Friday, March 8, 2013 – Essay #15 – The Farmer Refuted by Alexander Hamilton – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School
With the certitude of wisdom and the patronizing tone one might recall from one’s own youth, the precocious young Alexander Hamilton offers to teach the Loyalist Samuel Seabury the true meaning of the rights of man. The pointed words used and Hamilton’s sarcastic references to the “Farmer’s” ignorance of the God-given nature of those rights are put in even greater relief when one is reminded that Seabury was one of a long line of bishops, rectors, and professors in the American Episcopal Church and extremely influential in the development of the American church’s doctrine after the Revolution. “If you will follow my advice, there still may be hopes of your reformation,” takes on more layers of meaning, when addressed to a Protestant clergyman. Since Seabury’s authorship was not definitively established until a few years after publication, it is possible that Hamilton did not realize the identity of his antagonist, and his tone and substance are ironic coincidence, rather than intelligent design.
In any case, “Farmer” and “Sincere Friend” had exchanged earlier rhetorical volleys, and this “more comprehensive and impartial view” (as Hamilton styled it) appears to be the final one. There are two basic themes, the nature of rights and the people’s right of revolution. There really is little original thought in the essay, although it shows Hamilton’s education in both classic ideas and—for then—rather more contemporary interpretations. He even provides a “helpful” syllabus of writers on natural law (Burlamaqui, for example, was the progenitor of the “pursuit of happiness” as a natural right, a concept Jefferson wrote into the Declaration of Independence).
Hamilton rejects the Hobbesian view of the state of nature as a struggle for existence, where self-preservation is the first law of nature, and doing whatever it takes to preserve one’s life is its first right. For Hobbes, law and morality were artifices created by secular government to impose order and to establish a peace that allowed humans to escape the state of nature’s nihilism. There was no good law or bad, except as it secured that peace, or failed to do so. In like vein, vice and virtue were not inherently so and were not derived from an external source, God. They were mere utilitarian contrivances, based on fleeting collective opinion.
Enlightenment sensibility found a much more congenial version of the state of nature and the basis of government in Locke and the other writers Hamilton cites. Hamilton equates Seabury’s position with Hobbes’s. In another astounding accusation, he suggests that their fundamental error is grounded in an atheistic rejection of a belief in God. Hamilton’s claim about the universal nature of human rights as coextensive with a God-created natural law order reflects a long intellectual heritage going back two millenia at least to the Stoics, if not to the Platonic reaction against pre-Socratic and Sophist skepticism whose views about law and morality were similar to those expressed by Hobbes and, it must be mentioned, to those that dominate academic discourse today.
This “eternal and immutable law” is “obligatory upon all mankind” and pre-exists any human institution. It recognizes each person’s absolute right to “life, limb, property, and liberty.” No one has the right to exact obedience from another or to command him. In very libertarian reasoning, Hamilton claims that all government must be based on voluntary consent. To assume power over others, or to take more than has been given, violates that law of nature. This mode of argumentation was so common, and by its repetition became so ingrained in American thinking, that it appeared in different settings by various writers and orators unconnected to each other. The same reasoning eventually coalesces as the “self-evident truths” listed in the Declaration of Independence.
Hamilton’s appeal to this universal law that, quoting Blackstone, is “binding over all the globe, in all countries, and at all times,” eliminates the vexing task that American writers of a few years before had set themselves of trying to define exactly what were the “ancient rights of Englishmen” that they accused Parliament of violating. Hence, there is no need to refer to elements common in colonial charters or to other documents of the English constitution: “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself.”
Having established the universality and divine origin of the human right to liberty, Hamilton must still confront the ticklish proposition of disobedience. Only law that is based on consent of the governed, that is consistent with the essence of human nature and the purpose of political society, and that furthers the right to liberty can demand obedience. Those laws that fail this test are null and void. While it might be best to proceed through regular channels of government, “Extraordinary emergencies, require extraordinary expedients….When the first principles of civil society are violated, and the rights of a whole people are invaded, the common forms of municipal law are not to be regarded.”
This endorsement of the establishment of the “revolutionary” First Continental Congress recognizes a right to disobedience when the fundamental purpose of political society is threatened by those who claim the governing authority. It embodies a forthright acceptance of a right of revolution, though its precise contours still remain unclear, hidden in the smoke of fiery rhetoric and bald assertions. It is also an appeal to utility, with the means determined by the need. “Necessity makes its own law,” it has often been held. Hamilton later would use similar reasoning, along with the ultimate legitimization by popular consent, to urge the Second Continental Congress to abrogate the Articles of Confederation, to justify his report at the Annapolis Convention calling for a convention of states to alter the Articles, and, finally, (along with Madison) to reply to the critics of the Philadelphia Convention who, as Seabury did here, challenged the authority of that body to act contrary to the structure of the existing constitutional order.
Today, government at all levels intrudes into our lives in matters great and mundane, from attempting to restrict through vexatious gun ownership regulations our fundamental right to self-defense or through burdensome labor, environmental, and other regulatory laws our freedom to use our property for productive purposes, to paternalistic prohibitions on certain sized soft drinks and requirements for health insurance. Moreover, government does so primarily through hordes of unelected bureaucrats whose discretion is guided only through the most general of legislative boundaries and the occasional court decision that is then promptly ignored. In addition, there is a tax system that removes increasing numbers of people from having “skin in the game,” but that also taxes those who remain in the system at a level that would have been astounding in the past. Finally, many are increasingly accustomed to dependency on government assistance or sinecure, the very antithesis of a free and self-reliant people.
The great challenge for us, then, is to confront whether the current system is consistent with the vision of the Americans of the Revolutionary War era, and whether the scope and substance of the torrent of laws and regulations can be reconciled with the first principles on which government is based. Still more daunting is the question of what might be done to correct the course if it turns out, as many fear, that the current system is—to be very generous—as oppressive and alien to our traditions and liberty as King George and Parliament were to Hamilton and his contemporaries. Are the Declaration’s “self-evident truths” still such?
Read The Farmer Refuted by Alexander Hamilton here: http://www.constitutingamerica.org/blog/?p=3506
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.