton, the greatest explorer of the natural realm, and Roger Bacon, who announced the freedom of thought and inquiry and, thereby, announced the beginning of the modern scientific worldview. Id. 58. See supra note 24 and accompanying text. See generally SIMMONS, LOCKEAN THEORY, supra note 7. 59. See generally RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979). This completely skeptical position is, in modern philosophy, occupied by Richard Rorty. Id. 60. See generally CHARLES TAYLOR, HEGEL (1975); Lawrence Dickey, Hegel On Religion and Philosophy, in CAMBRIDGE COMPANION TO HEGEL 301 (Beiser ed., 1993). The position of Godlike omniscience, on the other hand, is occupied by Hegel. See generally TAYLOR, supra; Dickey, supra. Hegel and the Hermetic Tradition provides a scathing critique of Hegelian omniscience and its pretensions to knowledge of, and even and participation in, the mind of God. See generally GLEN ALEXANDER MAGEE, HEGEL AND THE HERMETIC TRADITION (2001). 61. 1 ESSAY, supra note 33, at 31, 29 (emphasis added). 62. See generally PETER A. SCHOULS, REASONED FREEDOM: JOHN LOCKE AND ENLIGHTENMENT (1992). Locke�s project seems clearly aimed at the liberation of both learned and untutored minds, and education in the



Socrates accepts the teachings of certain (Pythagorean) �priests and priestesses� because �the soul is immortal and has been born many times, and has seen all things both here and in the other world, it has learned everything that is. So we need not be surprised if it can recall the knowledge of virtue or anything else.�63

Locke, by contrast, vigorously argues that nothing is implanted in the mind at birth, and that all the materials of reason and knowledge ultimately derive from experience.64 Our knowledge is entirely supplied by two �fountains,� the sensations produced by external objects, and those produced by our internal mental operations such as perception, thinking, doubting, reasoning, and willing. And just as we perceive the outer world through sensation, our perception of this internal world �might properly enough be called internal sense.�65 Locke�s Essay is very concerned with demistifying knowledge and proving that its sources are democratically available to all.66 In that admirable effort, he glides over many subtleties, and inconsistently expressed the view that every operation of the mind may be called a �sense,� �having ideas and perception being the same thing� is a primary example of this tendency.67

Locke proceeds to explain that �simple ideas� are those immediately known by the �clear and distinct perception�68 of �one uniform appearance� or

habits of intellectual autonomy. See generally id. 63. Meno 81c, in THE COLLECTED DIALOGUES OF PLATO 364 (Hamilton & Cairns eds., 1989). Locke himself leaves the immortality of the soul �to be disputed by others.� 1 ESSAY, supra note 33, at 128. He nevertheless later suggests that he places the doctrine of innate principles, and probably Platonism more generally, to be among the doctrines built upon false principles, a faith misled by its desires, hopes, and fancies. 2 ESSAY, supra note 33, at 448-49. See generally KENNETH SYLLVAN GUTHRIE, THE PYTHAGOREAN

SOURCEBOOK AND LIBRARY (1988). 64. 1 ESSAY, supra note 33, at 122. Locke states that, �[o]ur observation employed either, about external sensible objects, or about the internal operations of our minds perceived and reflected on by ourselves, is that which supplies our understandings with all the materials of thinking.� Id. 65. 1 ESSAY, supra note 33, at 123 (emphasis in original). 66. See 2 ESSAY, supra note 33, at 463 n.1. This goal is consistently derided as unworthy of philosophy, and his running battle with Locke�s text in the footnotes at the end of the Essay ends with a fierce condemnation of Locke in favor of Hegel. See id. 67. 1 ESSAY, supra note 33, at 127 (emphasis in original). 68. See generally SCHOULS, supra note 62. Locke pointedly noted in a letter to Stillingfleet that he diverges from Descartes on this point. See 1 ESSAY, supra note 33, at 22; 2 ESSAY, supra note 33, at 188-89. Descartes� mark of certainty was that of �clear and distinct ideas,� and thus, prohibited us from having any certain knowledge of things that are not clear to us. SCHOULS, supra note 62, at 17-24. Locke, however, disagreed on several crucial issues here. See 2 ESSAY, supra note 33, at 188-89. He maintains that we do have certain knowledge of several aspects of our experience that nevertheless we cannot entirely explain. See id.; see also id. at 406 (we have �but imperfect ideas of the operations of our minds, and of the beginning of motion, or thought, [or] how the mind produces either of them in us�). We thus have certain, �clear and distinct perceptions� of truths, even if we lack clear �ideas� or explanations for these truths. Id. at 188-89, 417-20. Therefore, we may have certain perception of truth, even where we cannot entirely explain these perceptions or how we have come to have them. Id. The (now unfortunately largely ignored) distinction between Lockean empiricism and Cartesian rationalism begins here. Cf. SCHOULS, supra note 62, at 26. Locke grounds certain knowledge in the internal and external perception, rather than the reason and arguments, of the knower. See id. at 17-30.



�conception� that cannot be further broken down.69 The mind perceives the separate, �simple ideas� of ice as the separate qualities of hardness and coldness, those of the lily as distinct appearances of whiteness and scent. These simple ideas are the building blocks and fundamental particles of thought. We may create an infinite variety of complex ideas, but it is beyond our power to �invent or frame one new simple idea.�70

The dominion of man, in this little world of his own understanding being what much the same as it is in the great world of visible things; wherein his power, however managed by art and skill, reaches no farther than to compound and divide the materials that are made to his hand; but can do nothing towards the making of the least particle of new matter, or destroying one atom of what is already in being.71

The difficulties and ambiguities inherent in this analysis are legion, and eighteenth century philosophy spent much of its energy seeking to resolve them. Particular to the present purpose is Locke�s concession that many principles seem indubitable, but are neither sensations nor conscious reflections on them. There seem to be principles that the mind immediately accepts, but which nevertheless do not fit into either of Locke�s two exclusive categories of �simple� ideas of sense and the �complex� ideas we construct of them.72 Locke acknowledges, indeed emphasizes, that some principles, such as non-contradiction, are entirely indubitable and �self-evident,�73 and that reason necessarily discovers these and �make[s] us firmly assent� to them.74 But he maintains that this proves neither innate ideas, nor a source for ideas beyond sensation.75 It proves only that �by the use of reason we are capable to come to certain knowledge.�76 Indeed, some truths are so plain to the educated mind that they are �perceived at first sight, . . . by bare intuition,� and that the certainty of direct perception of truth is superior to any reasoning.77

69. 1 ESSAY, supra note 33, at 145. 70. 1 ESSAY, supra note 33, at 145. 71. 1 ESSAY, supra note 33, at 145. 72. See generally THOMAS REID, ESSAYS ON THE ACTIVE POWERS OF MAN (1788). This point is forcefully made in support of philosophical libertarianism by Reid at the end of the following century. See generally id. 73. Id. at 290. 74. Id. at 39, 42. 75. See IMMANUEL KANT, THE CRITIQUE OF PURE REASON 22-23, 50-51 (N.K. Smith trans., 1965) (1929). Kant, of course, would find himself compelled to create an entirely mind centered universe based on the similar problem of synthetic priori truths that he could not derive from experience, but could neither deny nor account for any other way. Id. For an excellent assessment, see Norman Kemp Smith, Commentary to Kant�s Critique of Pure Reason (1999). 76. KANT, supra note 75, at 42. 77. 1 ESSAY, supra note 33, at 44 n.5 (Fraser note quoting Essay, Vol. 2 Bk. IV, ch. ii, sec. 1; 2 Essay at 176-77). Fraser discusses the certainty of �intuitive knowledge,� such as the truth of the non-contradiction principle, as those of which the mind �perceives the truth as the eye doth light, only be being directed toward it.� Id.



Here we arrive at the bedrock of Locke�s argument: we can only gain certain knowledge by our own act of the �direct perception� of truth. Knowledge can never be obtained second hand by studying the claims of others. The certainties upon which all knowledge is built only by each individual, and then only by her own free act. One may describe and disseminate the means, the methods, and the techniques for seeking knowledge. But those means themselves may only produce knowledge through their actual, and entirely individual, employment. Certain knowledge can never be conveyed from one mind to another, because genuine knowledge consists in the individual�s own immediate perception of truth. Certain knowledge can, however, be achieved only within the mind of each individual, by the self-directed act of each individual, who must directly perceive these truths for herself. In these passages, we sense Locke�s complete commitment to the freedom of mind. The intellectual autonomy of each person is for Locke both a fact and a principle, and one that he demonstrates in practice as well in argument.

Locke, therefore, offers his own views for examination and urges their consideration, but never imposes them in the manner of a dogmatist. Locke�s principle of intellectual autonomy is so consistently and deeply held that this principle, as distinguished from its method, cannot itself be taught. No one can be effectively commanded, or even effectively instructed, to think for oneself. This philosophical premise is not expressed on the surface of Locke�s writing, in the doctrines he expounds, or in the results he believes he has reached. His core teaching lies in the method by which Locke achieves his results, a method he demonstrates and then urges his reader to employ and experience for himself. Locke denies our right to call anything knowledge, including Locke�s own conclusions, unless we have directly and immediately perceived their truth. Locke does not so much argue for intellectual autonomy as demonstrates it, while challenging his reader at every step to do the same.

This is well shown in Locke�s few explicit discussions of the freedom of mind, in the Essay and elsewhere. At one point he explicitly acknowledges the difficulty of conveying the mind�s actions in words, and urges the reader instead to reflect on the actions of his own mind.

Such is the difficulty of explaining and giving clear notions of internal actions by sounds, that I must here warn my reader, that ordering, directing, choosing, preferring, & etc. which I have made use of, will not distinctly enough express volition, unless he himself will reflect on what he [himself] does when he wills.78

Thus in the chapter of the Essay concerned to define �powers,� Locke describes the �will� as �the power of the mind to determine its thought.�79 This 78. 1 ESSAY, supra note 33, at 320 (emphasis omitted). 79. 1 ESSAY, supra note 33, at 320.



seems to leave the terms liberty or freedom to refer only to physical liberty.80 But only a page later he emphasizes that will and liberty are merely �powers� or capacities, and that it is as improper to ask whether the �will� is free as to ask whether freedom is free. As to all human capacities or powers, �it is the mind that operates, and exerts these powers.�81 Therefore, the crucial question is the extent to which the mind of the agent is free or determined.82 Although Locke�s considered views must be drawn from statements scattered through his writings, his commitment to freedom of mind clear throughout.83

In the Conduct of Understanding, he explicitly discusses the �liberty of the mind,� and defines it as the rational ideal whereby a person can become �fully master of his own thought.�84 He repeatedly emphasizes that the mind is that which �orders and directs,�85 and that every motion begins in �an act of the mind directing its thought to the production of any action.�86 Thus �to the question, What determines the will?, the true and proper answer is, The mind. For that which determines the general power of directing, to this or that particular direction, in nothing but the agent itself exercising the power it has that particular way.�87

Locke next argues that the motive of all action is satisfaction and its dissatisfaction, and �for shortness� sake,� he confusingly calls this motive the �determining of the will.�88 This is acceptable so long as it remains clear that the mind is always free to consider whatever object it chooses, and that broadly (or perhaps tautologically) defined pursuits of satisfaction determine what Locke calls �motive� or desire only, and decidedly do not determine thought or other action.89 Later in the same chapter, Locke makes it clear that the mind 80. 1 ESSAY, supra note 33, at 320. 81. 1 ESSAY, supra note 33, at 323. This point will find powerful support in the twentieth century in the work of the self-professed �neo-Cartesian� Edmund Husserl, upon whom I shall draw in elaborating what I believe are the most defensible aspects of these core Cartesian and Lockean doctrines. See generally EDMUND

HUSSERL, CARTESIAN MEDITATIONS 1 (Dordrecht: Kluwer Academic 1995). Others have noted the connection between Lockean epistemology and aspects of phenomenology. See D.J. RABB, JOHN LOCKE ON

REFLECTION: A PHENOMENOLOGY LOST (1985). Shouls adds a discussion of Rabb�s work. SCHOULS, supra note 62, at 82-83 n.10. 82. See also 1 ESSAY, supra note 33, at 327. 83. 1 ESSAY, supra note 33, at 445 (emphasis added). 84. See SCHOULS, supra note 62, at 106 (quoting Conduct of the Understanding ¶ 45, in 3 WORKS OF

JOHN LOCKE (London 1823)). 85. 1 ESSAY, supra note 33, at 327-28. 86. 1 ESSAY, supra note 33, at 330. 87. 1 ESSAY, supra note 33, at 330 (emphasis added). Husserl emphasizes our power to direct ourselves. HUSSERL, supra note 81, at 33. He then takes the step toward phenomenology by noting further that �[o]nly in reflection do we �direct� ourselves to the perceiving itself and to the perceptual directedness to the house [or other object].� Id. 88. 1 ESSAY, supra note 33, at 331 89. See 1 ESSAY, supra note 33, at 331. This has been the source of confusion about Locke�s position. It has misled some into believing that Locke held that satisfaction or pleasure �determines� the mind. Professor Fraser, the editor of the most widely used version of the Essay which I employ for that reason here, distractingly mounts a neo-Hegelian critique of Locke in his footnotes throughout both volumes. 1 ESSAY,



has the power to suspend desires, to �examine, view, and judge of the good and evil� attending them, and thus to deliberate about both means and ends.90 Here �lies the liberty man has,�91 this is �the liberty of intellectual beings.�92 In short, the power of the deliberative mind to choose its course based on reasons �seems to me the source of all liberty.�93

Locke describes the core self in the language of Descartes. We should study our �clear and distinct� ideas, and our clearest idea of an �active power� comes not from external but from internal observation, from �reflection on the operations of our minds.�94 He argues that the two sorts of action are thinking and motion, and that the only example we have of the crucial �power to begin any action� lies within our minds.95

Despite Locke�s label, of course, these ideas are less clear than one might wish.96 Such ideas leave Locke open to Hume�s skeptical retort that he was unable to discover within him any Lockean self whatever. �For my part, when I enter most intimately into what I call myself, I always stumble on some particular perception or other . . . I never can catch myself at any time without a perception, and never can observe anything but the perception . . . .�97 Indeed, it does seem that when any attempt to attend only to the pure core of the self or ego fails, it is because every conscious thought appears as already directed to

supra note 33, at 331 (commenting). Fraser�s footnote here pounces on this phrase as proving that Locke makes �the so-called �agent� . . . the passive subject of a natural necessity consequent upon �uneasiness,�� and even worse, thus �merge[s] [the agent] in nature.� See id. at 331 n.1 (footnote by Alexander Campbell Fraser, 1st printing 1894). Surely this is not Locke�s meaning. 90. 1 ESSAY, supra note 33, at 345. 91. 1 ESSAY, supra note 33, at 345. 92. 1 ESSAY, supra note 33, at 348. 93. 1 ESSAY, supra note 33, at 345; see DANIEL C. DENNETT, ELBOW ROOM 36 (1984). 94. 1 ESSAY, supra note 33, at 311; cf. HUSSERL, supra note 81, at 33. 95. 1 ESSAY, supra note 33, at 313. The perennial problem of free will is touched upon here. The problem appears to find in the movement of thought a supposedly impossible exception to the �law� of universal physical causation. I believe that this supposed problem has a solution within science, as outlined by Daniel Dennett in particular, as shall be explained below. I also believe, however, that this objection to free will places far more weight on its �law of universal physical causation,� as in Kant, than it can possibly bear. See ALLEN W. WOOD, Kant�s Compatibilism, in SELF AND NATURE IN KANT�S PHILOSOPHY 83-89 (1984) 96. See 2 ESSAY, supra note 33, at 188-89. Locke elsewhere rejects the requirement that ideas must be �distinct� to be certain in response to similar problems. See id. 97. 2 DAVID HUME, A TREATISE OF HUMAN NATURE, Bk. I, Pt. IV, § VI, at 252 (Great Books in Philosophy Series 1992). It is always difficult to know just how seriously some of Hume�s more jarring assertions are to be taken, and support will be provided below that he does not seriously maintain this position. Does Hume really wish us to believe that he experiences his inner life is a rapid-fire slide show with no connection between any flashing image and any other, no past or projected future, and no way to make any continuous sense even of the present instant? However such experiences might be among the mentally ill, Hume is almost certainly the sanest of all the great philosophers. Even the very skeptical Husserl, let alone Kant, decisively refutes this argument, if argument it be, by noting the indubitable continuity of our mental lives, the incorrigible fact that the self who saw the last image is the self who sees the next one. See generally HUSSERL, supra note 81, at 21. �Anything belonging to the world . . . exists for�in that I experience it, perceive it, remember it, think of it somehow, judge about it, value it, desire it, or the like . . . . I thereby acquire myself as the pure ego, with the pure stream of my cogitaiones.� Id.



some object of thought.98 We seem unable to observe the pure subject of thought at all. Can the notion of a self in Locke�s sense be defended against this skeptical challenge? How indeed can we defend a concept that we cannot even describe?

Any response to Hume�s skeptical challenge should of course meet him on his own terms. For Hume, the first step toward explaining mental facts must consist in the meticulous description of those mental facts.99 Even Hume�s tendentiously skeptical account of consciousness, contained in book one of his Treatise of Human Nature, displays its key features: consciousness is experienced as a stream of perceptions, yet it is a stream whose continuity is an integral part of each of its moments.100 Thus, each of the perceptions that make up this stream, whether internal or external, Hume says, is constructed of both a percept or image of the object, and a point of �reference� for that percept.101 Hume�s doubts about the self, while overblown, nevertheless rest on the important recognition that consciousness is essentially directed or intentional, that a thought is always a thought that, because it is continually directed or pointed toward some object beyond and other than itself.102

Yet Hume�s claim that persons �are nothing but� a bundle of perceptions ignores the fact that we continuously play an active part in our conscious experience, attending now to one, and now to another aspect of mental life.103 We focus on this or that memory, perception, or intentional object, and thus bring one and then another into the center of awareness. Surrounding each region of attention or focus so constituted, there is a marginal penumbra and background, an area on the edge of awareness that is always known to be standing ready to be brought into view.104 It is thus incorrect to say that Descartes was only entitled to assert the existence of thought and not of a

98. The directedness or intentionality of thought is associated with Franz Brentano, teacher of Husserl. Husserl found this a breakthrough in his own efforts goal of �describing consciousness concretely,� and credits Brentano with allowing us to �exhibit[ ]. . . the [Cartesian] cogito [always] as consciousness of�that is to say, Franz Brentano�s significant discovery that �intentionality� [as] . . . the fundamental characteristic of psychic phenomena.� HUSSERL, supra note 81, at 41. See generally FRANZ BRENTANO, PSYCHOLOGY FROM AND

EMPIRICAL STANDPOINT (Routledge 1995) (1874). 99. See John Biro, Hume�s New Science of Mind, in THE COMPANION TO CAMBRIDGE HUME 33, 36 (1993). 100. HUME, supra note 97, at 251-55. 101. HUME, supra note 97, at 252. 102. HUME, supra note 97, at 252. Hume goes so far as to declare that persons �are nothing but a bundle of different perceptions, which succeed each other with an inconceivqable rapidity, and are in perpetual flus and movement.� Id. 103. HUME, supra note 97, at 252. 104. See HUSSERL, supra note 81, at 44-45. Husserl states:

[Our] perception has horizons made up of other possibilities of perception, as perceptions that we could have, if we actively directed the course of perception otherwise. . . . Everywhere in this connection an �I can do, but I can also do otherwise than I am doing� plays its part�without detriment to the fact that this �freedom,� like every other is always open to possible hindrances.

Id.



thinker.105 The intentional nature of thought ensures that it contains both thought and thinker, although only the thought is displayed to consciousness. The self, the agent of thought, cannot be examined directly, but can be known only through it�s the activity that is intentionality. The coexistence of agency and thought makes the area of actual and potential awareness our minimal, for modern philosophers such as Husserl, our �field of freedom,� the realm of free mind.106

Consciousness is essentially intentional, because it is constituted by being directed toward a object, each moment of the cogito is an �I think that.� Each cogito, each �I think,� is an act of thought; each focus is an act in the �field� of the mind�s freedom.107 Husserl draws an analogy between conscious attention and what he calls the �ray� of visual attention. At one end of the visual �ray� is the object in view, at the other is the seeing eye.108 The eye cannot �observe� itself. But the eye proves its existence by its acts of vision. Based on the visual analogy, sight is not merely the reception of the image: it is the activity of awareness that relates the eye to the object. Admittedly, in the experience of vision the eye cannot be seen, nor can its operations be examined or explained by the understanding. Neverthelss, in the activity of vision the eye proves its existence, although it leaves the explanations to others.109

As it is with vision and thought, so it is with conscious awareness in general. Such awareness is always a �consciousness of� an awareness directed toward an object. For Husserl, therefore, consciousness as �But this �directing toward�� consists in the union of the object and the act of perceiving it.110 At one pole of consciousness is the object, at the other, their consciousness is purely active agency. The personal ego comes into the Mind�s view because it is affected by external features of personal history and choice. In its pure form, this free activity cannot be concretely described. But this abstractness casts no doubt on its existence. On the contrary, because this free activity is the entire form in which pure consciousness is given, and because it constitutes both its essence and its appearance, there is no possibility that a subsequent (conscious) experience could disprove its existence. Despite its indescribability,111 we 105. See ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 87 (1981). Robert Nozick is apparently friendly to this assertion of Lichtenberg. Id. 106. EDMUND HUSSERL, IDEAS: GENERAL INTRODUCTION TO PURE PHENOMENOLOGY 214 (W.R. Boyce Gibson trans., 1975) (1913). 107. For an excellent treatment of Husserl�s view of the free mind and its �field of freedom,� see Douglas Heinsen, Husserl�s Theory of the Pure Ego, in Husserl, Intentionality and Cognitive Science 147, 167-71 (H.L. Dreyfus 1982). 108. See HUSSERL, supra note 81, at 47, 98, 104. Husserl argues that one object is the �pole� or correlate of consciousness, and the other is the self or �ego pole.� See id. 109. See HUSSERL, supra note 81, at 47, 98, 104. 110. See HUSSERL, supra note 81, at 47, 98, 104. 111. See COLIN MCGINN, THE MYSTERIOUS FLAME (1999). The indescribability of the ego pole of the perceiving mind has been, benignly, one of the source of the �mysterion� views of consciousness, held by some first class current thinkers. See generally id. It has also been the source, malignantly, of much German Idealist



nevertheless know the pure ego as free activity with apodictic certainty. This is because we know the ego completely by knowing its activity, and also because as constitutive of every possible experience, no possible experience could prove us wrong about it.112

While neither Locke nor Descartes was a skeptic about external perception, this sort of skepticism later showed itself very resistant to disproof.113 Locke

speculation, beginning with Fichte, that from the unthinkable nature of pure ego or pure mind (that is, the impossibility of thought without an object), which we now place under the heading of intentionality, the idealist conclusion that activity of ego or mind must create its objects. If our mind is needed to create our petty objects, imagine what ego or mind is required to create the entire universe of objects! Even though Fichteanity and Hegelianism both posit God�s creation of the world by thought, it continues to be notoriously unclear just how the Great Thinker of (German) Thought is from the Absolute Thinker (presumably not necessarily German) Who Thought the World. If the World is the Thought of the World Mind, is to Know that Thought to Participate in the activity of God? Worse yet, does God Himself depend on German Idealists to enable Him to actually Know His Own Creation? Hegel said that in his purposely dense and elusive prose that:

The universal is neither seen nor heard, its existence is only for the mind. Religion leads us to a universal, which embraces all else within itself, to an Absolute by which all else is brought into being: and this Absolute is not of the sense but of the mind and of thought.

G.W.F. HEGEL, ENCYCLOPEDIA LOGIC (�LESSER LOGIC�) 34 (Wallace trans., 1991) (1830). �The objects of philosophy, it is true, are upon the whole the same as those of religion. In both the object is Truth, in that supreme sense in which God and only God is Truth.� Id. at 3. When we examine the history of Spirit, we are observing �a living process by which the implicit unity of divine and human nature becomes explicit, or is brought forth.� III G.W.F. HEGEL, LECTURES ON THE PHILOSOPHY OF RELIGION: THE CONSUMMATE RELIGION 14 (Peter C. Hodgson ed., 1985). When we learn to think the Absolute Truth, the very Thought of God, we Thinkers perform an indispensable role in God�s plan. This is because only by Absolute Truth being known by us can the (panentheist) God, Himself, come to Know it. See generally GLENN ALEXANDER MAGEE, HEGEL

AND THE HERMETIC TRADITION 24-28 (2001). Thus we Thinkers perform the act of knowing Truth for God, Who would otherwise be unable to Know or come to Consciousness of Himself. Id. Indeed the Thinker nearly usurps His Role, because God cannot become God without this self-consciousness for Him which the Thinker provides:

God is God only in so far as he knows himself: his self-knowledge is, further, a self-consciousness in man and man�s knowledge of God, which proceeds to man�s self-knowledge in God.

Id. at 26 (quoting G.W.F. Hegel). If this seems like harmless nonsense, refer to works analyzing German thought during the two world wars of the twentieth century. See generally KLEMENS VON KLEMPERER, GERMANY�S NEW CONSERVATISM (1968) (discussing World War I); FRITZ FISCHER, WAR OF ILLUSIONS (1975) (discussing World War I); JOACHIM FEST, HITLER 201-02, 207, 210-11, 477, 545, 607-08, 611-12 (1973) (discussing World War II). 112. See HEINSEN, supra note 107; HUSSERL, supra note 81, at 8, 23, 28, 90. Husserl, helpfully for my thesis, sometimes also says that we know internal, apodictic facts of consciousness by their �self-evidence.� See HEINSEN, supra note 107, at 156 (quoting HUSSERL, IDEAS I & II 104b (1950)). 113. See generally RICHARD RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979) [hereinafter PHILOSOPHY AND THE MIRROR OF NATURE]; RICHARD RORTY, THE CONSEQUENCES OF PRAGMATISM (1982) [hereinafter THE CONSEQUENCES OF PRAGMATISM]. Richard Rorty has made a career of exploiting these difficulties, seeking to show that we can know nothing outside the our linguistic-conceptual realm, and that we must give up the effort to understand realms beyond this as meaningless. See generally PHILOSOPHY AND THE

MIRROR OF NATURE, supra; THE CONSEQUENCES OF PRAGMATISM, supra. Because Rorty, and more clearly his followers, seems regularly to slide into the conclusion that nothing beyond our possible linguistic-conceptual realm may possibly exist (�meaningfully�), he very often, however, lurches into the what Roy Bhaskar calls the �epistemic fallacy,� that of �the definition of being in terms of knowledge.� ROY BHASKAR, PHILOSOPHY AND

THE IDEA OF FREEDOM viii (1991). Donald Davidson holds that no truth may exist outside of the truths that could be spoken in some sentences of some possible language that we or similar creatures could understand. See THOMAS NAGEL, THE VIEW FROM NOWHERE 94 (1986) (summarizing and criticizing Davidson). Rorty,



and Jefferson might begin to meet that skepticism by suggesting we should prefer an account of uncertain things that is most closely consistent with the account we have of certain things. The most corrosive form of perceptual skepticism was posed as a hypothetical by Descartes, and most forms of determinism and idealism rest on this or similar formulations. How can we be sure that the appearance of ourselves as agents moving at will in an external world is not an illusion created for us by an malign and all-powerful demon? (More recently, the demon�s place is taken by an evil scientist who has placed our brains in a vat, a figure who has of course not helped heal the rift between the sciences and the humanities.114) Even if we do not think this possibility very likely, it seems difficult or even impossible to disprove.115 But beginning, as do Locke and Descartes, with what we know with certainty, we can perhaps give a satisfactory philosophical explanation of what we cannot know with that same certainty.116 We cannot prove that our actions at will in an external world are not the product of an extraordinary illusion created by means we cannot

for his part, has explained his school of thought as follows:

We cannot find a skyhook which lifts use out of mere coherence�mere agreement�to something like �correspondence with reality as it is in itself.� . . . Pragmatists would like to replace the desire for objectivity�the desire to be in touch with a reality which is more than some community with which we identify ourselves�with the desire for solidarity with that community.

RICHARD RORTY, Science as Solidarity, in OBJECTIVITY, RELATIVISM, AND TRUTH 38-39 (1991). Thus �[w]hat people like Kuhn, Derrida, and I believe is that is pointless to ask whether there really are mountains or whether it is merely convenient for us to talk about mountains.� Richard Rorty, Does Academic Freedom Have Philosophical Presuppositions?, ACADEME 56-57 (Nov.-Dec. 1994). Yet surely there are more things in heaven and earth than are dreamt (or dreamable!) in this philosophy. Locke himself provides a complete refutation of these claims, as follows:

[T]hough we cannot believe it impossible to God to make a creature with other organs and more ways to convey into the understanding the notice of corporeal things than those five, as they are usually counted, which he has given to man�yet I think it is not possible for any man to imagine any other qualities in bodies . . . besides sounds, tastes, smells, visible and tangible qualities . . . whether yet some other creatures, in some other parts of this vast and stupendous universe, may not have [other faculties], will be a great presumption to deny. He that will not set himself proudly at the top of all things, but consider the immensity of the fabric, and the great variety that is to be found in this little and inconsiderable part of it which has to do with, may be apt to thing that, in other mansions of it, there may be other and different intelligent beings, whose faculties he has as little knowledge or apprehension as a worm shut up in one drawer of cabinet hath of the senses or understanding of a man . . . .

1 ESSAY, supra note 33, at 146. Locke�s discussion here precisely anticipates Thomas Nagel�s critique of Donald Davidson, by some three hundred years, although neither of them seems to have noticed this. NAGEL, supra, at 95-96 (critiquing Davidson); see ROY BHASKAR, PHILOSOPHY AND THE IDEA OF FREEDOM vii-6 (1991); STANLEY ROSEN, Rorty and Systematic Philosophy, in THE ANCIENTS AND THE MODERNS: RETHINKING MODERNITY 177-80 (1989). Rorty�s conclusion, the infamous unbeatable torturer, is challenged below. See MICHAEL DEVITT, REALISM AND TRUTH 3 (1991). 114. See DANIEL C. DENNETT, CONSCIOUSNESS EXPLAINED ch. 1 [�The Brain in the Vat�] (1991). 115. See generally DANIEL C. DENNETT, ELBOW ROOM (1984) 116. See DENNETT, supra note 115, at 49 (citing ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS (1981)). Philosophical explanations, rather than strict proof, is all that may be presently available regarding such hardy perennial problems. Id.



now imagine.117 We know that our thought is subject to our conscious control, that is, we know that our experience in this regard is indubitable or �apodictic.� We believe, based upon apparently similar experiences, that our physical actions in the world are also subject to our conscious control. We are aware that this could conceivably be false, and that the experience of agency could be produced by something other that an external world (notably, always by some super-agent purposefully misinforming us). But if we possess a philosophical explanation that better accords with both the known and the apparent facts than the hypothetical explanation, we would have convincing reasons to presume its truth, unless the contrary were to be convincingly shown.

One form of such an explanation is a developmental one. This explanation would seek to show how conscious, thinking agents, deliberately acting for reasons, could have naturally arisen in a material and cause-bound world.118 At the inception of life �there were no reasons, only causes.�119 The moment life begins, however, interests and reasons are born as well. But the mere description of �consciousness� or awareness does not itself fully account for our freedom, as Locke himself realizes. Indeed, Locke not only anticipates but, perhaps, surpasses Husserl in significant respects when he describes the self as an �active power� and emphasizes that it is the source of activity.120 This emphasizes the purposeful character of conscious thought: not activity merely but the purposive and directed activity of the agent is constituted by his activity.

Locke�s work certainly contains explicit statements of his commitment to the freedom of mind. Characteristically, his arguments are addressed to �he who will give himself leave to freely consider� them.121 Locke explicitly condemns intellectual despotism in terms that would echo throughout Enlightened Europe and America in the next century.122 Locke laments that the poor have little time or energy for study, but points out that even those with leisure who might be �discovering truth� are prevented by their tyrannous kings and churchmen:

[T]hey are cooped in close, by the laws of their countries, and the strict guards of those whose interest it is to keep them ignorant, lest, knowing more they should believe the less in them. These are as far, nay farther, from the liberty

117. See DENNETT, supra note 115. Dennett points out that no known or posited artificial process could possibly produce the completely convincing illusion of a self-in-the-world that the evil scientist problem requires. See id. at 1-18. 118. The following explanation draws liberally on the work of Daniel C. Dennett, Antonio Damasio, and Martha Nussbaum. See generally DANIEL C. DENNETT, FREEDOM EVOLVES (2003); DENNETT, supra note 114; DENNETT, supra note 115; ANASTASIO DAMASIO, THE FEELING OF WHAT HAPPENS (1999); MARTHA

NUSSBAUM, UPHEAVALS OF THOUGHT (2001). 119. DENNETT, supra note 115. 120. See HUSSERL, supra note 81, at 82-83. 121. 1 ESSAY, supra note 33, at 349, 348. 122. See 1 ESSAY, supra note 33, at 445



and opportunities of a fair inquiry, than these poor and wretched laborers we before spoke of: and however they may seem high and great, are confined to narrowness of thought, and enslaved in that which should be the freest part of man, their understandings. This is generally the case of all people who live in places where care is taken to propagate truth without knowledge; where men are forced, at a venture, to be of the religion of the country; and must therefore swallow down opinions as silly people do an empiric�s pills, without knowing what they are made of, or how they will work, and having nothing to do but believe that they will do the cure. . . .123

Locke is the very opposite of the traditional philosophical dogmatist, the creator of a system that must be �swallowed down� whole as revealed truth.124 He instead proceeds as do the sciences today, by displaying his method, arguing for conclusions based on that method, and then most importantly urging and even insisting that his reader employ those methods to critically test the conclusions for himself. Locke is, therefore, the philosopher of the freedom of mind, not because he proves this as a dogma, but because he displays that freedom in action. He not only employs his free mind in discovery, but at each stage exposes his discoveries themselves to its rigors. Locke firmly instructs us never to accept anything on faith, even his own most precious findings. Instead, he displays the tentative results of his method, while urging that the same method be employed against those very results. He speaks to his reader not as instructor to student, let alone in the Hegelian voice of God but as one free mind to another.

For present purposes, the most important Lockean certainty is what Locke tellingly confessed in a letter to Stillingfleet, that although God�s omnipotence and omniscience is �unquestionable,� he nevertheless finds he �cannot have a clearer perception of any thing than that I am free.�125 We believe, very reasonably, in God; but we know with certainty that we are free. Locke argues that we should build our knowledge on the firmest foundations possible. These foundations he finds in the workings of his own mind, and he asks his readers for nothing more than an honest examination of their own.

The term person, Locke says, �is a forensic [i.e., legal] term, appropriating actions and their merit; and so belongs only to intelligent agents, capable of a law and happiness, and misery.�126 Locke explains:

This personality extends itself beyond present existence to what is past, only by consciousness�whereby it becomes concerned and accountable; owns and imputes to itself past actions, just upon the same ground and for the same reason as its does the present. All of which is founded in a concern for

123. 1 ESSAY, supra note 33, at 445 (emphasis added). 124. The example I have in mind, I suppose, is Hegel. See WERNER HAMACHER, PLEROMA: READINGS IN

HEGEL 7 (1998) (arguing Hegel demands not critical acceptance but conversion). 125. SCHOULS, supra note 62, at 154. 126. 1 ESSAY, supra note 33, at 467.



happiness, the unavoidable concomitant of concomitant of consciousness; that which is conscious of pleasure and pain, desiring, that self that is conscious should be happy.127

We impute to ourselves our current actions, �just upon the same ground and for the same reason� as those of our past.128 What, then, is that �ground�?129 It is, Locke explains, that of our deliberate choice.

From the same considerations, the power of the mind over actions is called liberty. In so far as a man has power to think and move according to the preference of is mind, he is free. Whenever the choice of action or rest, in consideration of any idea, are �not equally in a man�s power, . . . there he is not free,� or at liberty.130 Where the alternative is not equally in his power, he is under necessity.

It might be pointed out that Locke�s definition of liberty, here, starts out as extraordinarily strict. Liberty exists only where the agent is equally free to engage or decline any action whatever. Everything less than this wholly unrestrained, even wholly uninfluenced liberty, is constraint. A liberty, this pure and complete, at least outside the realm of thought, seems hardly attainable by incarnated creatures such as ourselves, subject as we are to all the laws of nature and of fate.

Locke struggled with this section of the Essay over many editions, and was never entirely satisfied with it. One problem was his desire to reconcile his absolute certainty of human freedom with his equal certainty of the omnipotence in God. In a famous letter to Molyneaux, Locke explained: �though it be unquestionable that there is omnipotence and omniscience in God our Maker, yet I cannot make freedom in man [of which he is certain] consistent with omnipotence or omniscience in God.�131

Perhaps worried that he was attributing the perfect liberty of gods to man, Locke immediately begins to tack the other way. Liberty belongs not to pure volition itself but �to the person having the power� of action.132 Also, as persons, we are regularly constrained by the impositions of nature. A conscious person, Locke says, is �not at liberty to think or not think� at all, but must remain aware.133 A man on a rack is not at liberty to ignore his pain. Temporary and �boisterous passion[s]� may propel the mind, as a powerful wind may propel the body, and impede our normal freedom of choice.134 Yet the freedom of our minds is our ordinary state, and these sorts of natural

127. 1 ESSAY, supra note 33, at 467 (emphasis added). 128. Williams, supra note 37, at 55-56; see 1 Essay, supra note 33, at 467. 129. Williams, supra note 37, at 55-56. 130. 1 ESSAY, supra note 33, at 315. 131. 1 ESSAY, supra note 33, at 316 n.2. 132. 1 ESSAY, supra note 33, at 317. 133. 1 ESSAY, supra note 33, at 317-19. 134. 1 ESSAY, supra note 33, at 319.



constraints are the exceptions. For �as soon as the mind regains the power to stop or continue begin or forbear, . . . we then consider the man a free agent again.�135

This core principle is made explicit in the Second Treatise, that all persons �are naturally in a State of perfect Freedom to order their actions, and dispose of their Possessions, and Persons as they see fit.�136 We are nevertheless subject to both the internal and external constraints of nature. As incarnated spirits, we are constrained by the general laws of gravity, for example, and are not free to fly, as Locke repeatedly reminds us. We are also, however, subject to the internal constraints of our specific nature.137 As creatures possessed of reason, we have laws or principles of our nature, �[a]nd Reason . . . is that Law.�138

Locke�s Essay Concerning Human Understanding might be thought of as an attempt to describe these �laws� of reason or thought.139 Locke was concerned to show that, although the area of certainty for human knowledge is small, the amount of knowledge we can attain is sufficient to inform of our moral duties, and thus to lead pious and happy lives.140 The Essay constitutes Locke�s efforts to describe what certain knowledge we are capable of, while holding fast to the possibility that our knowledge of morality may be the subject of an entirely certain �science.�141 These not always compatible goals account for much of the tension and even inconsistency in the Essay.

Reason also teaches that the state of persons by external and internal nature is one of the most perfect freedoms, and is �[a] State also of Equality�:

wherein all the [human] Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal, one amongst another . . . .142

But the limits Locke recognizes are also important to his conception of human freedom. He argues that our freedom may be temporarily impaired or destroyed by both external and internal forces. Not only the grosser impositions of external power, but the tempests of internal passion, may make

135. 1 ESSAY, supra note 33, at 316. 136. JOHN LOCKE, TWO TREATISES OF GOVERNMENT II, ch. 2, § 4 (Laslett ed., 1988) [hereinafter TWO

TREATISES]. 137. Jefferson�s first public paper argued from the �rights of human nature,� and the phrase and other arguments were picked up and supported in England by Richard Price. See JEFFERSON, SUMMARY VIEW OF

THE RIGHTS OF BROITISH AMERICA ETC.; 1 BOYD, supra note 22, at 121, 134; CLAUDE C. BOWERS, THE YOUNG

JEFFERSONS 134-36 (commenting that Price�s arguments suggest the influence of Jeffersons� Summary View). 138. BOWERS, supra note 137, at 135. 139. See BOWERS, supra note 137, at 135. See generally ESSAY, supra note 33. 140. 2 ESSAY, supra note 33, at 208. 141. 2 ESSAY, supra note 33, at 208 142. TWO TREATISES, supra note 136, at ch. 2., § 4.



genuine choice impossible. A critic might contest this. Surely even persons swept away by violent passion nevertheless retain the bare power to direct themselves. What they lose, however briefly, is not the bare power to choose their acts, but the higher faculty of deliberate choice. Persons in these throws do make choices, but they choose what their deliberate minds would reject; they choose indeed against their own deliberated preferences, and may be fully aware of this as they do so. Locke must mean that a genuinely free act is a deliberate act, one chosen by our ordinary deliberative process and not produced by a storm of passion making even minimal deliberation impossible. Persons under ordinary human circumstances are thus free agents because they have the power to direct their conduct by the deliberate choice of their minds.

Deliberate choice, then, is the �ground� of our individual ownership of our acts. Under ordinary human conditions, persons are free agents in Locke�s sense. They have the capacity to choose action or forbearance, consideration of one idea or another, as their minds direct. These agents operate within the ordinary constraints of their nature. They are free to direct their thought, but not free to have none. They are free to contemplate any idea, but perception nevertheless transits perception independent of will, and at the extremes necessary perceptions may overwhelm conscious thought.143 But free agents, normally, direct their thoughts and their deliberate actions. By that deliberate choice, they make their actions their own.

The nearly universal success of these democratic attitudes is in some sense a measure, albeit an elusive one, of Locke�s greatness and his profound impact on our world. It can only with effort be recalled that these principles were by no means the assumptions of Locke�s own seventeenth century, with its terrible fear of loosening the grip of religion over the common mind. And we must also recall that the denial of the mind�s autonomy remains the first postulate of all dogmatists of every stripe today. The dazzling theoretical structure of the scholastics, and those of the post-Kantian idealists and their descendants, permanently tempt us to give ourselves over to the direction of superior minds�to escape that fear of freedom which is itself the dark night of modernity. We will always be tempted to attempt the leap out of the human predicament, to deny that predicament itself as the product of error and illusion.

With this principle in hand, we are perhaps now in a position to answer the question we drew from Locke. He asserted that we impute responsibility for own our past acts to ourselves �upon the same ground� as we impute our present ones.144 We do so because our voluntary acts, past, present, and future, assert the liberty to act on our judgments of value. We are now entitled to recognize the logical consequences of that principle. Every actor must

143. See Plutarch, supra note 34, at 35. The point that our perception does not depend on our will was an argument that Jefferson took from Locke, and appears also in Plutarch. Id. 144. Williams, supra note 37, at 55-56; see 1 Essay, supra note 33, at 467.



recognize that the claims of others that rest �upon the same ground� as the claims he makes for himself.145 Every agent owns his own acts upon the ground of his deliberate choice, and every chosen act claims the liberty necessary for its own completion. Every agent is therefore logically compelled to recognize the identical claims of other agents that proceed upon precisely that same ground.146

All of this follows logically once the inherent features of deliberate action are recognized. These features are all stated or implied by Locke in his treatment of agency and identity in Essay, and in the original right of natural freedom in Two Treatises.147 These implications from deliberate action might solve the two most serious problems of any naturalistic ethics, the unexamined slip from the �is� to the �ought,� famously complained of by Hume,148 and the tautologous or circular definition of a moral quality in terms of a natural one, less famously rejected by Price.149 Although the first moral principle is indeed derived from the apodictic experience of deliberation, and the case for deliberate action, these concepts themselves rest on no moral principle whatsoever. The agent�s duty to respect the claims of others, further, is derived entirely from the essential and certain qualities of his own (as every) voluntary

145. See THOMAS L. PANGLE, THE SPIRIT OF MODERN REPUBLICANISM 77 (1988) (internal citations omitted). See generally ALAN GEWIRTH, REASON AND MORALITY (1978). Jefferson wrote of �the sound spirit of legislation, which, banishing all arbitrary and unnecessary restraint on individual action, shall leave us free to do whatever does not violate the equal rights of another.� See PANGLE, supra. See generally GEWIRTH, supra. 146. See Richard Price, Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America (Feb.-Mar. 1776), reprinted in PRICE AND THE ETHICAL

FOUNDATIONS, supra note 29, at 67-75, 141. Price grounds his argument for liberty of conscience, against Hobbes, in the logical (as well as practical) demands of consistency. Id.

All have the same unalienable right to this [religious] liberty and, consequently, no one has a right to such a use of it as shall take it from others. Within this limit, or as far as he does not encroach on the equal liberty of others, every one has a right to do as he pleases in religion. . . . [A]nd that [this liberty] cannot go farther is self-evident; for if it did, there would be a contradiction in the natures of things, and it would be true that everyone had a right to enjoy what everyone had a right to destroy.

Richard Price, Additional Observations on the Nature and Value of Civil Liberty and the War With America (1777), reprinted in PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 141; see also id. at 189 (1784). Those who urge Hobbes as the propounder of the first theory of natural rights must account for with his self-contradictory description of them, which Price here justly attacks. PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 67-70, 141. Hobbes famously argued that everyone naturally has a �right� to everything, including the property and even the body of others. See generally THOMAS HOBBES, LEVIATHAN (Norton Critical ed., 1997). Whatever else might be said of this doctrine, the ordinary notion of rights as claims asserting some moral or practical justification plays no does not enter it. 147. See generally ESSAY, supra note 33; TWO TREATISES, supra note 136. 148. 2 DAVID HUME, A TREATISE OF HUMAN NATURE § 3.1.1, at 302 (David F. Norton & Mary J. Norton eds., Oxford Univ. Press 2000). Professor Gewirth argues that, insofar as Hume�s objection is to the derivation of a moral principle from mere factual assertions, the derivation here from the very broad canons or rationality avoids the objection. See GEWIRTH, supra note 145, at 148. Further, it might be said that if the objection purports to prove that no moral principle can be logically derived from non-moral premise, thus all moral argument is condemned by definition to vicious circularity, Professor Gewirth�s analysis defeats it. Id. 149. REVIEW OF PRINCIPLE QUESTIONS OF MORALS 14-26 (1787).



act, and that duty is self-imposed by the logic that necessarily grounds his act. Hume objected that the step (or slip) from �is� to �ought� was usually made without any argument, and he demanded �a reason� for this derivation.150 The explicit, logical derivation of the moral �ought� from the facts inherent in deliberate action meets that objection.151

Price�s objection is also met.152 The first principle of morality is not a mere redefinition of the moral in terms of the natural.153 The crucial point is that what Locke called the �right to natural freedom� is directly grounded in the apodictically certain features of thought, coupled with the analysis of action stated above.154

Having suggested that the chief objections to Lockean natural law and natural liberty may plausibly be answered, we are prepared to place Jefferson�s thought in its context. Locke of course dominated the thought of the following century as few philosophers ever have. Nearly all thinkers accepted the fundamentals of Lockean epistemology as established doctrine, and sought to build upon rather than refute it. The thought of the period of Jefferson�s very rigorous education (that of the early to middle eighteenth century) was essentially Lockean. Thinkers sought to produce further scientific conclusions from their shared Lockean premises.

These premises included Locke�s definition of �persons� in terms of beings who are by nature capable of both law and a concern for their happiness.155 Competing eighteenth century thinkers sought to prove scientifically that some principles or systems were better designed to maximize human happiness than others. The three philosophers who seem to have had the most obvious influence on Jefferson�s Virginia Statute were (after Locke himself) Francis

150. See HUME, supra note 148, at 301. Hume also suggested that such a deduction was �altogether inconceivable.� Id. The version of Professor Gewirth�s argument presented here seeks to show that Hume was wrong. See GEWIRTH, supra note 145, at 148. 151. See GEWIRTH, supra note 145, at 148. 152. PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 16. 153. PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 16. This is sometimes thought to be the main point of G.E. Moore�s famous �naturalistic fallacy,� and was re-named the �definist fallacy� by Frankena for this reason. See W.K. Frankena, The Naturalistic Falacy, in STUDIES IN THE PHILOSOPHY OF G.E. MOORE 30, 32-37 (E.D. Klempke ed., 1969). The fallacy is said to consist in the attempt to define a non-natural and indefinable quality (here Moore�s intuitionist notion of �good�), as the complete equivalent of some natural quality (e.g., pleasure is the only good). Id. Frankena pointed out that, although the effort to define the indefinable is misbegotten to the extent the characterization is accepted, this �definist� fallacy has little to do with morality or moral reasoning. Id. In any case, Moore offers no argument (beyond displaying his reasonable, but hardly inevitable, intuitions on the subject) that persuades the critic to agree with his major premise that �goodness� is in principle undefinable, a single non-natural quality rather than a term with multiple and fairly vague meanings in ordinary use. See generally id. 154. TWO TREATISES, supra note 136, at 142. 155. �All of which [characteristics of persons] is founded in a concern for happiness, the unavoidable concomitant of consciousness; that which is conscious of pleasure and pain, desiring, that self that is conscious should be happy.� 1 ESSAY, supra note 33, at 467.



Hutcheson, Joseph Priestly, and Richard Price.156 All of them were dissenting churchmen, and all of them were firm advocates for the sanctity of the individual�s �freedom of conscience.�157

That phrase, however, carried many more philosophical implications for them than just the freedom to choose one�s church. The conscience was for these intellectuals essentially equivalent to what we would call the �moral personality,� the entire faculty of moral perception, deliberation, and direction.158 Thus the demand for absolute freedom of conscience was much more than a claim to attend the church of one�s choice, or even for the disestablishment of the Church of England. It was a far more radical claim, both philosophically and politically. Absolute freedom of conscience was a demand for the freedom of the moral personality; freedom of the deliberative person as such. It was a claim that only the moral sense, that is, the conscience, may direct the moral man. We have of course a natural right, and a natural duty, to educate and perfect our conscience so that it may provide us with ever sounder direction. But to exercise this right and fulfill these duties we must have complete intellectual freedom: the freedom to read and enquire; to speak and to hear; and to pursue moral and scientific knowledge wherever they lead.159 Indeed, as moral persons we have the duty to demand this of our government, and those whom nature has favored with high intellect and sensitivity to virtue bear an even heavier duty than others. Nothing less than complete intellectual liberty will ensure that each individual is able to fulfill the moral duties imposed on him to the fullest extent to which he is capable.

156. Jefferson and Price cooperated eagerly in the American cause probably from the time Price read Jefferson�s Summary View. See CLAUDE C. BOWERS, THE YOUNG JEFFERSON 135 (1945); see also Bernard Peach, Introduction, in PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 39 (Price�s influence on Jefferson). Price was a devoted advocate of the Virginia Statute for Religious Liberty and celebrated its as �a happy omen of the benefit to mankind that may arise from the American Revolution.� Price, Letter to Benjamin Ruch, July 30, 1786, reprinted in PRICE AND THE ETHICAL FOUNDATIONS, supra note 29, at 338. Joseph Priestly, the discoverer of oxygen and arguably among the early founders of modern physics, was also an advocate of freedom of speech and thought and a correspondent of Jefferson�s. See JOSEPH PRIESTLY: POLITICAL WRITINGS, Editor�s Introduction xx-xxvii (1993); WRITINGS, supra note 8, at 798 (Letter of Jefferson to Price, Feb. 1, 1785); WRITINGS, supra note 8, at 1069, 1072, 1141 (Letters of Jefferson to Priestly, Mar. 21, & 23, 1801, and Jan. 29, 1804). 157. See supra note 156 and accompanying text. 158. See generally FRANCIS HUTCHESON, SHORT INTRODUCTION TO MORAL PHILOSOPHY (1745). Francis Hutcheson�s much maligned �moral sense� is much more readily understood when one reads this faculty as synonymous with �conscience,� as Hutcheson does in his later work. See generally id. Jefferson is known to have read this work. See WILLIAM STERNE RANDALL, THOMAS JEFFERSON: A LIFE 56 (1993). 159. I have argued that the First Amendment principle fundamentally prohibits government attempts to control thought, as by censorship aimed at regulating what citizens may think about. See generally Harlan M. Goulett, Political Versus Civil Rights? Equality and Liberty Under the First ad Fourteenth Amendments, 1 TEMP. POL. & CIV. RTS. L. REV. 45 (1992); Harlan M. Goulett, Comment, �It Takes More Than Money to Fly Delta. It Takes Nerve�: Union Secondary Boycott Publicity and the First Amendment, 67 MINN. L. REV. 1235, 1269 n.213 (1983).



THE UNALIENABLE RIGHTS TO FREE THOUGHT, SPEECH, AND CONSCIENCE: ELISHA WILLIAMS AND FREEDOM TO PREACH

In response to the outburst of itinerant preaching, later referred to as the Great Awakening, many states, including Connecticut and Virginia, sought to protect established ministers and religious orthodoxy by forbidding or regulating preaching. These controversies and their aftermath produced the first sustained analysis of the rights of freedom of thought, speech, and conscience up and down the colonies. These struggles in Virginia began the debate over disestablishment and the freedom to preach, vividly described by William Lee Miller in The First Liberty.160 In Connecticut, the same controversy produced a similar response, as well as the greatest pre-revolutionary pamphlet on the subject, Elisha Williams� The Essential Rights of Protestants, published in 1744.161 Whether or not the Virginians heard of this specific work, this pamphlet presents a considered and early statement of the emerging American theory that the colonies had already begun to produce, regarding of the natural intellectual rights of persons.

Williams begins with the reformation proposition that the scriptures are alone the rule of faith, and that all Protestants should believe that every Christian has �a right of judging for himself what he is to believe and practice in religion according to that rule.�162 He argues that history shows that it is inconsistent to grant the civil magistrate any power to make laws in matters of religion, but Williams admits that Protestant practice has too often departed from this rule.163 He then launches into a brilliant defense of intellectual freedom drawn from original principles.

Williams first makes the Lockean point that �[r]eason teaches that all men are naturally equal in respect of jurisdiction or dominion over one another.�164 We �are born free as we are born rational,� and God has given each �an understanding to direct his actions.�165 Against Hobbes, Williams maintains that from the �natural right to . . . his own person and his own actions . . . it certainly follows: that no man can have a right to the person or property of another.�166 Given the difficulties of individually enforcing the law of nature, reason and �the celebrated Lock[e]� teach men to �unite into a commonwealth under some form or other, to make a body of laws agre[e]able to the law of

160. See WILLIAM LEE MILLER, THE FIRST LIBERTY § 1 (1985). 161. See generally Williams, supra note 37. 162. See generally Williams, supra note 37, at 55. It was common to cite the reformation principle of private judgment as ground for more advanced doctrines of religious liberty, even if the reformers themselves did not practice such belief. See id. 163. See Williams, supra note 37, at 55-56 164. Williams, supra note 37, at 56. 165. Williams, supra note 37, at 56. 166. Williams, supra note 37, at 57.



nature, and institute one common power to see them observed.�167 By this process, however, �so much liberty and no more is departed from, as is necessary to secure [the] ends . . . for which men enter into a state of government.�168

At this point, Williams �cannot forbear� from emphasizing �one point of liberty which all members of a free state and particularly Englishmen think belonging to them, and are fond of: and that is the right that every one has to speak his sentiments openly concerning such matters as affect the good of the whole.�169 This follows from the fact that the members of a civil state or society retain their natural liberty in all such cases that have no relation to the ends of such a society. Thus, �[i]n a state of nature men have the right to read Milton or Lock[e] for their instruction or amusement,� and �why they do not retain this liberty under a government that is instituted for the preservation of their persona and properties, is inconceivable.�170 Members of society also �retain their natural liberty or right of judging for themselves in matters of religion.�171 On this subject Willliams makes the strongest claim he can, in one of the first, if not the first, statements of the inalienable right to intellectual freedom anywhere.172

�This I say, I take to be an original right of the humane nature, and so far from being given up by individuals of a community that it cannot be given up by them if they would be so weak as to offer it.�173 This follows immediately from our nature as rational and moral beings. �Man by his constitution as he is a reasonable being capable of the knowledge of his Makes; is a moral and accountable being; and therefore as every one is accountable for himself, he must reason, judge and determine for himself.�174 Anticipating Kant, Williams

167. Williams, supra note 37, at 58. 168. Williams, supra note 37, at 58. Williams� language here, using �commonwealth� in reference to the government and �state� essentially to mean a natural governmental condition, supports a suggestion by Pocock. See J.G.A. Pocock, States, Republics, and Empires: The American Founding in Early Modern Perspective, in CONCEPTUAL CHANGE AND THE CONSTITUTION 55, 57-60 (Terrence Ball & J.G.A. Pocock eds., 1988). Pocock has pointed out that in the seventeenth and eighteenth centuries �commonwealth,� and even �republic,� were the general terms for any �form or other� of government, and suggests that �state� was brought into broad usage largely by the Declaration. See id. 169. Williams, supra note 37, at 60 (emphasis in original). Williams� note about the people�s �fond[ness]� for their right of free speech supports the view of Michael Kent Curtis that the public generally supported a broad right of free political expression, even if its political elites (or their courts) were more hesitant to do so. See generally MICHAEL KENT CURTIS, FREE SPEECH, �THE PEOPLE�S DARLING PRIVILEGE� (2002). It also constitutes an early but very clear statement of the principle that the people who have founded the government have the inherent right to criticize it, made thirty years before the founding, and consisting of the specific argument Levy searched for and claimed he could not find anywhere before 1798. See generally LEONARD W. LEVY, EMERGENCE OF FREE PRESS (1985). 170. Williams, supra note 37, at 60-61 (emphasis in original). 171. Williams, supra note 37, at 60-62. 172. Williams, supra note 37, at 60-62. 173. Williams, supra note 37, at 61-62. 174. Williams, supra note 37, at 61-62.



notes that all Protestants must agree: No action is a religious action without understanding and choice in the agent. Whence it followed the rights of conscience are sacred and equal in all, and strictly speaking unalienable. This right of judging every one for himself in matters of religion results from the nature of man, and is so insep[a]rably connected therewith that a man can no more part with it than he can with his power of thinking: and it is equally reasonable for him to attempt to strop himself of the power of reasoning, as to attempt the vesting of another with this right. And whoever invades this right of another, be he pope or Caesar, may with equal reason assume the other�s power of thinking, and so level him with the brutal creation. A man may alienate some branches of his property and give up his right in the to others; but he cannot transfer the rights of conscience, unless he could destroy his rational and moral powers, or substitute some other to be judged for him at the tribunal of GOD.175

Here, in an obscure pamphlet published in 1744, lay the core philosophy of the inalienable rights of mind; the philosophy of rights that would become most closely associated with the life and thought of Jefferson. It is this philosophy that I called the Jeffersonian theory. That theory is essentially correct. It stands up very well against even the most modern moral skepticism, and the most advanced metaphysical idealism. Whether or not I succeed in showing this, however, I do not believe I can be rightly accused of completely anachronistic misreading the eighteenth century�s advocates for the freedom of mind. Here, very explicitly stated, is a version of precisely the position I attribute to Jefferson, and that I believe remains very defensible today.

JEFFERSON AND INALIENABLE RIGHTS

Thomas Jefferson, with his protégé Madison, is the eighteenth century politician and philosopher who did more than any other to ensure that these principles of natural rights would be reflected in the law.176 The founding generation shared the natural rights view that moral principles are natural, objective, and pre-political. They believed that law, and even popular government itself, must be justified by appeal to these values.177 It was Jefferson, however, who most powerfully stated these principles in law.

More importantly, he placed intellectual freedom of thought and expression at the very core of his theory of natural rights. Utilitarian British thinkers were the leading theorists of free thought and speech in Jefferson�s day. Jefferson�s

175. Williams, supra note 37, at 61-62 (emphases in original). 176. See Joyce Appleby, Jefferson and His Complex Legacy, in JEFFERSONIAN LEGACIES 1 (Peter S. Onuf ed., 1993). Of course, even this is disputed among anti-Jeffersonians. See Stephen A. Conrad, Putting Rights Talk in its Place, in JEFFERSONIAN LEGACIES, supra, at 254. 177. See ALEXANDER HAMILTON, JAMES MADISON, & JOHN JAY, THE FEDERALIST 451-63 (B. Wright ed., [McLean text 1788] 1996) (reinforcing central argument); see also SOTIRIOS BARBER, THE CONSTITUTION OF

JUDICIAL POWER 28-36 (1993).



personal friends Price and Priestly defended free speech in largely consequentialist terms,178 while Locke famously denied even �toleration� to Catholics.179 James Madison defended the natural right to free worship, but derived it squarely from our non-delegable duty to God.180 Only Francis Hutcheson placed his plea for religious toleration on the broad footing of natural and inalienable right, but he did little beyond stating that thesis.181

It was Americans such as Elisha Williams who grounded intellectual freedom solidly in the moral nature of man. Thomas Jefferson was far and away the most important and influential proponent of this view among the founders. Jefferson�s Bill for the Establishment of Religious Freedom was apparently the first legal effort to secure universal intellectual and expressive freedom for all opinion, religious and otherwise.182 For this reason, Jefferson proudly circulated copies of the final text among his European and English friends. He also asked that it be placed among his three most important contributions to the new nation as his epitaph.183 Although Jefferson seems to have initially drafted his Bill for Establishing Religious Freedom in 1776 or 1777,184 it was not passed, as amended, until 1786, while he was in Paris. He later wrote that he had �drawn [the Bill] in all the latitude of reason & right,� and that �it�s protection of [religious] opinion was meant to be universal.�185

Jefferson�s draft bill began with an argument from Locke. Jefferson suggested that we cannot compel our own opinions because they naturally follow from evidence proposed to us. This Lockean point was deleted from the Statute as passed. The Statute fittingly beings with the first moral principle of the Jeffersonian theory of rights: that �[a]lmighty God hath created the mind free,� God has �manifested his supreme will that free it shall remain by making 178. Excellent editions of both Price and Priestly have recently become available. See generally Richard Price, Two Tracts on Civil Liberty and the War with America, reprinted in PRICE AND THE ETHICAL

FOUNDATIONS, supra note 29; JOSEPH PRIESTLY, POLITICAL WRITINGS (Peter Miller ed., 1993). 179. John Locke, A Letter Concerning Toleration (1689), http://www.constitution.org/jl/tolerati.htm. 180. James Madison, The Memorial and Remonstrance Against Religious Assessments (1785), reprinted in MARVIN MEYERS, THE MIND OF THE FOUNDER 5-13 (1981). Madison�s duty-based and consequentialist arguments are stated in a tract he wrote in opposition to religious taxes and in support of Jefferson�s Bill. 181. 2 ESSAY, supra note 33, at 268-70; FRANCIS HUTCHESON, AN INQUIRY INTO THE NATURE OF OUR

IDEAS OF BEAUTY AND VIRTUE 283-84 (Gregg ed., 1969) (1735). The first modern natural lawyer, Grotius, also emphasized that �inalienable things are things which belong so essentially to one man that they could not belong to another, as a man�s life, freedom, honour.� SIMMONS, EDGE OF ANARCHY, supra note 7, at 135 n.78 (quoting HUGO GROTIUS, INLEIDINGHE TOT DE HOLLANDSCHE RECHTS-GHELEERTHEYDT 42 (1926)). 182. This writer believes that Jefferson intended to protect all opinion, not just religious opinion, and to disclaim all �laws for the human mind� in the Statute. Thomas Jefferson, Autobiography, reprinted in PETERSON, WRITINGS 40 (1984) [hereinafter AUTOBIOGRAPHY] (showing Jefferson�s discussion of struggle for the Statute). 183. WRITINGS, supra note 8; AUTOBIOGRAPHY, supra note 182. 184. See 1 BOYD, supra note 22. Jefferson also included religious liberty in the first draft of his constitution penned the previous year in Philadelphia, written at the same time as the Declaration of Independence. See Thomas E. Buckley, The Political Theology of Thomas Jefferson, in VIRGINIA STATUTE

FOR RELIGIOUS FREEDOM, supra note 21, at 75, 81. 185. AUTOBIOGRAPHY, supra note 182.



it altogether insusceptible of restraint.�186 In the draft of the Declaration of Independence, Jefferson originally pronounced it �self-evident� that from our equal creation we derived a liberty �inherent and inalienable.�187

It is in the Virginia Bill, however, that he states his most profound and original contribution moral rights theory: the mind is free essentially, because that freedom lies at the center of our experience of ourselves as moral beings. We know this truth, moreover, prior to and more certainly than we know anything, even God�s will or our duties to Him. We are self-evidently and inherently free; from this �manifestation� we derive the truth that this is the eternal will of our Creator.

The Bill next makes the seemingly consequentialist argument against religious thought control that �all attempts to influence it [the mind] by temporal punishments . . . tend only to beget habits of hypocrisy and meanness.�188 Both its position and its terms suggest that Jefferson�s claim is not simply that government mind control does not pay its way, or does more harm than good. He is saying that, because state control of our inner world is impossible, the use of power to coerce thought causes primarily unintended and external consequences of a peculiarly malignant sort. Instead of actually inculcating virtuous sentiments (as their earnest proponents hoped), censorship and thought control tend to produce pious public lying and vicious private backbiting.189 The long history of the Soviet attempt to control the thoughts of its citizens ought to stand as an object lesson in this regard.

Jefferson next asserts that the only proper influence over the mind is reason, and again offers a divine proof: the Almighty himself chose that method alone to propagate the gospel. He cautions that officials who seek to control belief usually set up their own opinions as true and infallible; that legal compulsion to support religion is sinful and tyrannical, and a great protection for falsehood and error. Jefferson maintains that our civil rights can no more depend on our religious opinions then on our opinions about physics or geometry, and that civil distinctions between religions deprives citizens of their natural right to equal treatment.

Jefferson�s draft, more broadly, asserted that �the opinions of men are not the object of civil government, nor under its jurisdiction.�190 Virginia did, however, enact the following rather startling pronouncement:

to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their

186. Thomas Jefferson, Bill for the Establishment of Religious Freedom, reprinted in 2 BOYD, supra note 22, at 545-48 [hereinafter BILL] (emphasis removed). 187. Thomas Jefferson, Draft Declaration by Representatives of the United States of America, in General Congress Assembled (1776), reprinted in 1 BOYD, supra note 22, at 315-19. 188. VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21. 189. See VACLAV HAVEL, LIVING IN TRUTH 50-57 (1986). 190. BILL, supra note 186.



supposed ill tendency is a dangerous falacy [sic] . . . [and] that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . . . .191

These passages clearly protect both belief and its propagation, that is, the freedom of expression as well as thought. They reject the supposed �ill tendency� of principles to cause harm by their propagation as a ground for their legal suppression, and maintain that the evils of expression must be tolerated until they �break out into overt acts against peace and good order.�192 This approximates the currently familiar test for the suppression of speech on the ground of its �ill tendency.�193 But it is significant that it took the Supreme Court almost two hundred years from Jefferson�s Bill to accept that view.

Finally, the Bill pronounces that no one shall be compelled to frequent or support any religious worship, nor be burdened on account of religious opinions or belief; and that �all men shall be free to profess, and by argument to maintain, their opinions in matters of religion.�194 The legislature, finally, although aware it could not bind future such bodies by mere statute, nevertheless declared that �the rights hereby asserted are of the natural rights of mankind,� and repeal would �be an infringement of natural right.�195

Jefferson�s principle of the freedom of mind has much to recommend it as a core principle of both epistemology and morality.196 The fact of our freedom of mind is what the moderns would call apodictically certain. We know it by the self-evidence of which we ourselves are constituted. There can be no more certain way of knowing anything. The certainty of the free mind is thus apodictic in Husserl�s sense, as Husserl himself maintained, because in principle no advance in knowledge or discovery of new evidence could ever disprove or undermine it.197

Jefferson brilliantly announces this philosophical principle of knowledge in the passages cited above. In eighteenth century political writings, grounding propositions in God or God�s will announced and underscored first principles as such: those that were certain, eternal, and most crucial in their importance. Yet while the natural law tradition was founded in our duties and in duty-based

191. BILL, supra note 186; VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21 (emphasis added). 192. BILL, supra note 186; VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21. 193. See generally Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). 194. VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21. 195. VIRGINIA STATUTE FOR RELIGIOUS FREEDOM, supra note 21. 196. See Michael P. Zuckert, Do Natural Rights Derive From Natural Law?, 20 HARV. J.L. & PUB. POL�Y 695, 726-31 (1997) [hereinafter Do Natural Rights Derive From Natural Law] (citing inter alia John Locke, The Second Treatise of Government, in TWO TREATISES, supra note 136, § 23, at 325-28); see also ZUCKERT, NEW REPUBLICANISM, supra note 25, at 240-46. See generally ZUCKERT, NATURAL RIGHTS REPUBLIC, supra note 7 (arguing for role of natural rights theory in founding). Here I owe much to the important work of Michael P. Zuckert, who reaches much the same position from Locke�s assertion of self-ownership in the later sections of the Two Treatises. 197. See generally HUSSERL, supra note 81.



moral argument, Jefferson began with the principle of natural freedom, not of natural duty. That principle requires no distinctly theological conception for its proof.198 The truth of the free mind is self-evident to the act of thought itself, and is known with apodictic certainty. Indeed, in his Deist fashion, Jefferson asserts that we know our freedom directly and without any external assistance. This is how we know our minds are eternally free; we conclude from this that this was the creator�s will.199

For Jefferson, our freedom of mind is not only certain, but it is inherent, unalienable, and indefeasible. Because we essentially consist in self-directed minds, we are incapable, both practically and logically, of alienating our power of self-direction. Any act of complete self-enslavement is not merely a moral but a logical impossibility.200 We are essentially free minds and, while alive, we cannot alter or extinguish that essence. Jefferson expressed this in his first public paper of 1775, asserting �the god who gave us life, gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.�201 We cannot consistently engage in an exercise of our will whose content is its own non-existence. Such a self-contradictory will would be much stronger than any condemned by Kant; it would be not merely self-destructive but essentially self-prohibitive. It follows that in every act of thought we exercise the will to the intellectual freedom that makes this possible. These features are of the essence of consciousness, and as conscious creatures we cannot deny them without contradiction.

By Jefferson�s time, several ways of putting this had become current. Locke discussed �self-evident� propositions grounded in the �first act of the mind� in the Essay, and Francis Hutcheson had more specifically asserted that the �Right of Private Judgment, or our inward Sentiments, is unalienable.�202 Jefferson�s

198. This makes Jefferson�s position preferable to Locke�s, in my view, despite the similar conclusions that follow. Cf. Do Natural Rights Derive From Natural Law, supra note 196 (citing John Locke). 199. See Plato, The Euthyphro, in PLATO: THE COLLECTED DIALOGUES, 169, 177-79 (Hamilton & Cairns eds., 1989). Jefferson is not, therefore, the sort of voluntarist that Socrates criticized, the type who holds that good must be done because it is the will of God: instead, God wills it because it is good. See id. 200. See SIMMONS, EDGE OF ANARCHY, supra note 7, at 49; DON HARZOG, HAPPY SLAVES: A CRITIQUE

OF CONSENT THEORY (1990) (expounding modern, contrary view). Proponents of absolute government in Jefferson�s day, such as Suarez, Pufendorf, and even Grotius, often defended absolute government on the possibility of self-enslavement. SIMMONS, EDGE OF ANARCHY, supra note 7, at 49. It was his encounter with great writers who could not conceive of permanent natural human rights that James Otis blamed for his near-madness in searching for them in their works. Id. Locke, on the other hand, while not expressly endorsing full blown inalienable rights doctrine, clearly denied the possibility of self-enslavement and held that absolute government was morally impossible. See id.; HARZOG, supra. 201. Thomas Jefferson, A Summary View of the Rights of British America (1774), reprinted in 1 BOYD, supra note 22, at 121, 135. What one of the greatest �true Whigs� for Jefferson, Algernon Sidney, had said about collective government applies to individual self-government: �[t]he will to govern and the will to destroy cannot coexist in the same person.� Id. 202. ESSAY, supra note 33, at 268-70; FRANCIS HUTCHESON, AN INQUIRY INTO THE NATURE OF OUR IDEAS

OF BEAUTY AND VIRTUE 283-84 (Gregg ed., 1969). The first modern natural lawyer, Grotius, also emphasized that �inalienable things are things which belong so essentially to one man that they could not belong to another,



language in his draft Declaration applies best to intellectual liberty, the liberty that is most clearly �self-evident,� as well as both �inherent and inalienable.�203 These phrases assert individual freedom with an eye toward limiting power. The Bill for Religious Liberty, Jefferson�s purest and most original statement of principles, held that the mind is essentially �insusceptible� of restraint. This, I believe, is the uniquely Jeffersonian contribution to natural rights theory, the foundational concept that James Otis went nearly mad trying to find in the prior writers on natural law and rights. It is upon this principle that Jefferson built his conception of natural freedom and limited government by consent.

The Bill recognizes, however, that government is always tempted to affect or oppress its operation by threats or bodily violence to the body. Even if all are originally free, monarchists argued that this freedom has been transferred or �alienated� to government by a Hobbesian contract, or worse, even by God Himself.204 Jefferson in his statements of first principles expresses and defends a theory of rights grounded in the inherent and essential liberty of the human mind. The free mind, directed by itself, is the core concept at work.

If the freedom of our mind is the essence of what it is to be human, if its free, if self-directed activity lies at the core of human being, several things might be thought to follow immediately. Because our free mind is the essence of ourselves, it is not only inherent and inalienable but exclusive. That is, because the self is this activity, any imagined grant of power over the mind is self-contradictory and self-destructive. The mind, the inner individual, may choose to accept or reject any argument, may follow or reject any directive, may adopt or reject any ideology, and may later decide otherwise. But the self cannot alter its essence while it exists. The free mind possesses, and in thought necessarily asserts, the freedom of conscience as well.205

As a matter of logic, the foundational Jeffersonian assertion that we necessarily and unavoidably exercise our freedom of mind, merely by existing as conscious being, has an important moral consequence. On any moral theory, it must be at least morally permissible to do that which what we cannot avoid doing. Because we cannot transfer or eliminate our essential freedom of thought, it follows that this freedom must be permitted on any moral view. But even this bare concession is enough to prove that the free mind is a genuine natural right, rather than a mere competitive �liberty� of the Hobbesian sort.206 as a man�s life, freedom, honour.� SIMMONS, EDGE OF ANARCHY, supra note 7, at 135 n.78 (quoting Hugo Grotius). 203. See Thomas Jefferson, A Summary View of the Rights of British America (1774), reprinted in 1 BOYD, supra note 22, at 135; ESSAY, supra note 33, at 268-70. 204. See TWO TREATISES, supra note 136, at 20-22, 33-35, 48-52, 67-91 (discussing relation of Locke, Hobbes, and Filmer); see also SIR ROBERT FILMER, PATRIARCHA, OR THE NATURAL POWER OF KINGS (1959) (1680); HOBBES, LEVIATHAN (A.R. Waller ed., 1904) (1651). 205. See GUYTON B. HAMMOND, CONSCIENCE AND ITS RECOVERY 3-5 (1993) (conscience defined as inner voice of moral judgement). See generally ERIC D�ARCY, CONSCIENCE AND ITS RIGHT TO FREEDOM (1961). 206. See generally SIMMONS, EDGE OF ANARCHY, supra note 7, at 34, 115-36; DIANNA T. MEYERS,



When Hobbes asserted that before positive law each had a �right� to everything, he merely restated the positivist premise that without command there is no morality at all. His supposed �right� to everything is merely the obverse of the universal absence of any obligation. Where there are no obligations or rights, however, there are mere competitive �liberties.� The �liberty� to take whatever one may steal is not an exercise of a �right,� but simply the state of complete moral anarchy that Hobbes� positivism places prior to the state. The exercise of Hobbesian competitive liberties by one imposes no duties on others, not even the duty of non-interference or non-resistance. On the contrary, a victim is completely at liberty to compete with him, even to the extent of killing him. Here Hobbes argues not that killing others is morally permissible, but that, in the absence of state power, there simply is no morality at all. Thus, the Hobbesian state of nature is a realm lacking not merely law, but morality as well. Whatever the other merits of Hobbes� conclusions, they are drawn from non-moral premises, and must, therefore, find their justification as moral matters elsewhere.

Because the freedom of thought must at least be morally permissible, it is a true natural right. Competitive Hobbesian �liberties� exist prior to any moral system, and indeed Hobbes� radical, positivist point is that morality cannot exist without government. Most contemporary thinkers soundly rejected this, following instead the natural law view of Sidney, Locke, and Jefferson that morality as a system pre-exists government. From this they concluded that we have true moral rights, defined always as rights that morally obligate others in the absence of any government at all. It followed for all the natural lawyers that the exercise of a natural right imposes duties on all other moral agents, minimally but essentially the duty of what Madison called �forbearance� on all other moral agents, that is, the duty to refrain from physical impediment.207 This doctrine was a logical corollary of their definitional stance. No reciprocal �liberties� among moral agents to kill one another with moral impunity, for example, could ever be a true moral rights. This is because such �liberties� could exist only where morality does not. To count as a moral right, its exercise must claim and impose moral duties on all other agents by definition. These rights are precisely distinguished from mere Hobbesian �liberties� by the fact that their exercise eo ipso imposes at least the duty of forbearance on all other moral agents. The Jeffersonian right of freedom of mind and thought is

INALIENABLE RIGHTS: A DEFENSE 18-21 (1985). 207. Buckley, supra note 184, at 82; see WILLIAM LEE MILLER, THE FIRST LIBERTY 4-5 (1985). The Virginia Convention and James Madison had, by the fall 1776, already endorsed this principle in their Declaration of Rights, announcing that �all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, toward each other.� Buckley, supra note 184, at 82; see MILLER, supra, at 4-5. The duty of forbearance, based on the principle of free expression of opinion, it need hardly be noted, does not include any duty to refrain from remonstrance or argument with the right-holder.



the paradigmatic natural claim right under the Jeffersonian theory. This moral right is logically derived, moreover, purely from the apodictic

facts of the free mind of man. Thus the Jeffersonian thesis may help dissolve the supposed problem of deriving morality from facts, thus, deriving morality at all. If the description of the human essence as the activity of a free mind is accurate and if this is, as a matter of fact, our permanent being, then moral conclusions may very readily and logically follow from this.208

Although Jefferson suggested in the Summary View that rights derive from the law of nature, both the Declaration and the Virginia Statute give pride of place to natural rights.209 The point Jefferson is always concerned to make, of course, is that pre-political rights derive originally from nature, rather than from the positive law or powers of states. Persons are endowed with rights by nature and Nature�s God. Governments are then an artifact created by rights holders for the security of those rights, and they derive their legitimate power from the consent of these persons. Although the relationship between natural law and natural rights may be left unclear, the relation between human rights and government powers is sharp and clear. Rights are natural, moral, and pre-political, and are possessed by all persons. Government powers are granted by persons, are not natural but an artificial, and their legitimacy is limited by the terms of the grant.

Jefferson�s lack of clarity on the subject of natural rights and law seems understandable, especially considering that the confusion still exists today. Perhaps the analysis of the relationship is the one suggested by the Virginia Statute. The natural right of the freedom of mind is the foundation of both natural rights and natural law because it constitutes the core of the concept of moral agency. It is widely agreed that no theory deserves to be called a moral theory unless it is grounded in the moral agency of the persons to whom it is addressed.210 208. Do Natural Rights Derive from Natural Law?, supra note 196, at 727-28. Professor Zuckert briefly suggests these conclusions in his treatment of Lockean self-ownership. Id. It should be pointed out that the skeptical prohibition on deriving laws from facts was first proposed by Hume, and was an entailed conclusion from his much broader point. See HUME, supra note 97, at 456-58. Hume held that the human mind could never gain knowledge of any �laws� whatever, whether moral, causal, or physical, from any evidence or experience whatever. This was based in part on Hume�s view, that we have only fleeting experiences and perceptions, and must create any connection between them by our thought. Id. It followed that even an infinite number of perceptions of apparent causes followed by effects could never in principle prove more than those �constant conjunctions� themselves. Id. at 86-93. Any further inference was merely the result mental association. See id. at 86-93. It was Hume�s seeming disproof of external laws that sparked Kant�s subjectivist revolution, whose argument that (knowledge of) any objects whatever must conform to the laws of experience made human beings once again the �legislators� of the universe. See NORMAN KEMP SMITH, A COMMENTARY

ON KANT�S CRITIQUE OF PURE REASON 26-33 (1999). 209. See generally Thomas Jefferson, A Summary View of the Rights of British America (1774), reprinted in 1 BOYD, supra note 22. 210. See, e.g., DIANNA T. MEYERS, INALIENABLE RIGHTS: A DEFENSE 18-21 (1985); SIMMONS, EDGE OF

ANARCHY, supra note 7, at 34-38 (and sources cited). Simmons states that theories of �natural� or moral right need only commit to the premises that persons are not essentially political and could be raised in a non-political



This foundation must be shared before moral discussion may even begin. The freedom of mind, and more broadly what Thomas Paine called the �intellectual rights of man,� freedom of belief, of conscience, and of expression, must be conceded before moral discussion as such may begin. One guide for the discussion of moral rights might be whether every admissible moral system must recognize the right in question. But the existence of moral agency, and the intellectual prerogatives that are inseparable from it, must be acknowledged before we may argue about morality at all. The intellectual prerogatives essential to moral agency must, therefore, be considered both the epistemic and the moral foundation on which any acceptable moral system may be constructed.

Moreover, whether these prerogatives deserve to be called moral rights turns on their moral attributes. Here we must distinguish rights from the amoral, competitive liberties of Hobbes. Hobbes notoriously claimed that all people have a pre-political liberty of everything, even to the possession or destruction of the body of another. From this fundamental error we may perhaps draw a more satisfactory account of natural rights. An individual has a full fledged moral right if and only if the mere exercise of that right imposes the moral duty of Madison, felicitously termed, �forbearance� on all other moral agents. The intellectual rights of moral agents are true rights under that standard. The exercise of freedom of thought, judgement, and expression imposes on others the minimal, but important, duty of forbearance from forcible interference.

But, of course, Jefferson further states that these rights are inalienable.211 As a result, a person does not give up any natural right upon entering society.212 The illusive, unifying theme of Jefferson�s career is his vehement efforts to ensure that the founding theory of inalienable natural or moral rights would never be destroyed by any amoral Hobbesian theory of law. Through his presidency and beyond, from his first published paper to his break with the positivism he saw in the works of Adams and Hamilton, Jefferson saw himself engaged in a titanic struggle to establish freedom and natural rights as the moral law of mankind. He saw the amoral positivism of the British system, environment and yet be fully human. SIMMONS, EDGE OF ANARCHY, supra note 7, at 34-38; id. at 103-07 (and sources cited) (arguing moral rights theory need only posit moral agency and nothing more contingent about human beings or human nature). 211. See Thomas Jefferson, A Summary View of the Rights of British America (1774), reprinted in 1 BOYD, supra note 22. 212. See Declaration of Independence, in POLITICAL WRITINGS, supra note 10, at 96; Bill to Establish Religious Liberty, in POLITICAL WRITINGS, supra note 10, at 300; Letter to Gilmer, July 7, 1816, in POLITICAL

WRITINGS, supra note 10, at 143. This would, I think, constitute Jefferson�s response to critics of natural law theory such as Philip Hamburger, who argue that the founders saw no role for natural rights in ordinary society or litigation outside of or following revolution. See generally Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907 (1993). Jefferson strove to establish that individuals retained enforceable natural right after entering society, and found the view that we give them up to power upon the founding of the state absolutely intolerable. Letter to Gilmer, July 7, 1816, in POLITICAL WRITINGS, supra note 10, at 143.



both in theory and in practice, as the foremost, permanent threat to human freedom. He saw the revolution as an extremely valuable moment of liberty, a moment when the true moral foundations and limits of state power were grounded as firmly as possible in constitutional as well as ordinary law. He believed from his study of history that with the return of peace and the establishment of ordinary power, broader ideals would be forgotten in the petty pursuit of money or status. Jefferson maintained extreme positions in his hostility to British, Hobbesian practice, but we might be more willing to forgive this if we could come to understand the battle in which he found himself. He saw himself fighting against overwhelming odds for the permanent moral freedom of mankind, and, to the extent he was right, this cause was, and remains, worth the wager of our lives, our fortunes, and our sacred honor.

Even philosophers within the liberal or natural rights tradition are profoundly divided about whether the idea of inalienable rights is defensible.213 We may draw a plausible defense of inalienable moral rights from our minimal reliance on moral agency above. From this we may attempt a theory of moral inalienability consisting in no more than the imprescriptibility of the core moral capacities. Thus, rights or prerogatives are morally inalienable if two conditions are met.214 First, moral rights are inalienable because it is wrong for any outside power, a person or the collective, to grossly invade, overbear, or destroy these capacities. This test is surely met for intellectual rights, because no exercise of power that destroys moral capacity in persons may itself be a moral exercise. This first aspect could be termed moral imprescriptablilty, and it points to a second, more theoretical condition for inalienability. A right is morally inalienable if it its surrender may never be morally required, although it sacrifice may be morally supererogatory or heroic. While we may pledge and indeed wager our lives in a great cause, ending our lives cannot be morally compelled. This second aspect of inalienability, too, holds well for the intellectual rights so precious to Jefferson. While we may continue our freedom of thought, judgment, and expression to the pursuit of other ends, it can never be morally required that we surrender or destroy our right to exercise them.

This suggests that all moral systems may be logically required to accept a

213. See SIMMONS, EDGE OF ANARCHY, supra note 7, at 115-36 (arguing against inalienable rights). Simmons comes close to recognizing that his own position might compel him to accept morally inalienable intellectual rights, but in the end he officially denies it. Id. at 126-31. To one familiar with the totalitarian thinking, to say nothing of recent First Amendment litigation, however, it is disturbing to see Simmons go so far with his thesis as to dismiss the menace of thought control (�brainwashing�) in a footnote. Id. at 132-33 n.75. 214. See MEYERS, supra note 210, at 18-30. Frances Hutcheson noted that �the right of private Judgment, or of our inward sentiments, is unalienable� in both the practical sense that it is not subject to mere command, even our own, but also in the sense moral sense that it can never be placed at the whim of any other. See FRANCES HUTCHESON, AN INQUIRY INTO THE ORIGINAL OF OUR IDEAS OF BEAUTY AND VIRTUE 283-84 (4th ed. 1969).



core of rights or prerogatives that are morally imprescriptible or inalienable. This is because no self-consistent moral system may require the agent to renounce or destroy the conditions of his own agency. The sacrifice of some rights might be supererogatory, as when the signers of the Declaration pledged their lives to the cause of liberty. But no moral system that requires moral agents to destroy their own agency as a duty, whether by prescription, transfer, or renunciation, can be logically supportable. Any moral theory that requires the destruction of moral agents contradicts its own premises. Because no consistent moral theory may impose the duty of the destruction of agency, it logically follows that every person has a right to the conditions of moral agency. And surely among the minimum conditions of moral agency are the core �intellectual rights� or prerogatives,215 the natural rights of freedom of thought, of conscience, and of expression.

Because the unavoidable obverse of a prohibition on a suggested moral duty is to grant a morally inalienable or imprescriptible right, it is often possible to show that a moral theorist�s position logically requires such rights, even though he is himself unaware of or seemingly opposed to that idea. The most pertinent case is that of John Locke. The idea of inalienable rights occurs in Grotius at the beginning of the modern natural rights tradition, but Locke seems nowhere to explicitly employ either the phrase or the concept.216 Nevertheless, Locke clearly states that it is never morally permissible to kill another person arbitrarily, and further holds that no one may give that moral prerogative to another. Thus although Locke speaks only of moral duty and natural law, his theory, as a matter of logic, grants everyone the inalienable right against murder, although Locke himself never puts the matter this way. Thus Jefferson is clearly on firm Lockean territory when he asserts that the first inherent and inalienable right is the right to life. The right to life may be renounced by a supererogatory act of heroism, and may be forfeited by a heinous act of criminality.217 But it is never morally permissible for the right to life to be prescribed or alienated to another or the state, because this is to impose a morally unacceptable, indeed morally incoherent, duty of destruction upon agents.

The rights to liberty and the pursuit of happiness, properly defined, may also be placed among the inherent and inalienable rights of persons, although these assertions have been more controversial. Clues to Jefferson�s definition of these inalienable rights may be found in his other writings. In the Summary View of the previous year, he had written that the God who gave us life gave us liberty at the same time, and that the hand of force might destroy but never 215. THOMAS PAINE, RIGHTS OF MAN 68 (1984). 216. SIMMONS, EDGE OF ANARCHY, supra note 7. 217. Jefferson recognized that inalienable rights or prerogatives may be criminally forfeited or heroically and �mutually pledge[d],� as his critics then and now do not. See MORTON WHITE, THE PHILOSOPHY OF THE

AMERICAN REVOLUTION 208-10 (1978)



disjoin them.218 Jefferson is here proclaiming both moral and natural or literal

imprescriptibility. Jefferson knows full well that English troops are fully capable of killing the rebellious colonists� troops. He argues that while such violence is physically or naturally capable of ending both life and liberty, force alone cannot separate the colonists from their natural or moral liberty while they yet remain alive. Critics such as Bentham assert that natural rights theorists such as Jefferson simply confuse moral permissibility with natural, literal, or physical impossibility, just as they confuse physical laws with moral ones. Natural rights theorists then compound this simple nonsense with the rhetorical sort, by claiming to derive the former from the latter.

The force of this criticism depends largely on the breadth of the right to liberty that is asserted by Jefferson. All theorists of moral rights assert that persons have the prerogative to bind themselves very generally to certain obligations: those that would not bind absent agreement. Indeed the moral prerogative of contract in this way is among the core authorities of the person. This means that the liberty defended by Jefferson includes the authority to contract with others, and that this constitutes an exercise rather than an abrogation of liberty. Thus, insofar as Jefferson asserts that mere force may never deprive one of physical liberty, the pure liberty of conduct, he does seem to be speaking of moral rather than physical imprescriptibility. Although raw force or violence may never permissibly destroy or prescribe physical liberty, a government created by consent may impose reasonable rules on the physical conduct of citizens. Reasonable rules are those that reciprocally preserve the greatest liberty of each consistent with the liberty of all.219 In this sense we may surrender, or transfer, some of our moral prerogative to the government when we consent to its rule. Thus it would not be strictly true that the complete prerogative over conduct is inalienable, because we have alienated a portion of that prerogative to government.

Before we adopt this view of Jefferson�s meaning, however, two potential objections must be met. The first, noted above, is that binding oneself is not a case of the true transfer or �alienation� of a prerogative, but standing alone is an exercise of it. The alienation or transfer of a prerogative consists not in the specific choice to bind oneself, but in transferring the power of choice to another agent. Moreover, to count as a genuine alienation of a prerogative, it seems that the transfer must be irrevocable and unconditional. An immediately revocable transfer is no alienation at all, and a conditional one is not an alienation either, but a trust. Thus Jefferson could very plausibly hold that no

218. Summary View, in 1 BOYD, supra note 22, at 121. 219. WRITINGS, supra note 8, at 288-89 (excerpting Thomas Jefferson, Notes on Virginia Qwuery XVIII); see also WRITINGS, supra note 8, at 422, 424, 428 (excerpting Thomas Jefferson, Opinion on the French Treaties, Apr. 28, 1793).



portion of our liberty is ever truly alienable. The most we can transfer to other agents or government is a power of decision in trust, which is morally revocable at any time for violation of the terms of the trust or other moral abuse.

This seems certainly to have been part of the Jeffersonian philosophy, and an important part of his theory of popular sovereignty and revolution. Colonists, through Jefferson, relied on this theory in their rebellion against England. It was also clearly the view of John Locke, and the Lockean roots of Jefferson�s thought need no argument here. But Jefferson also makes statements that seem to forbid this reading. Most dramatically, he is one of the few natural rights theorists to unequivocally state that we surrender none of our rights upon entering society.

First, if we cannot avoid this essential activity during our existence, we inevitably claim the free exercise of the mind as a right. We necessarily refuse any power in others to control our thought because inherent in thinking is the exclusive direction of that activity in ourselves. As a matter of the law of contradiction, we cannot claim this right for ourselves while denying it to others. This is the core error of every tyrant of history.220

Every pretender to total power has claimed the prerogative to control the inner lives, decisions, and conscience of those under his sway. Every tyrant is an inquisitor, because he wishes to command not mere actions but assent. But surely he believes that he has come to his conclusions on their merits, while seeking to deprive others of precisely the right he claims in that process. His acts are immoral because inconsistent with the natural right of his victims.

Second, because each of us inevitably exercises the right to decide on ideas and action based on our free consideration of facts, arguments, commands, and anything else we find relevant, we cannot consistently deny this right to others. The tryrant�s effort to command assent is always based on his pretensions to superiority. He himself will exercise the functions of thought and will determine the thought and actions of others as the mind controls the body. His moral inconsistency lies in his failure to acknowledge that others are essentially like himself, that all are created equal in rights, and that the very basis on which

220. THE CONSEQUENCES OF PRAGMATISM, supra note 113, at xlii. This is also the proper response to Richard Rorty�s supposedly unbeatable totalitarian, so fearful before the implosion of mythical States of our terrible century�it takes precisely the form he seeks to expunge from thought. Id. Rorty famously claimed that after yet another �end of philosophy,� this time the one wrought largely by his own work, it will follow that:

[W]hen the secret police come, when the torturers violate the innocent, there is nothing to be said to them of the form �There is something within you which you are betraying. Though you embody the practices of a totalitarian society which will endure forever, there is something beyond those practices which condemns you.�

Id. There is something within them, there is something they are betraying; and this something not beyond their practices but embedded within them, and it condemns them irredeemably and forever: nothing less than the only logical ground of their own conduct.



he destroys the freedom of others may in logic, as well as in practice, be turned against him.

CONCLUSION

The Jeffersonian theory is a liberal theory in the traditional sense, positing liberty and rights as facts while requiring power to pay its own way. The Jeffersonian Theory, therefore, supports modern efforts to ground liberty in individual autonomy and self-rule. The Jeffersonian focus on natural liberty, however, has certain advantages over autonomy theory. Modern autonomy theory begins with Kant, and his theory was grounded in duty rather than rights. Kant�s theory conceives the individual as a �legislator,� a self-ruler in the sense of self rule-maker, and his decision to base morality in natural law or duty, rather than natural liberty or right, left his theory open to gross distortion and misuse by his successors. Theories founded on concepts of duty are perhaps peculiarly vulnerable to abuse by power, and in the case of German idealism and its totalitarian successors, most would agree that Jefferson�s views prevailed in the most vigorous theoretical and practical assault history could possibly mount.

The great strength of Jeffersonian and other kindred theories, however, is their firm conception of morality and moral agency as primary and essential facts of human life, and their use of moral principles to evaluate and criticize the realm of politics. Every totalitarian style of thought begins by destroying the primacy of morality: usually by re-labelling it merely an aspect of the political. These thinkers assure us that there is nothing more essential to a persons than politics, and that there is in principle no ground on which a critique of the political as such could stand.221 The Jeffersonian theory rejects all forms of political naturalism. It is a moral theory; one that places properly places moral considerations at the center of the human project and holds every political arrangement up to the scrutiny of moral theory. By these means, the Jeffersonian theory hopes to put politics, permanently, in its place.

221. SIMMONS, EDGE OF ANARCHY, supra note 7, at 34-39. Similar points are made by Simmons. Id. (critiquing �political naturalism� and the �communitarian fallacy�). This dispute also underlies much of the debate between Richard Rorty and his critics concerning the objective defensibility of moral principles. See THE CONSEQUENCES OF PRAGMATISM, supra note 113, at xlii. See generally NAGEL, supra note 113.

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