The private society and the liberal public good in John Locke's thought

Social Philosophy and Policy

Volumn 25, Issue 2, 2008, Pages 201-234

  Claeys, Eric R ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 44949150958     PISSN: 02650525     EISSN: 14716437     Source Type: Journal    
DOI: 10.1017/S0265052508080242     Document Type: Article

References (146)

1. A. John Simmons, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992), 14;
2. David E. Bernstein, "Antidiscrimination Laws and the First Amendment," Missouri Law Review 66 (2001): 83, 105 n. 109;
3. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972).
4. Robert A. Horn, Groups and the Constitution (Stanford, CA: Stanford University Press, 1956), 7;
5. see also John Dunn, "The Claim to Freedom of Conscience: Freedom of Speech, Freedom of Thought, Freedom of Worship?" in Ole Peter Grell, Jonathan I. Israel, and Nicholas Tyacke, eds., From Persecution to Toleration: The Glorious Revolution and Religion in England (Oxford: Oxford University Press, 1991), 170-93.
6. References to Locke's Letter Concerning Toleration are made not in the notes but parenthetically in the text, with the following conventions. "LT 32" refers to William Popple's translation of A Letter Concerning Toleration (London: Printed for Awnsham Churchill, 1689), page 32. I thank Tom West for pointing out to me several discrepancies between Popple's translation and Locke's original Latin.
7. In cases involving those discrepancies, I translate Locke's Latin myself, citing John Locke, Epistola de Tolerantia: A Letter on Toleration, ed. Raymond Klibansky, trans. J. W. Gough (Oxford: Clarendon Press, 1968).
8. References to Locke's other major, mature writings are also made in the text, with the following conventions: "TT I.86" refers to John Locke, Two Treatises of Government, student edition, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), treatise 1, section 86. "ECHU II.21.51" refers to John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford: Oxford University Press, 1979),
9. book 2, chapter 21, paragraph 51. "RC 235" refers to John Locke, The Reasonableness of Christianity, ed. George W. Ewing (Washington, DC: Regnery Gateway, 1965), paragraph 235. "STCE 70" refers to John Locke, Some Thoughts Concerning Education, in Locke, Some Thoughts Concerning Education and Of the Conduct of the Understanding, ed. Ruth W. Grant and Nathan Tarcov (Indianapolis, IN: Hackett Publishing Co., 1996), paragraph 70. In quoted passages, all italics are in the original unless otherwise noted.
10. Horn, Groups and the Constitution, 8.
11. See also Peter Laslett, "Introduction," in Locke, Two Treatises of Government, 3, 86;
12. Maurice Cranston, "John Locke and the Case for Toleration," in Susan Mendus and David Edwards, eds., On Toleration (New York: Oxford University Press, 1987), 101-21, 119 and passim.
13. Similarly, while Ingrid Creppell treats Locke's Letter Concerning Toleration as justifying a broader theory of liberalism, she works with Locke's observations on religion and not with his observations on private associations generally.
14. See Ingrid Creppell, "Locke on Toleration: The Transformation of Constraint," Political Theory 24, no. 2 (1996): 200, 226, 228-29.
15. See Richard Boyd, "The Madisonian Paradox of Freedom of Association" (elsewhere in this volume);
16. and A. John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), 135-36.
17. Michael Walzer, "Liberalism and the Art of Separation," Political Theory 12, no. 3 (1984): 315, 324;
18. Creppell, "Locke on Toleration," 201.
19. LT 15. Popple's translation suggests that the right of private society is not only "immutable" but also "fundamental." Locke's Latin has no word corresponding to "fundamental."
20. See, for example, Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 300-302.
21. See Jeremy Waldron, "John Locke: Social Contract Versus Political Anthropology," The Review of Politics 51, no. 1 (Winter 1989): 3-28.
22. For more general criticisms of the consent principle, consider John Rawls, "Justice as Fairness," Philosophical Review 67 (1958): 178.
23. Ruth W. Grant, "Locke's Political Anthropology and Lockean Individualism," Journal of Politics 50, no. 1 (February 1988): 42, 59-60;
24. John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the "Two Treatises of Government" (Cambridge: Cambridge University Press, 1969), 29, 266-67;
25. Laslett, "Introduction," 3, 87.
26. See also J. W. Gough, John Locke's Political Philosophy, 2d ed. (London: Oxford University Press, 1973), 14 (finding a "basic inconsistency between [Locke's] earlier belief in absolute moral principles and his tendency later to think in hedonistic terms");
27. and Raymond Polin, "John Locke's Conception of Freedom," in John Locke: Problems and Perspectives, ed. John W. Yolton (Cambridge: Cambridge University Press, 1969), 1 ("traditional interpreters of John Locke like to pretend that he professed simultaneously a theoretical philosophy of empirical style and a practical philosophy of innatist inspiration").
28. Letter from John Locke to Richard King, August 25, 1703, cited in Andrzej Rapaczynski, Nature and Politics: Liberalism in the Philosophies of Hobbes, Locke, and Rousseau (Ithaca, NY: Cornell University Press, 1987), 15 and n. 11.
29. Peter C. Myers, Our Only Star and Compass: Locke and the Struggle for Political Rationality (Lanham, MD: Rowman and Littlefield, 1998), 18.
30. See Robert P. Kraynak, "John Locke: From Absolutism to Toleration," The American Political Science Review 74, no. 1 (1980): 53-69.
31. By describing Locke as a philosopher, this interpretation comes into some tension with more historically focused interpretations that prefer to read Locke primarily in the context of the problems of England in his day. See Laslett, "Introduction," 76;
32. and Dunn, The Political Thought of John Locke, 16-18, 266-67.
33. Although Locke's Of the Conduct of the Understanding targets the same audience, on the topics covered here that work is less relevant than and adds little to the Essay. I pass over Locke's subsequent letters on toleration for similar reasons.
34. Ruth W. Grant, John Locke's Liberalism (Chicago: University of Chicago Press, 1987), 8-9.
35. For similar approaches to interpreting Locke, consider Michael P. Zuckert, Launching Liberalism: On Lockean Political Philosophy (Lawrence: University Press of Kansas, 2002), 3-17;
36. Myers, Our Only Star and Compass, 13-26;
37. Nathan Tarcov, Locke's Education for Liberty (Chicago: University of Chicago Press, 1984);
38. Leo Strauss, What Is Political Philosophy? and Other Studies (Chicago: University of Chicago Press, 1959), 93 n. 24;
39. and Leo Strauss, "Persecution and the Art of Writing," Social Research 8, no. 1 (1941): 488, 503 n. 21.
40. Dunn, The Political Thought of John Locke, 29;
41. see Gough, John Locke's Political Philosophy, 10-11, 19, 26;
42. and Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John Locke's Political Thought (Cambridge: Cambridge University Press, 2002), 82.
43. On this point, I follow Thomas West, Ruth Grant, A. John Simmons, and Nathan Tarcov more than I do Michael Zuckert. Zuckert grounds Locke's normative claims in "self-ownership," which is not necessarily eudaimonistic. See Zuckert, Launching Liberalism, 4-5, 193-95;
44. see also Thomas G. West, "Nature and Happiness in Locke," The Claremont Review of Books 4, no. 2 (2004) (reviewing Zuckert, Launching Liberalism), available online at http://www.claremont.org/ publications/pubid.659/pub_detail.asp;
45. Myers, Our Only Star and Compass, 137-72;
46. Grant, John Locke's Liberalism, 23-25, 37-39;
47. Simmons, The Lockean Theory of Rights, 52-53;
48. and Tarcov, Locke's Education for Liberty, 210.
49. See also Nomi M. Stolzenberg and Gideon Yaffe, "Waldron's Locke and Locke's Waldron: A Review of Jeremy Waldron's God, Locke, and Equality," Inquiry 49, no. 2 (2006): 186, 197-202 (criticizing Waldron for reading Locke as a deontologist and not a utilitarian).
50. See Alasdair MacIntyre, "Hume on the 'Is' and the 'Ought'," in MacIntyre, Against the Self-Images of the Age: Essays on Ideology and Philosophy (South Bend, IN: University of Notre Dame Press, 1978): 109, 124;
51. G. E. Anscombe, "Modern Moral Philosophy," Philosophy 33, no. 124 (1958): 1, 2 (general criticisms of Kantian deontology);
52. and Creppell, "Locke on Toleration," 200-201 (on the relevance of Locke's observations on the human condition).
53. See C. B. Macpherson, The Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1962), 220-21, 243, 247-51;
54. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 202-51;
55. and Robert A. Goldwin, "John Locke," in Leo Strauss and Joseph Cropsey, eds., History of Political Philosophy, 3d ed. (Chicago: University of Chicago Press, 1987), 476.
56. Walzer, "Liberalism and the Art of Separation," 315, 324;
57. Creppell, "Locke on Toleration," 201.
58. See also Grant, John Locke's Liberalism, 48-51.
59. Myers, Our Only Star and Compass, 20-21, 107-11, 149-55;
60. Zuckert, Launching Liberalism, 148-49, 162;
61. West, "Nature and Happiness in Locke."
62. Aristotle, Politics, 1255a3-a20;
63. Goldwin, "John Locke," 484.
64. Myers, Our Only Star and Compass, 168-69, 179-226;
65. West, "Nature and Happiness in Locke."
66. The following discussion relies substantially on insights from Zuckert, Launching Liberalism, 146-68;
67. Harry V. Jaffa, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, MD: Rowman and Littlefield, 2000), 121-52;
68. Harvey C. Mansfield, Jr., Taming the Prince: The Ambivalence of Executive Power (New York: Free Press, 1989), 68-71, 91-118.
69. Jeremy Waldron, "Locke: Toleration and the Rationality of Persecution," in Susan Mendus, ed., Justifying Toleration: Conceptual and Historical Perspectives (Cambridge: Cambridge University Press, 1988), 61, 64-67, 80-82.
70. See Zuckert, Launching Liberalism, 190-97, 323-26;
71. Myers, Our Only Star and Compass, 190-96;
72. and Tarcov, Locke's Education for Liberty, 8, 209-11.
73. See Tarcov, Locke's Education for Liberty, 5, 209-11;
74. West, "Nature and Happiness in Locke";
75. Mary B. Walsh, "Locke and Feminism on Private and Public Realms of Activities," Review of Politics 57, no. 2 (Spring 1995): 251, 261-62;
76. and Thomas G. West, "Vindicating John Locke: How a Seventeenth-Century 'Liberal' Was Really a Social Conservative" (available online at http://www.frc.org/get.cfm?i=WT01F1&v=PRINT).
77. See Aristotle, Politics, 1252b27-1253a38;
78. Aristotle, Nicomachean Ethics, 1155a22-28, 1167a26-30;
79. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 23-32;
80. Nozick, Anarchy, State, and Utopia, 28-33, 300-304;
81. Michael J. Sandel, Liberalism and the Limits of Justice, 2d ed. (Cambridge: Cambridge University Press, 1992), 9-14, 60-67;
82. and Andrew Koppelman, Antidiscrimination Law and Social Equality (New Haven, CT: Yale University Press, 1996), 181-205.
83. From this paragraph until the end of this section, my argument has been informed substantially by Myers, Our Only Star and Compass, 123-29, 196-97.
84. See Aristotle, Nicomachean Ethics, 1155a20-b1.
85. See Grant, "Locke's Political Anthropology and Lockean Individualism," 59-60.
86. See TT I.58-59;
87. Myers, Our Only Star and Compass, 126;
88. and Creppell, "Locke on Toleration," 213-16.
89. Here, "noninjurious" is a term of art meant to exclude acts that threaten harms the public may properly protect against, to be sketched in Section VI.
90. See David McGowan, "Making Sense of Dale," Constitutional Commentary 18 (2001): 121, 125, 157 (discussing Boy Scouts of America v. Dale, 530 U.S. 640, 648-53 [2000]).
91. See Dale, 530 U.S. at 649-50;
92. Roberts v. United States Jaycees, 468 U.S. 609, 617-23 (1984);
93. and ibid. at 634-646 (O'Connor, J., concurring in the judgment). Here and henceforth, I use judicial opinions as expressions of conventional political wisdom, to show how contemporary political opinions contrast with Locke's. I do not cover the many legal issues that would need to be addressed before determining whether each of these cases was correctly decided as a matter of constitutional law.
94. See Dale, 530 U.S. at 648;
95. Roberts, 468 U.S. at 623.
96. Koppelman, Antidiscrimination Law and Social Equality, 1.
97. I thank Eric Miller and Andy Koppelman for encouraging me to make this point explicit.
98. Locke, Epistola de Tolerantia, 122.
99. For Popple's translation, see LT 40-41.
100. See TT I.59;
101. Davis v. Beason, 133 U.S. 33, 342-43 (1890);
102. Reynolds v. United States, 98 U.S. 145, 164-64 (1879);
103. and Horn, Groups and the Constitution, 24-25.
104. McCreary County v. American Civil Liberties Union, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104 [1968]).
105. Dunn, "The Claim to Freedom of Conscience," 180-82;
106. compare Zuckert, Launching Liberalism (suggesting that Locke's rationalism and skepticism undermine general public respect for Christianity and encourage deism and agnosticism) with Myers, Our Only Star and Compass, 46-50 (reading Locke as concluding that human faculties point toward the existence of God, even as Locke rests the grounds of human obligation on rationally knowable foundations).
107. For examples of American cases upholding anti-blasphemy laws in the face of constitutional challenges on similar grounds, consider Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824);
108. and People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811).
109. See ECHU I.3.6; RC 243;
110. and Waldron, God, Locke, and Equality, 224-26, 235.
111. Here Locke contradicts the position he took in his 1667 "Essay on Toleration," in John Locke, Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, 1997), 134-59.
112. In the text, I also contradict and correct an error I made in Eric R. Claeys, "Justice Scalia and the Religion Clauses: A Comment on Professor Epps," Washington University Journal of Law and Policy 21 (2006): 349-58, 355 and n. 28.
113. See Waldron, God, Locke, and Equality, 218-23.
114. See Jaffa, New Birth of Freedom, 30-72;
115. Robert M. Chesney, "Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic," North Carolina Law Review, 82 (2004): 1525.
116. See 18 U.S.C. sec. 2385 (West 2007);
117. Yates v. United States, 354 U.S. 298 (1957);
118. 18 U.S.C. sec. 2339B(a)(1) and (g)(6) (West 2007);
119. and Robert M. Chesney, "Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by Association Critique," Michigan Law Review 101, no. 6 (2003): 1408, 1432-52.
120. See United States v. Robel, 389 U.S. 258 (1967);
121. Keyishian v. Board of Regents, 385 U.S. 589 (1967);
122. Elfbrandt v. Russell, 384 U.S. 11 (1966);
123. Noto v. United States, 367 U.S. 290 (1961);
124. Scales v. United States, 367 U.S. 203 (1961);
125. and David Cole and James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: The New Press, 2002), 153-55.
126. Keyishian v. Board of Regents, 385 U.S. 589, 605-6 (1967);
127. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting);
128. Larry Alexander, "Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism," Journal of Contemporary Legal Issues 12 (2002): 625-30.
129. See Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC: Regnery Gateway, 1994), 329-42;
130. Harry V. Jaffa, "On the Nature of Civil and Religious Liberty," in Jaffa, Equality and Liberty: Theory and Practice in American Politics (Oxford: Oxford University Press, 1965), 169-89;
131. and John Marshall, "Report of the Minority on the Virginia Resolutions," reprinted in The Founders' Constitution, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 5: 136-39.
132. For examples of national anti-sedition policies that worked relatively effectively, consider Karl Loewenstein, "Legislative Control of Political Extremism in European Democracies, I and II," Columbia Law Review 38, no. 5 (1938): 591-622 and 725-74.
133. Loewenstein suggests that many European democracies during the interwar period effectively suppressed fascist and socialist parties until they were conquered by Nazi Germany and the Axis. If Loewenstein is correct, these countries' internal policies toward seditionists were effective regardless of whether the countries could be overwhelmed by superior external force.
134. John Dewey, Liberalism and Social Action (Amherst, NY: Prometheus Books, 1999), 27, 35.
135. Ibid., 35.
136. Koppelman, Antidiscrimination Law and Social Equality, 181;
137. Nozick, Anarchy, State, and Utopia, 30-33, 299-306;
138. see Koppelman, Antidiscrimination Law and Social Equality, 181-90, citing Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990), 55.
139. See Robert D. Putnam, "E Pluribus Unum: Diversity and Community in the Twenty-First Century," Scandinavian Political Studies 30, no. 2 (2007): 137, 146-59.
140. See, for example, Koppelman, Antidiscrimination Law and Social Equality, 57-76;
141. and Ronald Dworkin, "Reverse Discrimination," in Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 227-28.
142. See Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992), 13-143;
143. Drew S. Days, III, "Reality," San Diego Law Review 31, no. 1 (1994): 169, 170-80;
144. Richard McAdams, "Epstein on His Own Grounds," San Diego Law Review 31, no. 1 (1994): 241, 249-64;
145. Samuel Issacharoff, "Contractual Liberties in Discriminatory Markets," Texas Law Review 70, no. 5 (1992): 1219, 1225-34;
146. and J. Hoult Verkerke, "Free to Search," Harvard Law Review 105, no. 8 (1992): 2080, 2088-96.