The Volokh Conspiracy
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Good and Evil in the American Founding
How Americans ought to think about our founding principles.
Over the course of my own lifetime, there's been a massive cultural change in how Americans talk about the American Founding. For the last decade or so, it's fair to say that the Founders have come in for a good deal more moral scrutiny. How much of this is deserved, and how should we think about the Founding today?
I'm pleased to announce that my attempt to answer these questions—"Good and Evil in the American Founding," the 2023 Vaughan Lecture on America's Founding Principles, delivered to Princeton's James Madison Program—is now available on SSRN and forthcoming in the Harvard Journal of Law & Public Policy.
From the abstract:
The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders' ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders' historical legacy—and why we might respect and indeed honor their contributions with open eyes.
The essay is an extended meditation on George Washington's 1790 letter to the Hebrew Congregation in Newport, R.I. (also known as the Touro Synagogue), addressing challenges from both left and right to the principles that Washington expressed. It's somewhat less strictly legal than most things I publish; it may be among the most hot-button; certainly it's the most personal and heartfelt. (And it's short—only 23 pages!)
I'd be honored if you read it. From the introduction:
I'm honored this afternoon to deliver the Vaughan Lecture on America's Founding Principles. I'd like to begin with a short illustration of those principles, as expressed in the famous letter from George Washington to the Hebrew Congregation in Newport, Rhode Island.
In 1790, Rhode Island finally agreed to the Constitution. And in August of that year, President Washington paid Newport an official visit. Among the clergy who welcomed him to the city was Moses Seixas, the warden of Congregation Yeshuat Israel, a small community of Sephardic Jews. In response to the congregation's letter of congratulations, Washington wrote the following, which I hope you'll indulge my reading:
Gentlemen.
While I receive, with much satisfaction, your Address replete with expressions of affection and esteem; I rejoice in the opportunity of assuring you, that I shall always retain a grateful remembrance of the cordial welcome I experienced in my visit to Newport, from all classes of Citizens.
The reflection on the days of difficulty and danger which are past is rendered the more sweet, from a consciousness that they are succeeded by days of uncommon prosperity and security. If we have wisdom to make the best use of the advantages with which we are now favored, we cannot fail, under the just administration of a good Government, to become a great and a happy people.
The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship[.] It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
It would be inconsistent with the frankness of my character not to avow that I am pleased with your favorable opinion of my Administration, and fervent wishes for my felicity. May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.
I don't remember when I first read Washington's letter, likely in high school. To a Jewish kid who grew up in St. Louis, Missouri, this letter of welcome from the Father of His Country has always been extraordinarily moving—as well as deeply emblematic of America's promise, both to my family and to millions of others.
Moses Seixas was the child of conversos, Jews who had been forcibly converted and who had preserved their faith in secret across the centuries. His father Isaac left Portugal and came to America, where Moses would co-found the Newport Bank and lead the local congregation. His brother Abraham fought in the American Revolution; his brother Benjamin co-founded the New York Stock Exchange; his brother Gershom was a cantor in New York and Philadelphia, a colleague of Alexander Hamilton, a participant in Washington's first inauguration, and a trustee of Columbia College—the only Jewish trustee for more than a century, until Benjamin Cardozo in 1928.
It's hard to imagine a more American story than this, or one more representative of America's founding principles: that a family could flee oppression in the Old World to build a new life in the New, a place that would give "to bigotry no sanction, to persecution no assistance," and where they could sit, each "under his own vine and figtree," and there would be "none to make him afraid."
But my topic today isn't just praise for America's Founding and for its founding principles. Rather, it's "Good and Evil in the American Founding"—and it isn't hard to find plenty of both.
As we all know, the past decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders' ideals as less valuable and their failings as more salient.
On the left, the primary charge is that America has never lived up to its principles—that its principles are hypocrisies, pious frauds, designed to disguise the privileges of an elite and the oppression of others. How can it be said that America gave "to bigotry no sanction," when it held millions of people in slavery based on the color of their skin, and denied rights to millions of its own citizens based on their sex or their poverty? How can it be said that America gave "to persecution no assistance," when Washington and his wife not only owned hundreds of human beings in their own right, but even sought to recapture one of them, a woman named Ona Judge, after she fled from the presidential mansion? How can it be said that America let "every one . . . sit in safety under his own vine and figtree," when it repeatedly engaged in the military conquest of its Native American neighbors? Indeed, how can we celebrate the freedom of the Newport congregation, when some of its members were themselves stained by the sin of slavery, a trade in which Abraham Seixas, Moses's own brother, took shameful part?
This isn't nitpicking. These are deeply woven features of the Founding era that have afflicted us to the present day. And any moral outlook that insists on taking these things seriously, one that refuses to shrug them off, may understandably have difficulty hearing unqualified praise of the Founding era or indeed seeing statues and monuments raised to its leaders.
This is one side of the challenge, largely from the left: that America's adherence to its founding principles was always limited, always only for a few. But more recently we've seen another side of the challenge, largely from the right: that the principles themselves have always been flawed. On this account, the problem isn't that America failed to live up to Washington's "enlarged and liberal policy." The problem is the liberalism—the effort to cabin true morals and true religion to some private sphere in favor of a public compromise with falsehood and error. The state's vaunted neutrality can never truly be neutral, the critic might say; it's always deciding, always making choices, even if it conceals those choices in the language of evenhandedness. And even if the state could be neutral, they might argue, so much the worse: neutrality between good and evil is no virtue, and extremism in defense of good is no vice.
These, then, are the challenges, from both left and right, to America's founding principles. How can they be answered?
I'll suggest today that both challenges stem from a form of pessimism—but that neither is quite pessimistic enough. Both challenges look at a society that we're accustomed to thinking good, and both see within it very severe evils. But neither quite accepts that widespread societal evil is the ordinary condition of societies and of the people who compose them. It's the circumstance in which, throughout history, we normally find ourselves, and we have to assess both people and political regimes accordingly.
As I'll argue today, we ought to be absolutists about right and wrong, but relativists about praise and blame. That particular wrongs were widely practiced in the past (or, indeed, are now widely practiced in the present) doesn't make them right. Good and evil don't depend on what the people around you will celebrate or condemn. But when we look at human beings in different times and places, we won't be able to understand them, let alone appreciate what's good in them or worth celebrating in them, unless we attend to the circumstances in which they lived and measure them in the same way that we routinely measure ourselves. And when we look at human governments and at the inevitable compromises they reach, we won't be able to understand them either, much less appreciate what goods they have to offer the world, if we ignore the circumstances of disagreement and division they have to face.
The principles on which America was founded—that "it's a free country," that you can go off and found your own weird commune so long as you aren't hurting anybody, and so on—have been slowly but remarkably effective, over time, at cabining the ever-present human impulse for power over others, and at fulfilling Washington's dream of offering "a safe & agreeable Asylum to the virtuous & persecuted part of mankind, to whatever nation they might belong."
And the reliance on liberal freedoms as a second-best, a modus vivendi among those who disagree, has been responsible for hundreds of millions of lives lived in safety and happiness, as well as a historically extraordinary outpouring of freedom, creativity, and abundance. If politics is the art of the possible, we should recognize that America has achieved things that few at its Founding would have thought possible, and that its founding principles deserve much of the credit.
As they say, read the whole thing!
UPDATE: Now published in the Harvard Journal of Law & Public Policy.
