In a brief, three-part series, I will present an integralist reading of the American founding, with a particular emphasis on its implicit moral philosophy, the idea of the social contract, and the founders’ notion of sovereignty. Part I will discuss some of the explicit and implicit influences of the Protestant “reformation” on the American founding and on the founders’ theory of natural law. In Part II, I will turn to the idea of sovereignty reflected in the founding consensus and examine the further implications of a contractually formulated society. Part III will take a closer look at the thought of Madison and Jefferson and apply the foregoing analysis to a discussion of America’s evolving “civil theology”, exploring how it relates to the various contemporary interpretations of the “American experiment”.
In the contemporary American conversation, the political theory of the revolutionaries who founded the nation is a topic fraught with tensions. Despite often violent disagreement, defenders of the American political tradition both left and right frequently present the founding documents in triumphant tones, proclaiming its merits as the highest and purest embodiment of free, democratic government; a carefully crafted machine of intricate construction, which despite repeated failures to embody its highest ideals, represents the triumph of the equality of all men, freedom from arbitrary oppression, and a moral consciousness that ever bends towards justice. In such form, it has come to represent what might be labeled as a political theology, standing as a universal system that purports to stand as an open-ended, ideologically “neutral” system applicable to all peoples at all times.
Contemporary critics of the founders, on the other hand, take a variety of stances: those of the left tend to fault their thought for being out of step with the norms of the modern academy, but do so secure in the knowledge that, from their perspective at least, these failings have been addressed and rectified by the progressive advancement of justice in history. While this interpretation yields a political philosophy that would be largely alien to the majority of the founding fathers themselves, it may also be considered a defensible position in that it draws on certain implications of the founders’ assumptions, even if it often employs an entirely distinct conceptual vocabulary. The legal framework the founders bestowed is lauded as the most secure guarantor of individual rights yet conceived, while their teleological ethics are ignored or explained away as a parochial reflection of their regressive, pre-modern bigotry. The gaps in the founders’ thought created by their largely unstated assumptions and unresolvable differences are then filled with a revised human anthropology, one that is believed to be both more humane and better informed by the advance of empirical science.
Critics of the right generally seem to read this revisionist project back into the thought of the founders, criticizing them for being insufficiently attentive to the moral demands of a democratic society and establishing a regime of freely self-creating, autonomous individuals. Alternative formulations of this critique attack not the principles as originally formulated, by instead lay the blame at the feet of later interpreters who gradually eviscerated this living tradition through the constant expansion of the federal government, an evolving interpretation of the Constitution, and a gradual separation of duties from rights. Adherents of this school cogently highlight the founders’ repeated emphasis on the necessity of a virtuous, industrious citizenry for the maintenance of a free society, and on their generally favorable view of the Christian religion as the ultimate and necessary guarantor of that moral consensus.
This conservative defense of the founders aims to demonstrate the underlying coherence and the timelessness of their understanding of the human condition, emphasizing its continuity with the foundational Western anthropologies of Plato, Aristotle, and Aquinas; within this frame, thinkers of this school argue that, despite later reinterpretation, the founders were far from being modern liberals.1 In so doing, these scholars typically emphasize either the Christian underpinnings of the American founding, or taking a more contemporary, ‘secular’ view, defend the founding consensus on pragmatic terms that reverence the ‘moderate Enlightenment’ stance reflected in the nation’s founding documents.
Here I will suggest that all of these ideological interpretations can claim a meaningful degree of justification, and untangling why this is the case aides in illustrating the extent to which the American political tradition retains a fundamental continuity with the tradition of Latin Christendom and its natural law theory, as well as the extent to which it represents the subtle, ultimately untenable deformation of that tradition. In so doing, I will attempt to illustrate how, although the founders’ original political theory was coherent and in some sense representative of a relatively orthodox Christianity, it contained fundamental ambiguities and unstated metaphysical assumptions – or one might say, anti-metaphysical assumptions – that informed what would follow. Moreover, whatever consensus did exist among the founders, it must be balanced against an understanding of their significant disagreements, particularly with respect to the critical role that religion was expected to play in American public life.
In short, I will suggest that the gradual reinterpretation of the founders’ thought celebrated by the left and bemoaned by the right reflects an endogenous, if unforeseen, development of the assumptions of their political theory. Critics and defenders both right and left pair the assumption of a broad right of private conscience in ultimate questions while presupposing a sovereign state as the final, universal authority, even as that state is simultaneously expected to remain “neutral” to ultimate questions; a tension which has been magnified with the gradual expansion of the Federal government. Contained here is an appeal to purportedly universal standards standing outside the political order, but such claims are almost always to be mediated by and through the state, a construction that stands at odds with the founders’ notion of the “sovereign” individual. This is a conception that, in varying degrees, expresses a certain fundamental agnosticism about man’s summum bonum and reflects the monumental intellectual and political changes in political thought that followed the so-called “reformation”; assumptions that will prove to be critical points of emphasis in what follows.
But for the moment, I wish to avoid getting bogged down in the contemporary debate and political landscape. Instead, I will largely focus on the founders’ thought as they understood it themselves, emphasizing the common consensus they embodied in the nation’s founding documents, with occasional forays into the private writings of a handful of the founders whose thought has been particularly influential in religious matters. In so doing, I will largely retrace the arguments made by contemporary conservative defenders of the founders’ political thought, most notably Thomas G. West, Vincent Phillip Muñoz, and Ellis Sandoz. Their scholarship ably recovers the founders’ original perspective and enables a discussion of why this consensus, although in a sense comprehensive and internally coherent, was ultimately likely to prove unstable and even self-defeating. In short, I will argue that even those scholars most dedicated to depicting the founders as being out of step with the modern liberal consensus illustrate the degree to which they shared fundamentally modern, liberal assumptions, even if they were tied to a traditional anthropology of man and frequently spoke of the natural law in terms seemingly consistent with St. Thomas Aquinas.
The relatively terse and potentially open-ended contents of the public documents of the American founding, combined with the extensive and often contradictory private writings of the individual founders, is undoubtedly one source of this divergent range of interpretations. As the jurisprudence of the Supreme Court has illustrated throughout American history, particularly in the last century, one can readily combine a selective reading of one or a few of the individual founders’ writings with the text of the Declaration of Independence or the Constitution to produce a wide range of mutually exclusive interpretations and legal-political theories. However, even when one steps beyond such goal-seeking interpretive schemes and accepts that there was indeed a broad theoretical consensus underwriting the American founding, significant scope for disagreement remains. The fact that such a diverse range of opposing interpretations, celebrations, and criticisms of the American idea is possible speaks to the fundamental tensions at the heart of the American political tradition; and while turning, as Thomas G. West does, to the content of public policy in early America provides clarifactory evidence of their natural rights theory in action, these issues remain, suggesting that the issue lies deeper, in the very content of that theory.
The American Revolution as Culmination of the Protestant Revolt:
“Until the Day of Judgment, the Augustinian teaching on the two kingdoms will have to face the twofold open question: Quis judicabit? Quis interpretabitur? [Who will decide? Who will interpret?]
– Carl Schmitt – Political Theology II, 115
In a process similar to the manner in which the early Church converted classical society by ‘leaving the forms intact and changing the essences’2, the American founders often spoke in terms intelligible and seemingly compatible with a Thomistic philosophy of law, but with a critical shift in emphasis originating in the Protestant “reformation” and the reconfiguration of political space it unleashed. This movement is paralleled by and closely aligned with the Enlightenment critique of metaphysics and abstraction as an obscurantist product of medieval superstition and “popery”, and the attendant conception of God as a rationalized, demystified “God of nature”. Even in its most moderate form, this was a movement that sought to free moral philosophy from a dependence on religious authority by securely grounding it in the deliverances of reason, linking the success or failure of the American experiment to the intellectual search for a motivation for a virtuous life discoverable by the light of man’s “natural reason”. And in this respect, this was a project firmly in the tradition of Protestantism, with its variable emphasis on eliminating the social influence of a hierarchical, authoritative, and visible church. The intersection of these developments is visible in the natural law theory of the American founding, which, as presented by Thomas G. West, closely resembles the natural law theory of the later Locke.
In his recently published “The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom”, West aims to recover the thought of the founders while defending their perspective from a contemporary, secular, and pragmatic perspective. Through an extensive review of early American public policy, West’s revisionist project is highly successful in illustrating the founders’ enduring concern for the inculcation of a public moral orthodoxy that would enable a free society of limited government to function. In so doing, he ably demonstrates that the idea that the founders were unconcerned with private morality or espoused a vision of a nation of free, self-creating autonomous individuals is simply false. Whatever merits this critique may have with respect to contemporary American society, West shows that the blame for this situation may not be laid on the founders’ stated intentions.
Liberalism & Republicanism – The Two Pillars of American Order:
“In a sentence, the founding was the rearticulation of Western Civilization in its Anglo-American mode…”
Ellis Sandoz – Republicanism, Religion, and the Soul of America, 56-57
As West presents it, the American founding was both liberal and republican, reflecting, respectively, a commitment to the protection of individual rights and the promotion of a salutary moral consensus that was firmly rooted in the Christian tradition. Moreover, he makes it clear that the founders saw these two pillars of government as essentially and mutually reinforcing. But given this fact, the question as to whether or not these principles contained the seeds of what would follow is largely ignored in his scholarship: if the founders’ thought is so unambiguously clear, why has it been so prone to misunderstanding and reinterpretation? Is the apparent necessity of such a project of recovery not suggestive of a certain fundamental ambiguity?
These questions are urgent ones, for that the mode of thought depicted by West stands at a distance from the contemporary formulation of the American ideal is beyond doubt. To the surprise of many living Americans, the founders at large would have agreed with the sentiments expressed by George Washington in his farewell address: that “reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle”3. West persuasively argues that all of the founders, including the oft-claimed exceptions of Madison and Jefferson, believed that free government and a virtuous citizenry were underwritten by firm religious beliefs and sound religious opinions. Moreover, against the arguments of Thomas Pangle, Alan Gibson, Peter Onuf, and Gordon Wood, West convincingly demonstrates that the founders did not merely express a concern for moral and religious formation, but also established a government that did much to promote a common moral consensus: through a legal code that reinforced a traditional Christian morality (particularly with respect to the protection of the family), the formation of educational institutions – and perhaps most shocking to modern liberals – the public promotion of the Christian religion.4
“Civil government…is extremely defective, and unless it could derive assistance from some superior power, whose laws extend to the temper and disposition of the human heart, and before whom no offense is secret, wretched indeed would be the state of man….”
– Theophilus Parsons in Barnes v. Falmouth (1810)
West uses a host of examples to illustrate this point, including the citation of a series of early education bills, such as Massachusetts’ 1789 bill that states “a general dissemination of knowledge and virtue is necessary to the prosperity of every state, and the very existence of the commonwealth” 5, as well as the revealingly direct text of the Northwest Ordinance, which resoundingly proclaims that “[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.”6 West further emphasizes this point by pointing to the widespread prevalence of blasphemy laws – which speak to a concern for the maintenance of an appropriately God-fearing society – religious tests for office, and the inclusion of sacred language at public events. In his extensive citation of the text of early American laws, as well as the thought of specific founders, West convincingly argues that the founders were not so naive as to believe that a narrowly Smithian setting of self-interest against self-interest alone could produce a stable polity on its own; as James Madison states in the Federalist papers, “…there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes these qualities in a higher degree than any other form.”7
Life, Liberty, and the Private Happiness:
But, as suggested by Madison’s emphasis, this was a specifically Protestant conception of religion and the natural law, one that assumed an underlying condition of social anarchy as man’s natural condition and as well as a “graceless body politic”.8 This latter assumption is ably demonstrated by West’s description of the founders view of the state of nature, which as he suggests was not viewed by the founders as some sort of primordial origin myth of the modern state (as in Rousseau), but as “…a condition that some if not all Americans lived in during the transition between British and American rule”; which is to say, the state of existence without a unitary sovereign government.9 In the state of nature, man is not free of the moral obligation of the natural law, but as Madison states in Federalist 151, these are still conditions in which “…anarchy may as truly be said to reign”. While the need for civil government to enforce the natural law is an entirely orthodox position, what is distinct here is the assumption that in the absence of a unitary sovereign government, the default state is one of anarchy and violence. This represents a departure from the medieval assumption of an underlying peace, reflecting a distinctly post-“reformation” worldview.
Moreover, it is important to note in the founders’ emphasis on education and virtue there is a shift in motivation; despite the frequent appeal to a divine Creator, the purpose of education specifically and religion more generally is decidedly immanent and practical, conceived so as to produce what Alasdair MacIntyre has called “goods of order”.10 It uneasily serves to undergird an orderly and effective public realm, but not to advance theological claims in public discourse; here, man’s highest goods must be sought in the private realm. This is not, as in the medieval conception, a civil power seeking to prepare its subjects for ultimate union with God, subsisting within the “metaphysics of peace and abundance” of traditional Latin Christendom, but a pragmatic tool to secure consensus and peace against conditions of anarchy, scarcity, and unresolvable confessional differences.11 Moreover, this was an expression of the claim of a unitary sovereign govern to gather a diversity of wills into one – “e pluribus unum” – a claim that stands in uncomfortable tension with a democratic, limited government resting on the free conscience of the individual.
For while the sort of “moderate enlightenment” views present in the thought of the American founders retained a teleological view of man’s condition and a public commitment to the existence of God, it did so through a rationalist matrix that represents an almost complete reversal of traditional Christian thought and its maxim of “credo ut intelligam”. While divine revelation remains essential for motivating the pursuit of the virtuous life, one gets the sense that, as in the thought of Locke, it is almost purely as a crutch for the “illiterate bulk of mankind”, “providing something solid to move [those]” unable to pursue or otherwise unsuited for the philosophic life.12 Here the notion of God is akin to an Aristotelian prime mover, an absentee master of His creation who, having crafted the universe, formed its natural laws, and set it in motion, remains unavailable and hidden to man. Meanwhile, grace itself is largely reduced to the faculty of reason itself, as a kind of “natural revelation” that, more reliably than any church, provides instruction as to what comprises the principles of true religion13. As such, the God of the founders is a minimalist construction, a God of a decidedly pragmatic, demystified, and rationalist character.
The Social Contract & Protestant Liberty:
It is this “moderate enlightenment”, Protestant perspective, in tandem with the nature of the social contract that, perhaps better than any other, explains the founder’s inability to ground their commitment to natural law on terms that would not be superseded by the advance of empirical science. As West illustrate, the social compact of the founders is, like the “state of nature”, not the originating myth it is so often caricatured as, but a normative theory.14 And here we may see one of the central tensions of the founders’ natural law theory; this is a voluntary society ostensibly formed by reasoned consent, made by an appeal to a transcendent authority standing outside of the political order, but without a mechanism to defend and define the nature of that authority. This is a circular construction, for as Frederick D. Wilhelmsen has highlighted, “[t]he democratic society… must test any possible commitment to the natural law by appealing to the electorate”, a commitment that cripples natural law by making its eternal commands ultimately voluntary and unacceptably open to reinterpretation.15
“Thirteen governments thus founded on the natural authority of the people alone, without a pretence of miracle or mystery are a great point gained in favor of the rights of mankind.”
– John Adams (Sandoz 46)
For while the founders were duly concerned with the problem of how to insure that “the reason of the public” and not their “passions” would “control and regulate the government” (Madison), and harbored justified doubts about the possibility of a widespread popular ‘enlightenment’, their theory of natural law rested on an appeal contingent on the individual’s free acceptance of the source of moral obligation.16 Although the founders may not have believed that man, free of civil government, was free from any moral authority, as Frederick D. Wilhemsen has pointed out, “without an authoritative voice interpreting that transcending dictate, the natural law might as well be relegated to the sphere of private opinion.”17 Instead, what they offered was an appeal to an objective standard reflected through the subjective determinations of the individual, and expressed in quasi-empiricist, pragmatic form; this was a construction seemingly destined to privatize religious concerns and already leaning towards legal positivism, despite its explicit reliance on the natural law.
That an educated populace was expected to maintain this public orthodoxy belies a fundamentally Protestant trust in the light of individual interpretive authority; a confidence expressed by John Adams in his triumphant claim that “…it can no longer be called into question, whether authority in magistrates and obedience in citizens can be grounded on reason, morality, and the Christian religion, without the monkery of priests, or the knavery of politicians.”18 This is an explicit affirmation of a belief that religion could remain the driving force of public moral orthodoxy while being rationalized, privatized, and individualized; implicit, meanwhile, is a sense that the reasoned and reflective mind would inevitably converge on the final, indissoluble truth, and that reason freed from the influence of religious authority would not be capable of denying man’s teleological nature.
It is to this end that West’s recovery and interpolation of the founders’ theory is especially useful, for as the work’s subtitle suggests, natural rights and the natural law are at the heart of the founders’ thought. But this was a decidedly modern form of natural law; a theory of natural law that West describes as the “political theory of liberty”, and one unambiguously informed by Protestantism19. As expressed by the late 18th century revolutionary historian David Ramsay “all Protestantism is founded on a strong claim to natural liberty, and the right of private judgment.”20 These underlying Protestant commitments were exaggerated by the theoretical requirements of justifying the American Revolution, which necessitated the deployment of a social contract theory in which equality is most frequently expressed in anti-hierarchical form, in the sense that no man is justified in ruling over another. While the basis of the equality of man as originating in his creation in imago dei remained, in revolutionary rhetoric it took a decidedly secondary, and seemingly contingent place. This was a tenuous balance of Whig liberty and Christianity, resting on a fundamentally new set of assumptions and a new configuration of political space from the traditional Christian doctrine of natural law.
As Ellis Sandoz suggests, it is “[w]ith freedom of conscience we may sidle in the direction of what is new in American liberty and rule of law”, for this was not the conflation of liberty with license, but what was “…overwhelmingly a freedom to be religious according to one’s own lights…”, albeit within a firmly Protestant matrix.21 As such, the founders did not propose the purely liberal polity of today, in which, as William Cavanaugh puts it, the state secures the peace between various conceptions of the good; rather, the founders assumed a relatively stable Christian society that would tolerate a degree of confessional differences with more or less compatible understandings of man’s ultimate end22. John Jay stated this most explicitly, sacralizing this underlying consensus in Federalist No. 2 by proclaiming that “[p]rovidence has been pleased to give this one connected country to one united people- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs…”; a unity that was viewed by the founders as an essential perquisite of a functional government.23
However, despite the repeated concern for the common good of the polity, given its fundamentally Protestant origins, this remains a common good mediated by individual, privatized authority. Here one must bring one’s own teleology and ultimate ends to fill out this view, otherwise one is left with an empty appeal to abstraction. Moreover, this Protestant conception reflects a fundamentally individualistic concern with one’s own salvation, expressing an implicit denial that the highest and greatest goods are communal and meant to be shared amongst all. In tandem with a sovereign government restricted to the mundane, practical realities of everyday life, this would over time serve to reinforce the absolute supremacy of secular, temporal concerns in public dialogue. As the legal scholar Steve D. Smith suggests, as a result of this emphasis, we come to see “‘ecular,’ rather than denoting one realm within an encompassing and ultimately ‘religious’ reality,… [as describing] a comprehensive view of life and the world.”24
The Empiricist Conception of Natural Rights:
In the founders’ conception, the natural law stands “as the ground of rights” and “as defining the moral limits of the natural right of liberty”. As West describes it, borrowing a phrase from John Adams, these “equal laws of morality” are the laws of nature. This was to express, contra Hume and later skeptics, an explicit sense that nature implied a “a standard of right and wrong, discernible by the human intellect, based on the constant features of human nature.”25 As such, the founders (and West, for that matter) generally believed that independent of the Bible and the authority of the Church, people were able to grasp that a first principle animates the world: the “God of nature”, insofar that He is known by reason’s inferences from the order of nature, as reflected in man’s experience of human history; or at least, the refined Protestant gentleman’s vision of history.
This largely shared view of natural law and the fundamental grounding of American government in natural law reflected a consensus that some of the founders felt was so self-evident that it was simply unnecessary to enumerate it at all.26 And while there is a large body of evidence supporting the founders’ commitment to natural rights, the ambiguity of their natural rights theory is evident, not least in the fact that, as West highlights “…how natural law leads to the rights of individuals is never clearly spelled out.”27 To the extent they did clarify the moral meaning of fundamental equality, the founders enumerated a host of rights they viewed as pre-political, reflecting what Philip Hamburger has termed as their “share of portions of the natural liberty”.28 This is not yet, as William Cavanaugh put it, the “priority of freedom to the good”, but rather freedom of conscience as essential to the good, an unstable combination that would eventually devolve into something resembling Robert Dworkin’s contemporary characterization of this formula as mere “equal concern and respect”.29
Negative Rights, Subjective Authority, and an Anti-Metaphysical Natural Law:
In place of a clear theoretical elaboration of the natural law, we largely have a list of natural rights, free from any description of how these rights emerge from the natural law. Here, the negative formulation of rights as universal, abstract “freedoms from” is important, as it reflects a reversal from the medieval conception of rights as contextual and concrete. As Andrew Willard Jones has suggested, one important difference here is in the extent of the underlying social conflict assumed; and it is this underlying assumption of universal conflict on ultimate questions that reflects a post-“reformation” political theory. Similar to the tensions expressed by the notion of a sovereign state originating in consent, the individualistic, abstracted emphasis of the Bill of Rights does not sit well with the traditional corporate basis of natural law, however much the founders, as originators of a newly sovereign government, may have decried radical individualism. This tension is succinctly expressed by David Ramsay, who speaks of an American government formed by individual citizens, who “collectively possessed sovereignty”.30 If this was to be the ground of the natural law and the lynchpin of the American public orthodoxy, it was one resting on a fundamentally unstable foundation.
Further reflecting the ambiguous nature of the founders’ natural law theory, West recovers three principal arguments expressed for the obligatory character of the moral law: first and most essential to theological orthodoxy, the moral law is asserted as an expression of the divine law, as the express commands of God. As an adjunct to this argument, the founders also asserted the existence of an inborn moral sense, and as already alluded to, argued from the natural fitness of things; this is an Aristotelian eudaimonism expressing a direct connection between natural rights and human well-being.31 While all three arguments are in themselves potentially consistent with the Catholic and Thomistic understanding of natural law, it is the political and epistemological framework within which they are embodied that most clearly signals a critical shift. When presented individually, and absent a unifying metaphysical frame, what we have is in turn a theological, an empiricist/materialist, and a pragmatic argument, allied to the assumption of a sovereign state, which is supposed to derive its legitimacy from the free individual.
A Pragmatist, Proto-Postivist Epistemology:
In this assemblage of arguments, we can we see a nascent positivist and pragmatist epistemology, one that “…reduces truth to empirical factuality and usefulness”32. This is revealed in West’s rather frank admission that while a standard of human well-being as the foundation of natural rights seems “manifestly self-evident”, it also turns on considerations of usefulness that are not morally binding, absent the assumption of belief in a Christian God.33 West argues, with good reason, that the founders presented rational arguments on a utilitarian basis, but offered moral force by including language of divine providence to lend them moral weight. In short, West reads the founders’ natural law theory as largely resting on consequentialist grounds, a reading that, whether intended by the founders or not, is a defensible interpretation.
Here we have an important distinction from the Thomistic conception of natural law as “a command of reason, for the sake of the common good, promulgated by whoever is in charge of the community”; indeed, this is a conception much closer to Cicero’s notion of the natural law, inheriting its tensions and limitations.3435 Despite the theistic rhetoric earnestly employed and the unanimous belief among the founders that moral commands lacked a motivating impulse absent a divine creator, the political arguments are made on primarily pragmatic grounds, rather than emerging from a particular, well-defined metaphysical or theological framework. Here the teleological origin of natural rights is a mere empirical fact, and a seemingly contingent one, making the rights it proclaims prone to reduction as mere claims against other members of society. Moreover, as we will later see, that such assertions could be made on a purely empirical basis was a matter open to potentially interminable objections.
This turn back to something closer to a classical conception of natural law largely reflects the anti-Medieval and anti-clerical prejudices of even this moderate Enlightenment Protestantism; in this view, the monarchical and clerically led society of the ‘Middle Ages’, was, as John Adams put it, essentially a conspiracy instituted to keep the people “ignorant of everything but the tools of agriculture and war.”36 This was an expression of the common Enlightenment theme of anti-clericalism and its revulsion of established churches; a sentiment worsened by the significant degree of alignment between the established Anglican “church” and the loyalist cause during the Revolution37. But in rejecting the need for any definitive interpretive authority, the founders were expressing a belief that the people could better provide for the needs of a sustainable, free community and maintain a Christian moral orthodoxy if freed from medieval superstitions and the “artificial weight of hereditary privilege”38. For absent in this scheme but essential to the earlier understanding of the natural law is an interpretive authority committed to maintaining and defending its tenets, in the form of the Church. Moreover, an abiding concern for tyranny and a need to restrain democratic majoritarianism demanded a government that would avoid such definitive questions as a matter of course. However, it did so while incorporating the modern assumption of a unitary sovereign state, grounded in a conception of natural law based on largely unstated metaphysical assumptions, and stated in terms that would allow its conception of natural rights to be freely separated from any teleological basis.
