For the better part of a year now, one of my regular listens has been a podcast concerned with the U.S. legal scene, Law & Chaos. I don’t have background of any depth in the subject — would not, chances are, be drawn to the material were it not for events of great consequence unfolding at rapid pace for Americans in this arena now.
I do have depth of experience, I guess it’s fair to say, in American religion — not a subject unrelated to that of law, by any means! One’s grasp of either might be improved by attention to the other. (One’s grasping is one thing and one’s comporting oneself responsibly in respect to things grasped quite another, should that need saying.)
In both their episodes in the past week, the Law & Chaos hosts devote a little space to commentary on U.S. Supreme Court justice Neil Gorsuch’s recent book-touring. Their attitude is scorn — and justly so. They miss the mark somewhat, though, in my judgment, in accounting for his fault. That is, they object to Fox News-guest Gorsuch from a stance that I think overstates the U.S. founding documents’ rejection of religion and religious principle in the republic’s formation.
Links to the week’s Law & Chaos episodes are below. (The longer Gorsuch diatribe is at minute 9 in the first, Tuesday’s.)
What I really want to showcase in this post, though, is an episode of another show I’m getting a good deal out of these days, Moira Donegan and Adrian Daub’s In Bed with the Right — an episode that happens to converge this week with Law & Chaos’s on interest in Jefferson’s language in the Declaration’s opening lines, but which situates it helpfully in a greater (not to say comprehensive) story of statement and counter-statement across centuries and cultures, and which captures something of the ambivalence and unresolvedness — in fact, confusion — to be heard in the American founding voice.
An excerpt from Daub and Donegan’s conversation (with no mention of Gorsuch; he does make brief appearance a few minutes further on, though):
AD:If we think about something like Jefferson’s ‘endowed by their Creator with certain inalienable [sic] rights,’ I don’t think that’s from Hobbes, that’s from Locke.
MD:Yes.
AD:And Locke sort of takes Hobbes and reinvests the ‘natural’ with content, right? With something non-instrumental. Hobbes says that it’s in our nature to seek commonwealth only because our nature is shit — our whole thing is dogshit, and we have to sort of flock together and, like, stop killing each other ’cause, otherwise, life is short. And Locke is sort of starting to say, well, no, there are things that are true of human beings that you can base a political order on that we can deduce, that have content.
That’s I think what people mean when they say that the ‘creator’ in the phrase ‘endowed by their Creator‘ is actually load-bearing — like, which is something that I think those of us who are kind of more secular kind of tend to scoff at —
MD:Yeah —
AD:— that’s what I’m guessing they have to hang their hat on. They have to say, ‘Look, it is not a Hobbesian document, he’s not saying the only way to survive in the Americas is to all band together so fuckin’ let’s do it, he’s saying We are endowed by our Creator,’ which says there is a human nature beyond our animality that we are basing our covenant on.
MD:Yeah, it’s a higher aspiration than mere survival, it’s a —
AD:Yeah. But also drawing on a higher resource, if that makes sense, right?
MD:Yes. A higher authority, right? He’s justifying his at the time seemingly kind of suicidal defiance of monarchical authority with this recourse to something that is greater than and preceding the, the king, right?
AD:Yeah. Yeah.
MD:It aspires to compliance with a higher law, and it aspires to a better kind of life. That’s why it’s a beautiful document to read!
AD:Yeah. Yeah. And, at the same time, I do think — and, again, I’m ambling into, like, decades of debate here — it’s clear that Locke doesn’t base that content religiously. So, like, it’s also — we’re kind of right back where we started — it’s also possible to sort of anchor these rights in, you know, just the observation of humans, for instance, or in our capacity for reason, etcetera etcetera, right? So like it’s, it’s not clear that this has to be religious, right? There is this kind of Schmittian kind of secularization thesis, sometimes, in these, where it’s like, ‘Oh it’s all theology that’s just getting secularized.’ Like well, no, not necessarily.
MD:Right.
AD:Right, like — there’s new content being found here, and I think Locke is explicit in that that’s his project. And so the language of natural ‘law’ or natural ‘rights’ is everywhere around the American revolution, around all the revolutions, right? Thomas Paine writes about it. If you even think about, like, what’s supposedly discoverable by common sense, it is that kind of stuff, right?
And so this is something that has always had a kind of purchase on American public discourse; at the same time, it’s very noticeable that, like, none of them seem to draw on supposedly ‘natural’ things, as in, like, the kind of things that we would get after a Darwinian turn, where we get to like, ‘Well, as animals we have to be like this,’ or you know like, ‘Evolution teaches us that — blah blah blah blah blah.’ Right, like, even, ironically, people who hate Darwin sort of become Darwinians in arguing for natural law. That’s how we get sort of evo-psych stuff, where it’s like, ‘Well you see, it’s just a natural law that I enjoy,’ you know, ‘narrower hips and wider bosoms.’
MD:‘Women evolved to pick up after me, actually.’ Yeah —
AD:Yeah. Right, that sort of stuff, it’s a perversion, really, of that impulse. But importantly, it draws on the fact that the United States, really, in its founding has this very strong connection to natural law. In that essay that I mentioned in the beginning by Christine Pierce, she points out that, like, there’s the obvious question, when we talk about natural law reasoning: What do we mean by Nature? And, I’m hopefully not distorting her argument here, I think she says, like, there’s an even more basic question, and even more tricky, namely: What do we mean by appealing to nature?