The Ideas That Formed the Constitution, Part 16: John Locke and the 9th Amendment

Commentary

John Locke (1632–1704) was one of the greatest figures in English scholarship. His influence on the American Founding was enormous. Some have referred to him as a “Founding Grandfather.”

Locke shared points of similarity with many other figures profiled in this series: He was a master of multiple fields, including science, several branches of philosophy, and medicine. (He was a practicing medical researcher and physician.) He was a man of affairs: He served on Britain’s Board of Trade, the primary agency administering relationships between Britain and its colonies. And he spent considerable time abroad.

Locke’s influence on founding-era political thought was based principally on two works: his “Letter Concerning Toleration,” which addressed freedom of religion, and his “Second Treatise on Government,” an examination of human rights and the origins and powers of governments.

Locke’s Letter Concerning Toleration

James Wilson was one of the Constitution’s framers and a leading ratifier. In a lecture at what’s now the University of Pennsylvania, Wilson acknowledged the impact of Locke’s “Letter Concerning Toleration.”

This “Letter” was published in 1689, at a time when many believed government should suppress disfavored religions and sects. But Locke argued that government should tolerate all beliefs with only two exceptions: Catholicism, because the Pope was a foreign sovereign; and atheism, because atheists felt no responsibility to God.

The Constitution, as supplemented by the First Amendment, carried Locke’s view even further than Locke had. It recognized choice of religion as a right, not merely as a condition to be tolerated. It also granted full equality to Catholics.

The Constitution did reflect some of Locke’s skepticism toward atheism (a fact of which modern Supreme Court jurisprudence is unaware). It required state and federal officeholders to take an oath or affirmation, which by the law of the time required belief in God. This disqualified atheists from political office, although the Free Speech provision of the First Amendment protected their right to express their views.

Locke’s 2nd Treatise on Government

I have outlined Locke’s political theory in my book, “The Original Constitution.” For present purposes, its most relevant precepts are:

• God gives every person certain rights or powers (in the 17th and 18th centuries, “right” and “power” often were synonymous), which may be exercised at adulthood.
• Heads of families grant some of these rights/powers to government so it may protect those that are reserved.
• Government must exercise its rights/powers as a trustee, fairly and for the benefit of all. (Those who read earlier essays in this series may recognize the debt to Aristotle and Cicero.)
• As a rule, neither government nor individuals may infringe on the rights of others without their consent.
• Yet infringement sometimes occurs. This may be because of wrongdoing, a clash of individual rights, or the needs of government in performing its functions.
• When infringement occurs, those who benefit from the infringement must compensate the injured person for his loss.

The last three on the list not only influenced our Constitution, but have also been imported extensively into the American civil law of contracts and other interpersonal relationships (pdf).

Lockean Constitutional Sections

Locke’s treatise contained many more specific observations, some of which were realized in the Constitution. The Preamble reflects his view that the people at large create and consent to the new government. Locke’s “public trust” concepts are embodied in provisions throughout the document (pdf). The presidential veto complies with his recommendation that the executive enjoy a share in the legislative power. The authority of the president to make treaties and conduct foreign affairs are examples of Locke’s “federative power,” which he associates with the executive. The Fifth Amendment requires compensation when the federal government seizes property. I already have mentioned how Locke’s views foreshadowed the Constitution’s treatment of atheists.

The Constitution’s most obvious Lockean provision is the Ninth Amendment. It isn’t, as often claimed, a repository of specific unenumerated rights. Rather, it was designed to clarify Locke’s rule that any power not given is reserved. My prior Epoch Times essay on the Ninth Amendment describes its role in more detail.

Locke in the Constitutional Debates

During the founding era, Locke’s precepts were very widely known and accepted. There was little need to describe them to others. Luther Martin of Maryland lectured his colleagues at the Constitutional Convention about Locke’s views, but that only increased Martin’s reputation as a pompous pedant.

During the ratification debates, the Constitution’s advocates (“Federalists”) and opponents (“Antifederalists”) argued about whether the Constitution met Locke’s standards. Wilson, the Constitution’s principal promoter at the Pennsylvania ratifying convention, asserted that Locke anticipated the Constitution’s division of sovereignty between state and federal governments. Wilson’s ally, Thomas McKean, claimed that the lack of a bill of rights was consistent with Locke’s views. Their adversary William Finley maintained that Locke would have disapproved of the decision to supersede the state constitutions by adopting a new federal one.

At the Virginia ratifying convention, Patrick Henry contended fiercely against ratification. Edmund Pendleton—the convention chairman and the state’s leading lawyer—responded that Henry’s views violated Locke’s support for effective government.

Outside the state conventions. Benjamin Rush of Pennsylvania, a noted physician and a Federalist, corresponded with David Ramsey of South Carolina, a historian and fellow physician. Rush told Ramsey that the Constitution would impose the rule of law, something Locke favored. A New York supporter of the Constitution calling himself “A Country Federalist” echoed this argument in a newspaper op-ed.

A Pennsylvania Federalist writing as “Margery” praised the document as worthy of Locke. William Cushing of Massachusetts noted that the Constitution, consistently with Locke’s views, erected a representative form of government.

Antifederalists insisted the Constitution fell short of Locke’s precepts. A Massachusetts writer calling himself “A Republican Federalist” said the Constitutional Convention had usurped authority, according to Locke’s definition of usurpation. He also argued that it was improper to give slaves a three-fifths representation in the House of Representatives, because Locke had written that slaves had no civic status.

“Republicus” used Locke to assail the Constitution for prescribing a bicameral instead of a unicameral Congress. (I have not been able to find evidence that Locke actually favored unicameralism.) Several of the Constitution’s opponents relied on Locke while criticizing the initial absence of a Bill of Rights.

Is Locke Overrated?

Despite Locke’s many appearances in founding-era discourse, some authors have tried to minimize his impact. From the left, Garry Wills, writing in the first edition of an otherwise excellent book, maintained that certain Scottish Enlightenment philosophers were greater influences on Thomas Jefferson and the Declaration of Independence than Locke. However, Wills later acknowledged his mistake.

From the right, Yoram Hazony admitted the philosopher’s influence on the Declaration, but claimed the Constitution was written and ratified by anti-Locke “conservatives” such as Alexander Hamilton and George Washington. But this argument is historically inaccurate. The Constitution wasn’t the product of any particular faction, conservative or otherwise: It emerged from negotiation and compromise among a wide spectrum of Americans—a process brokered mostly by moderates such as John Dickinson, Roger Sherman, Benjamin Franklin, and Edmund Randolph. And in fact, Hamilton (pdf) and Washington (pdf) also greatly admired Locke.

In my 30 years of constitutional scholarship, I’ve identified only one Founder who seems not to have accepted Locke’s fundamental precepts: Noah Webster, a man who had no role in the Constitution’s framing and only a small role in its ratification.

Misinterpretations and Criticisms of Locke

As Forrest McDonald, the 20th century’s greatest constitutional historian, once pointed out, Locke often is “astonishingly misinterpreted.” For example, despite the rather libertarian cast of Locke’s writings, Marxists and other collectivists have claimed him as one of their own. And some conservative traditionalists underestimate the extent to which Locke’s views are consistent with different cultural traditions.

Locke often is criticized for saying that governments are created by consent. Critics respond that they more often arise from family, tradition, and conquests. However, Locke anticipated and responded to such objections. He offered examples of commonwealths that did, in fact, arise from consent. Moreover, when Locke said “men” consent to governments, he was referring to heads of households; he fully acknowledged the role of families.

More importantly, though, it really doesn’t matter whether Locke’s story about how governments arise is literally true. This is because it communicates a wider moral truth.

To explain: Most religions teach myths everyone knows aren’t literally true. These stories are told because they offer moral lessons or other insights. Similarly, our legal system employs remedies that pretend the parties entered into a trust or contract, even though they never did. The remedies are used not because they describe literal fact, but because in proper circumstances they do justice.

Indeed, we often use fictions or counter-factuals in daily life for their larger purpose: “Swing through the ball” helps a hitter understand how to hit. “Act as if you cared” presents a lesson on moral behavior. And so forth.

The value of Locke’s government creation story is that it provides moral guidance for how governments should treat citizens and how citizens should treat each other.

Read prior installments here: first, second, third, fourth, fifth, sixth, seventh, eighth,  ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.