← The Hillsdale College Online Courses Podcast
The Hillsdale College Online Courses Podcast
Constitution 101: Property, Morality, and Religion
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Foreign.
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Welcome to the Hillsdale College Online Courses podcast. I'm Jeremiah Regan.
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And I'm Juan Davalos. We're back with Constitution 101, the meaning and history of the Constitution. We're going on to lecture number five today to secure these rights, property, morality, and religion.
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That might seem kind of interesting because the Declaration talks about securing the rights to life, liberty, and the pursuit of happiness, not morality and religion. What role does. What role does the government have regarding morality?
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Well, we were talking earlier about, you hear a common phrase today, you can't legislate morality. Which is, of course, nonsense, because what else would you legislate?
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What's the purpose of legislation? I mean, legislation is don't do this or you'll get this penalty, or do this and you'll get this reward. What is morality? It's the same thing. It's do this, don't do that. If you're legislating morality, the question is, what morality are you legislating? So what do we learn in this lecture about the purpose of government?
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Well, the founders understood this very clearly. They knew that you needed to have a good and virtuous citizenry in order to have a republic. And in order to have good citizens, you need to teach them what to
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do and what not to do. There are things that are good for human beings, like raising a family and working hard and enjoying the fruits of liberty. There are things that are bad for human beings, like theft, rape, murder. You don't want to do those things, so you need to legislate against those things. That's a view. That's a moral view. That's morality. If the purpose of government is to secure rights, life, liberty and property so that people can pursue happiness, you have to legislate the things that preserve life, liberty and property. And that means things like do not steal, do not rape, do not murder. The purpose of government or the means by which government accomplishes its purpose is legislating morality. And that. That comes through very clearly in this lecture.
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Yeah. And above all, in our kind of government. Right. Because if you're going to have citizens that rule themselves, they need to have the moral guidelines to be able to govern themselves. Otherwise you have the government pushing everything on them. But you need to have the laws in order to teach people what to do and what not to do in society.
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So the laws have a normal enforcement mechanism. Don't do this, or you'll receive this penalty. But that's instructive. It tells people, well, that must be bad. I don't want to do that. And then the law doesn't have to be enforced to the same extent because people enforce it themselves. And you made a great point. There's all kinds of things that you don't want the government to have to be involved in, doling out punishments and rewards. John Adams talks about this. He says there's a multitude of human activities that the law doesn't touch, but that's left to religion and private morality to instruct them. And then you don't need a government that is invasive, that is all consuming. You have people who are generally living life the way they're supposed to. The laws support that, they educate towards it. But also laws should encourage institutions that encourage morality and piety. And so we see the government involved in things like education and religion to support the morality and the religious views that are useful for free citizenry.
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As you can see, we're nerding out on this stuff because I think this is one of the things that makes Hillsdale very unique, the understanding of the founding from this perspective, really understanding what they thought. And something that makes us very unique is also that we go and actually read what the Founders said themselves. We don't read what modern scholars say about them. We go and read the primary sources.
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And you should do the same thing.
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And you can do that by going to Hillsdale Edu course and at the top of the screen you'll see a books tab and you can get the US Constitution reader, which is a reader that we publish here at Hillsdale with all of the primary sources from the founding, some of the most important documents that they wrote, including those in which they speak about the subjects that we're talking about right now. Right.
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You don't have to take our word for it. You can go read it for yourself straight from the men who created this government and created this free republic. That's Hillsdale Edu course. Click on the Books tab and grab the Constitution reader. Now let's turn to Tom west for Lecture 5 of Constitution 101 to secure these rights, property, morality and religion.
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In this lecture I'm going to talk about the Founders understanding of economics, character and virtue and religion. The first time I spoke in this series, I talked about the basic purpose of government according to the Founders, being to secure these rights. And what that practically means is protection, protection by means of armed forces against foreign threats and violence and criminal law to protect against domestic threats and violence against fellow citizens. And those are indeed the most urgent ways government has at its disposal to protect us, to secure our rights. Today I'M going to talk about important additional tasks that government at the time of the founding undertook. The founders thought these things were not as urgent as the first two. I mentioned foreign policy and criminal law enforcement, but definitely important and necessary and really indispensable. And I'll try to explain why. The idea is that the government's policies with respect to property, with respect to character formation and with respect to religion, all of this was connected to their overall theme of security, of individual rights and the natural rights that we are all born with and deserve to keep. So I'm going to start with property. There's the founding. It was interesting that when they talked about property rights in the fundamental documents, for example, the Virginia or the Massachusetts state constitution, Pennsylvania, they always use the formulation to possess and acquire property, the right to both of those things. So if you think about it from the point of view of somebody who's poor, the right to possess property is of no use to that person. He wants to acquire some, he needs to acquire some. And it's in fact a right to, in the founding, a natural right to acquire property. Now, how do you acquire property if you don't already have it? That's potentially a source of conflict. Jefferson gave an example in one of his letters of what happens on a ship when a ship at sea in which people are starving, runs up, runs into a ship that has plenty. Do they have a right to take some of that property for themselves without the consent of the other ship? And Jefferson's you're darn right they do. It's a matter of necessity. And the natural law does not require you to die when there's no property around except something that you might have to steal from someone else. He said that. And so you have that problem. And in fact, I could even add this. All of the major rights, all of the natural rights that the founders talked about are potentially in conflict with one another. The most famous example of that is slavery. The slaves had a right to liberty and the masters had a right to life. And one of the points that again, Jefferson made when he discussed why we don't have immediate emancipation is we're afraid. He says, we have the wolf by the ears. Justice is in one scale and self preservation in the other. I mean, those are both natural rights. The right of the liberty and the right to survive, the right to life. There's only one way to deal with that, that can reconcile those conflict of rights, and that's to try to find a way, the case of slavery, to liberate the slaves in A way that's not dangerous to the existing population. And Jefferson professed himself ready for that. Some criticize him for not doing enough. But they did recognize, yes, we do have that duty. In the case of property, the same problem arises. What do you do with a population of poor people that doesn't have enough? You've got to set things up in such a way that they can acquire. And so all the founders rules and laws and customs with regard to property and economics were meant to serve that end, that twofold end of protecting existing property where it's owned already and making it possible for people who don't have any property to get some. It has to be a right to acquire property. Otherwise you'd have a duty to die if you don't have anything. And nobody in the founding would have dreamed of saying anything so ridiculous. So what do you have to do? And this is one of the things I've looking into this, I found it fascinating to learn. It's a very complicated set of things that government had to put together in order to protect those two. That twofold right to property, to acquire and possess. Right to possess, of course, most obviously is protected by the criminal law, of course, which punishes stealing and theft and so on, robbery. But also the rules for property ownership. The clarity of ownership is a fundamental purpose of government. A register of deeds is a fundamental institution of a free society. And the founders, some of the states, even put that into their state constitutions. There's going to be a register of deeds. There's going to be someplace where we can go to figure out who owns what. And so that if there's someone who's on your property, you can sue them, you can go to court, you can find, you can protect your property from intrusion or violence by the judicial system. But that only works if it's known in advance who actually owns property. It's a fact that in the world today, in many countries, there are large, vast areas of some of those countries where there is no definite ownership. People own property by custom and not by law. So it's not surveys, they're not rules, are not deeds. And property has to be protected by simply being there and preventing anyone else from occupying your property. This happens all over the place. Latin America, in Africa, for example. It's been written about by modern economists. It's a problem for a society that wants to protect property rights. You've got to start by defining property and defining ownership. I will add this too. The Founders didn't think ownership by itself was enough. There had to be widespread ownership. They were very concerned. They would have been very concerned about today's America in which you have a very small number of corporations increasingly owning a larger amount of the wealth of society. That's dangerous. They thought it was very important for wealth to be widely owned and widespread. And they thought it was important for government to encourage, through its inheritance laws as well as through the ownership laws of property in federal territories, getting that property in the hands of individual farmers, individual owners. That was a high priority for them. Now, the second set of policies that the founders instituted to protect the right to acquire especially is their policies having to do with free markets. There are three things government has to do to protect free markets, which these things they regard, again, as fundamental for a free society. First of all, the government has to protect the right to buy and sell. That right is to be, in theory, unlimited. You can sell anything to anyone, anytime, for any price. That was basically the idea. Now, there are limits, but the limits are established to protect the property of everyone. So you'll have limits. So, for example, what is a contract? Contract is defined in law, so it protects you. If you make a contract, you know what the proper format of a legal contract is, so that if someone tries to renege on the contract, you can go to court and get that contract enforced. Another element of the founder's conception of free markets was there had to be equal access to transportation and general means of communication. They had this concept called privileges of citizenship that you that appears in the US Constitution. Then it reappears in the 14th Amendment, by which they meant, among other things, the right to travel, the right to go into business in any state you like, the right to stay in an inn, on a highway that's on the work that you have to have access to in order to travel, the right to use transport that is accessible just to the general public. Ships, stagecoaches. That too is under threat today. You have, for example, a no fly list that has been established in America. You can be put on that list and there's no recourse. Government will simply tell you, we can't tell you why you're on the list, and we can't tell you how to get off the list. Founders would have said that's a privilege of citizenship to get on an airplane, to get on a public means of transportation on the same terms as anyone else. Equally, we have now increasingly corporations that are banning to some groups in society the right to use widely necessary services such as credit cards. Banks. There are now banks that are forbidding guns, dealers from having access to the banking system. The founders would have said, look, if it's a small private organization, fine. But if it's an organization like that, where you need to have access to it in order to engage in general commerce, that should be protected by law and by government as a privilege of citizenship. Now, I should add, when it comes to the free markets topic, the founders were very opposed to the idea of free markets abroad for people who didn't live in America. They thought free markets were for Americans. As for foreign commerce, they were not against it, but they thought it was very important for foreign commerce to be regulated with a view to the interests and rights of American citizens. And they had two things in mind. One of the first laws passed by congress, a tariff law, said, the purpose of this law is to promote domestic manufacturing. In other words, we know in some other countries, they can undercut us. They can manufacture things more cheaply, meaning that we won't have the ability to produce things here. That was regarded as something that was bad for American workers, bad for American corporations, and bad for national defense. How are you going to have a national defense if all of your weapons and your bullets and your guns are produced in foreign factories? In America today, many of our most important and most complicated sophisticated equipment is manufactured in other countries, Some of them in China, A country that our government often tells us is a rival or possibly even an enemy, and yet we are dependent on them for some of our defense needs. Founders would say, why are you guys doing that? Why would you do that? That's dangerous. You need to be thinking about national defense. And so the idea of free markets, that's great for at home people at home abroad, that's not such a. Such necessarily such a good thing. The third thing that government has to do in order to protect the right to acquire and possess property is to establish a system of reliable, sound money. They thought that meant gold and silver coin, period. And they weren't against banks, and they weren't against private banks issuing paper money. But they did not allow the federal government in the early days to issue paper money. That had to be done privately. And that was meant to be a way of preventing the government from then manipulating the currency and inflating it, which is what they had been doing during the American Revolution, 1776-1787. There was all kinds of inflation because state governments were issuing paper currency as well as the federal government. And it was devalued and people lost. They were unable to retain the value of that currency. Government has to do something about that too, they thought. Now we today have abandoned this older constitutional money, the gold and silver coin thing. We have managed to make it through the 20th century without the gold standard, or only a minimal application of the gold standard in most circumstances. Whether that will be true in the future, we don't know. I don't know. I can say this. The Founders would wonder why would you create a monetary system where the value of the currency is entirely created by government and not something that is independent of government manipulation?
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I'll mention one other thing about the Founders on economics, and that is of course they knew that there were sometimes going to be poor people who could not provide for themselves. There Was a Need for Welfare One of my surprises when I started studying the Founders was how important they thought it was for government to have welfare for poor people. Now, they didn't think of it the way we do. They thought welfare was something that is for citizens in dire need, people who couldn't otherwise provide for them the absolute minimum for themselves. And so they organized it in a way that prevented people from wanting to be on welfare. They provided very minimal support, typically in the form of a workhouse or a poor house where people who went there for government support had responsibilities and duties. For example, often work requirements exist in those places. And of course the Comfort level was not great. They wanted to make sure that they could provide for people who were genuinely in need without encouraging people who could have gotten jobs to make sure those people did go out and get a job on their own. Now this brings me to my second theme for today's talk, and that is morality. Government involvement with morality. Governments has to be involved with morality in the first place. The basic rules of the natural law are moral rules. Jefferson called the natural law the moral laws of our nature in a document he wrote in the 1790s. An example would be the first paragraph of the Declaration of Independence. Every nation is entitled to a separate and equal station by the laws of nature, meaning that it's immoral for one nation to try to rule another nation without its consent. Morality means don't enslave people, don't rule other nations, don't rule other people without their consent. Each person, each nation has a right to liberty. And there's a moral duty for government to protect that right with regard to its fellow citizens. But of course, we also mean by the word morality something different. We mean also a disposition of the character or the heart, a disposition to act in a particular manner. And the founders thought that too was a duty of government to be concerned with. There's a Virginia constitution, very typical statement. No free government or the blessings of liberty can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality and virtue. That's a mouthful. But what they meant was you can't have a free country unless the people are relatively decent. They didn't expect miracles. They didn't think the average Virginian was going to be a moral paragon. But they did understand government has a duty to promote some basic minimal moral expectations and requirements of people if they're going to be able to be responsible citizens of a free society. And they also had in mind not just virtues in the way that the kind of virtues that we tend to think of, for example, moderation, justice, restraining yourself, not harming other people. That's the kind of thing we think of today. But they also thought of the harder virtues, the tougher virtues, as necessary for government to promote. The manly virtues, as they call them, of courage, vigilance against potential government oppression, prudence, being hard headed about things in a way that goes against the common view. Those are things too that are important. Not that they expected everyone to have those tougher virtues, but they thought it was important for that to be encouraged among those citizens who were capable of of them. Today, we're told Government should not try to enforce morality. And their answer was, that's naive. You have to have morality. You have to have people being willing to restrain themselves and also being willing to step up and fight for freedom when it's threatened. Now, as to how government promoted morality, they thought of, I'll mention a couple of ways. One of the most obvious way is through education. Every state government, again, this is not a federal thing, but the state governments promoted and sustained education at some level. Some states had state universities. Other states, especially in the northern and middle states, emphasized primary and secondary education as something government was responsible also to promote college for the talented. But they also thought that it was important to have laws and of course, those education. It was expected that in educational institutions there would also be promotion of religion. We'll get to that in a minute. Now, in addition to these persuasive means of promoting morality, educational, there were examples of statesmen, speeches, government proclamations, all kinds of ways government would lend its weight, lend its hand, its prestige to the idea of the honorableness of moral conduct, of virtuous conduct, whether it was in war or in peace. That was considered to be an important fundamental task of government. Now, they also thought that in some cases the laws need to step in to promote or to, I should say, limit immorality. And that was especially in the case of marriage and family law. This is an area where, of course, we have a very different view today. But their view was that you can't expect sex to remain unregulated because sex produces children and children are vulnerable creatures who need help. They need sustained help over time. Their view, admittedly old fashioned, was the two best people. The two people most likely to do a good job of protecting and caring for a child are their married biological parents. And that's what they tried to promote in their family laws. Marriage sustained in a sustained way, sustaining it over time. Marriage, that's hard to break up. So they had rules, they had, divorce was permitted. But it had to be for cause, and it had to be for an important cause. It couldn't be for, well, I'm no longer in love, or well, he looked at me the wrong way, or I'm afraid it could be. It had to be really genuine. Harm had to be committed within marriage, either in the form of adultery, physical violence, or it could just be in the form of abandonment. One of the things I find most interesting about their divorce law. Some states allowed divorce for impotence, meaning if you couldn't conceive a child. They thought of that as being so important to marriage that you could break a marriage up over that and start over. I mean, that's how important they thought marriage was to children. Whereas, of course, in our time, we tend to think of marriage as something that could or could not involve children. It's optional, it's not necessary to the main meaning of the institution as we see it. They did have rules about male and female responsibilities within marriage, which of course, today are widely condemned. The male was expected to be the head of the household. Legally, was the head of the household, meaning really only really meaning that had. Was he got to make the final decision on where they would live and on how the children would be educated in terms of formal institutions. Now, in practice, of course, men and women shared the responsibility of education, of formation of character of their children. And of course, also typically we're involved in decisions like where to live people. You have to get along with your wife or your husband. So it's important to talk those things out, typically, and they normally would do that. But what was interesting also to me was that the rights and duties that came out of that were of great importance to both sexes. People today tend to assume the family, as understood in the founders, was patriarchal and oppressive because the male was the head of the household, whereas in reality the male had duties. He had the duty to support his wife and his minor children as long as necessary. He had a duty to support his wife for life. Modern marriage that doesn't exist any longer, she no longer has that right. That's all up to the courts. Depending on what the courts decide to do. And also from the point of view of the man, the right to be together with his own children and to help raise them. That's a right that's no longer available to people today because once there's a divorce, then there's a custody decision, and then that tends to be going to custody will go to one or the other of the parents, typically the mother. So that older system was set up in a way that was meant to be something that would encourage men and women to do the right thing for each other as well as their children, and to make them relatively as happy as you can be. Given the fraught nature of the relationships between men and women, which often takes place. So they did try to find a solution, you could say, to the question of how to deal with children, how to raise children, that was as good as possible for all parties involved, father, mother and children. My final topic today is the founders on religion, religious liberty. First of all, what did they mean by religious liberty. It's a topic we tend to misunderstand today. I think for them, religious liberty was never an absolute right. In the founding, you never had the right to do what you believe to be God's will if you interpreted God's will in such a way as to violate the ordinary rules of society that exist to protect life, liberty and property. So for example, if you believe that God commands child sacrifice, let's say you're trying to revive the ancient Aztec religion that was not allowed. You would be punished for that and it wouldn't matter if you went to court and said, yeah, but I'm an Aztec. Similarly, let's say in today you have places in Pakistan, for example. I was reading about a recent case where many people, it turns out, believe they have a religious duty to murder Christians if they happen to be converts who are ex Muslims. They believe that's a divine duty, it's required by God. You're going to kill those apostates. Again, the founders would say no. Religious liberty doesn't mean that means that you have to obey the ordinary criminal law now. So therefore there could never be an automatic right to an exception from a law. So if you take the Quakers, they said, well, we don't believe God wants us to fight. And George Washington wrote a letter to the Quakers in which he said, well, you don't have a right to not fight. If you're in a social compact in which you've agreed to obey the law, you might be called upon to fight. Now. Washington added, I hope we can find a way to accommodate you because you're such good citizens in other respects, you Quakers. But if it comes down to it, if it's a question of national security, you might be required to fight. That's just how it is. And I think that was the founder's view of all this, is you can have exceptions from the law, you can make exceptions, you can make allowances, but only if it's ultimately compatible with the continued order and protection of a free society. Now as for the government support of religion today, people would say government can't support religion because that violates religious liberty. There are constant cases before the Supreme Court in which there's some monument or other somewhere in which there's 10 commandments or which is a cross somewhere or something, and then there's a lawsuit and people agonize today over well, can we allow those monuments that have religious symbols on them or not? And it just goes on and on. Founders attitude about that was very simple. Government can do whatever it wants to, to support religion as long as it doesn't take away anyone's right to religious freedom. So if the government wants to create a policy of, let's say, giving money to preachers, Massachusetts had a policy like that. It can do that. That was regarded by most founders, not all, as something compatible with religious liberty. Or take another case, prayers in schools. I mean, everyone accepted the view that schools are going to promote a sort of generic version of Christianity. That became the consensus that emerged out of the founding. By the time you get to the 1830s and 40s, that was what was being done everywhere. And that lasted up to the 1960s in most states that you still had prayers in school. You had some discussion of the Bible, some teachings, basic teachings of Christianity, emphasis being on the moral teachings. That was what they thought was appropriate for government to do. And as long as the government wasn't harming or punishing or doing anything against non believers, that was acceptable in their view, that was not a violation of the religious liberty of anyone. Now, as for the reasoning behind that, they never used arguments based on Christianity or religion when they tried to defend government support of religion. They always talked about it in terms of it's good for the security of rights, it's good for protection of rights. So a famous quote from Washington in his farewell address, Reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle. In other words, no religion, no morality, and therefore government has an interest and a duty to support religion. He argued that even an atheist, he called it a mere politician. Even an atheist, he said, has an interest in religion for the sake of protecting property rights in court. How do you get people to believe their oaths in court if they don't believe in God? Well, these are some of the things that the founders understood arguably better than we do today. My hope is we can take the best of what the founders were able to discover and use it to think through how we can maybe make some improvements in today's world. Not that we're going to revive the founding, but we can certainly think about our current problems in light of some of the things they came up with to make things better and to enable people to live together as citizens of a free society. Thank you.
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