Much has been written, published and broadcast about a Divided America—especially now, with the Dobbs decision overturning Roe v. Wade.
Political divisions, often bitter, however, have existed since the Founding. But how can we know whether the so-called Divided America is something new, something traditional that has become more noticeable due to the ease of spreading information, or maybe a combination of the two?
Join us for a special webinar presentation from Dr. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University.
Dr. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Hello. I’m Dean Reuter, Senior Vice President and General Counsel at The Federalist Society. I’m very pleased to welcome you to a special Federalist Society Teleforum Webinar celebrating the Fourth of July -- marking the Fourth of July. As today, we discuss “Are we Still One People? Do We Hold These Truths?”
This is a bit unusual in terms of format for us today in that we’ll have just one speaker. He’s going to be a bit provocative. So I’m going to hold his feet to the fire at the end of his presentation with some difficult questions. We’ll also see an email address at the end of his presentation at which you can ask your questions of him. So please make those questions rather than extensive comments. You can also use the comment section in the chat on our YouTube channel here.
But I’m very pleased to welcome our solo guest today. He’s Professor John Baker. He’s Professor Emeritus at LSU Law Center. And for two years, from 2012 to 2014, he was a visiting fellow at Oriel College at Oxford University. After which he was the visiting professor at Georgetown Law’s Center for the Constitution. We’re very pleased, with that brief introduction, to welcome Professor John Baker.
Dr. John S. Baker: Thank you Dean for making the introduction short and for providing that trigger warning that some people may need.
Much has been written, published, and broadcast about a divided America. Even more so since the overruling of Roe v. Wade and the Casey case, and the Dobbs case just recently. Political divisions, often bitter, however have existed since the founding. Madison, writing under the name Publius, “And the federalists taught us that with liberty comes conflict among different factions -- political, economic, personal factions.” The danger, said Madison, was having one faction. That means one special interest controlling the federal government. The solution, said Madison maybe counter intuitively, was that was it better then to have many factions than just one or two factions.
In the United States so far, we have developed many factions as a result of our very prosperous economy. By deliberate design, our Constitution is not a simple democracy. As Madison explained, “A complex constitutional structure is necessary to prevent tyranny.” Thus, ours is a representative republic that is partly democratic, partly federal with separation of powers checking other powers and a Bill of Rights. So are we simply experiencing the inevitable conflict and certain amount of division among factions or are we into something new? Or maybe a combination of both. That’s what we want to talk about or delve into in today’s program.
So the approach I’m taking is to divide the program in three. First, one people united by certain truths. Basically, the founding. Secondly, the progressive erosion of fundamental truths which occurs really after the Civil War. And finally, is the division one that is precipitated by American Universities? And is the choice between holding certain truths and evolving values?
So one people united by certain truths. Well, we know that language in part from the declaration. But we also want to look at the Constitution here. So the introductory paragraph of the declaration is often skipped over. People tend to start with the second paragraph. But the introductory paragraph really tells us what the declaration is about. That is, it mentions that we are “One people.” “It becomes necessary,” the question, “for one people to dissolve the political bands which have connected them with another.” It begins with “One people,” and it ends with declaring that we are one people separated. That’s the overall purpose of the declaration. Within that, there’s a lot more information, some of which we’ll cover -- not all of it.
And notice that, in this first paragraph, talk about the separate and equal station to which the laws of nature -- what are they talking about? Laws of nature. Well, laws of nature were well understood in some sense back then, but they talked about it a great deal. There was a combination, it appears to be, between those who were referring to the past in terms of classical and medieval understandings of natural law and those who were talking about what we’ve come to call natural rights theory. But for many of them, the two just kind of blended together although they had clearly separate emphasis. It’s more in modern times that we’ve been able to discern and debate and discuss the real differences between those schools of thought. But that’s not what the founders did. They were not philosophers. Yes, they were philosophic men, but there’s a difference. They were well educated, and they knew the basics of fundamental political theory and thought. So they’re going to go on and say, “Of nature is God.”
Now, most were believing Protestants but not all. Besides some Jews and a few Catholics, there were also Deists. Now, Deists could certainly agree on the laws on nature, but also importantly, they tended to think that there was a higher power at least -- whether or not they believed in the Judeo-Christian God, that’s one thing. But they realized they didn’t create themselves. And that’s going to be important later on.
So they go on then to talk about the causes. So before they do, at the end of which, there is the final paragraph, the declaration, of which I’m, in this paragraph, only going to read a little bit, “That these colonies are and of right ought to be independent states.” That’s the purpose. That’s the end. That’s the declaration. That’s what it is. Okay. But the final part is important when we contrast it to some of the people in public office today. “And for the support of this declaration, with a firm reliance on the protection of divine provenance.” They were generally believers as I said. “We mutually pledge to each other.” There’s a bond. “Our lives.” They weren’t kidding. They lose this thing; they’re all going to get executed. “Our fortunes.” Many of them were wealthy leaders, well-educated and wealthy. These were people who had a lot to lose including their sacred honor. Something that is not much discussed today.
Well, the second paragraph is the one that usually people jump to immediately as if it was totally new. And yet, as Jefferson himself said, “It’s not. We hold these truths.” But think about it, “truths.” How often today does anyone use the word truth? It’s more likely to be “values.” Well, what are values? Values are a terminology that comes from value neutral science. Which is a way of saying, “Science is real and factual. Values are totally subjective.” But wait a minute. The founders did not pledge their lives, their fortunes, and their sacred honor for values that they just happened to share. They actually believed in certain truths, and they were willing to die for it. That is a fundamental difference between the founding and today.
So here’s what I said about Jefferson. In response, by way of letter to a Mr. Lee, he says, “The object of the Declaration of Independence is not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject; terms so plain and firm, as to command their ascent.” In other words, this was generally agreed on at least among the patriots. “And to justify ourselves in the independence stand we were compelled to take neither aiming at originality of principle or sentiment, nor yet copied from any particular previous writing.” Some will say he copied this simply from Locke. But we’ll see he mentions Locke, but it’s not all Locke. “All its authority rests then on harmonizing the sentiments of the day, whether expressed, in conversations in letters, printed essays or in the elementary books of public right.” And what are those? “Aristotle, Cicero, Locke, Sydney, etc.” In other words, there was a common store of knowledge that was behind this, and it wasn’t, in the second paragraph, novel at that point.
Well, then why do we put such emphasis? It’s because later, Lincoln will put such emphasis on that second paragraph, the preamble, “We hold these truths.” So truths are that which is assumed by the founders. It’s assumed by Lincoln. But Lincoln’s emphasizing it because the slave holding states don’t assume that. And these truths are self-evident. In other words, they don’t have to be proved by data. And there are those who say that the Constitution was a slave document. Well, Frederick Douglass is going to dispute that. And we’ll look at what he has to say in a minute. My point right now is to say, “We the people,” that is to say, this is “We the people,” again. We are one people; we declare in the declaration. And now again, “We the people of the United States in order to form a more perfect union.” Now, there are those who have disputed this at various times, but to what extent?
So at the time of the Constitution, Anti-Federalists opposed the Constitution. And on the “we the people” issue, Patrick Henry objected, “How dare you? What right do you have to say, ‘We the people of the United States?’ You should’ve said, ‘We the states.’” Well, that’s the difference between a confederation. “We the states,” as opposed to a confederal republic. “We the people,” in the individual states. “We the people,” in the United States. And still then, United States was considered plural. But the Federalists and the Anti-Federalists had basic agreement. On what? Federalism and separation of powers. Basic, not on the details, but on basic. They understood that both were necessary to prevent a unitary government. What’s a unitary government? It’s one where all power is in the center.
So there was the expectation that, through compromise over time, slavery would die. Listen to what Professor Randy Barnett had to say in his book, Our Republican Constitution. And what Randy is saying here is not novel or new. It is generally understood by those who understand the history of the time. At the founding, there was a national consensus that slavery was unjust and in conflict with the principles of the declaration though dissenters surely existed. Even slave holders, especially Virginians like Washington, Madison, Jefferson, agreed. But they could rationalize a gradualist approach to ending the institution by telling themselves that slavery was economically inefficient and that eventually it would die out.
Well, that may have been true at that point, but technology intervenes. And that is the Industrial Revolution comes to America from England. And one of the things that changed the situation regarding slavery, Whitney’s cotton gin 1793-94. It adopts a machine process for picking cotton. That makes it much more efficient. And then the driver of the Industrial Revolution is the steam engine. And when applied to a steamboat by Fulton in 1807, what do we get? We get the driving of commerce in the Industrial Revolution. The steamboat changes not only commerce per se but also farming and food distribution. All of the sudden, slave-based farming becomes very profitable.
Now, into this situation eventually arises two great leaders, two great orators. Abraham Lincoln and Frederick Douglass. Lincoln gave many famous speeches, but the one he gave in 1858 on the house divided itself -- house divided is a very important one because it is what first causes him to lose the senatorial race in Illinois but catapults him to becoming president two years later. “A house divided against itself cannot stand,” a line from scripture. “I believe this government cannot endure permanently half slave and half free. I do not expect the union to be dissolved -- I do not expect the house to fall -- but I do expect it will cease to be divided.” Well, if ever there was a divided America, it was at that time. There’s no doubt about it. It would become all one thing or all the other. “Either the opponents of slavery will arrest their further spread of it and place it where the public mind shall rest in the belief that it is in course of ultimate extinction.”
Up to this point, what was happening was that the Senate was keeping the number of slave states and the number of free states equal so that neither side could win. But it was the slave states that kept pushing slavery further and further. The question is, could it have gradually become extinct? And it’s very doubtful that it could be, certainly after the Dred Scott decision. “Or its advocates shall push it forward till it shall become alike lawful in all the states, old as well as new -- north as well as south.” That was the issue.
Now from that, the Garrisonians, as I said, they wanted to secede. But ultimately, we know the south did secede in 1860. But the question has still been from that day, is the United States Constitution pro-slavery or anti-slavery? Well, Frederick Douglass who, along with Lincoln, were the two of the greatest orators of the time -- both self-educated. That is, Lincoln had one year of formal schooling. All the rest he did on his own basically. Douglass learned to read from his slave master’s wife, but then he read on his own. And the first book Douglass read, and Lincoln was reading it at the same time, it’s called The Columbian Orator. That’s where Douglass learned his great skill with language.
In any event, he says in this speech in 1860, in fact, in Scotland -- he’s answering a Garrisonian who’s arguing for secession by the north from the south -- whether the United States Constitution is pro-slavery or anti-slavery, “I, on the other hand, deny that the Constitution guarantees the right to hold property in man.” Wait a minute. What about the fugitive slave clause? Well, there’s no clause that says fugitive slave on it. Moreover, as he goes on to explain, none of the words used in that clause could possibly fit a slave because it talks about contract. Well, there were other people, non-slaves, who were bound to a term of service, and they were affected by this language. “But it has been said that Negros are not included within the benefits sought under the declaration. This is said by the slave holders in America -- it is said by the city hall orator,” that he was debating, “But it is not said by the Constitution itself. The language ‘we the people’; not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine and wheelbarrows, but we the people.” That was deliberate in the constitutional convention. Critics say, “Well, they were trying to hide the issue of slavery.” No. They expected slavery to wither out as I’ve already read from Professor Barnett. So they didn’t want the whole language about slavery besmirching the Constitution. That was the purpose. And those, in particular Governor Morris, who had the last writing draft of the Constitution was very careful to avoid the whole idea that there was any endorsement of slavery.
And that brings us to the second part of the program where I want to talk about the progressive erosion of fundamental truths. I’m using the word progressive in two senses. There’s always change around us. I mean, people grow up, they get older, they die. Families change. Circumstances change and technology changes. But here, we’re talking about gradual and sometimes disruptive change. That is, these are changes that are visible but often not related, at least as far as we know, to another sense in which I’m using the word progressive. And that refers to theorists of progress. So that’s what we’re going to distinguish and pull together as we go along.
The first point that I’m making under here is the progress of democracy and equality. Now I realize that people often pit democracy and liberty for good reason. But it’s a little bit more complicated than that according to Alexis de Tocqueville writing in Democracy in America. He is well known as an outside observer who seemed to get an awful lot right about the United States not only as it existed in the 1830s when he was traveling here and then writing but much of it’s still very applicable today. So Justice Scalia always recommended that after reading the Federalist Papers, the next thing that everyone should read is Democracy in America.
So I want to read how it actually begins. These are the beginning words, “Among the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of condition among the people.” Now that’s very interesting because he’s come from France where it has gone through the French Revolution -- a very different type of revolution, as we’ll discuss later, than that in the United States. And yet, there’s equality here. But there’s also liberty here. And this is a main theme of what he talks about as he goes through not only here but later on.
So why is it that equality is so central to democracy? Now this is not government enforced equality, this is equality of condition as he says, “Equality suggests to the human mind several ideas that would not have originated from any other source, and it modifies almost all those previously entertained.” So he takes an idea previously entertained, “The idea of human perfectibility.” As he goes on to say in the next paragraph, “The idea of perfectibility is as old as the world; equality did not give birth to it but has imparted to it a new character.” But perfectibility has two different directions it could go. First, really is the direction of the declaration where, as far as the future goes, and perfectibility is about the pursuit of happiness but it’s not just the pursuit of happiness.
First of all, as it is related that happiness is never fully achieved on earth. So again, quoting from the declaration, “The truths that are self-evident.” What are they? “That all men are created equal.” They’re created. “That they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” There’s no guarantee of achievement of happiness. So what’s the difference, I said we would talk about, between created equal versus equality?
Again, from de Tocqueville, “I think the democratic communities have a natural taste for freedom. Left to themselves, they will seek it, cherish it, and view any privation of it with regret. But for equality, their passion is ardent,” meaning it’s a stronger passion, “insatiable, incessant, and invincible. They call for equality and freedom, and if they cannot obtain it, they still call for equality in slavery.” I think his description here, which is generally based on his understanding of the United States and the French at that time -- that understanding, especially the part about equality in slavery, would seem to be much more applicable to France than certainly, at the time, it was applicable to the United States. But, to the extent that views of the French Revolution have infected the United States, it may be those who are willing to advocate forms of socialism, which to work, have to end up with some form of slavery or dictatorial regime because they don’t operate within the regime of the Constitution.
So, in 1848, there were socialist revolutions across Europe. They were clearly influenced by the French Revolution and indeed one of the revolutions was in France. But they were all unsuccessful. Now, same time Marx was writing as well. But de Tocqueville, in a later work, you can see that he is reflecting more on his understanding of equality because now he’s talking about socialism when he didn’t use that term earlier in Democracy in America. So democracy and socialism have nothing in common but one word -- equality. But notice the difference. While democracy seeks equality in liberty, socialism seeks equality in restraint and servitude.
Elsewhere, in Democracy in America, it was de Tocqueville describing the inherent equality among people in the United States in terms of their condition. And it is not that it was forced on them. There were certain legal changes that were important that were made that freed up people from some of the leftovers of the Middle Ages and opened up property and commerce very importantly to many people. That had its impact. More about that as we go along. But that impact was not forced on anybody. It was an opportunity made open to many if not all.
Second, the influence of the European progressive theorists. That’s what I wanted to talk about. Now, look, these are things that you might have some knowledge, you might have no knowledge of. But we’re just going to go through it briefly, so that you understand what’s behind certain movements. So first, we’ll talk about the influence of the French Revolution mentioned already. Germany. Germany is very important and doesn’t get as much attention. And just by way of example, the philosopher Hegel was an idealist who believed that history necessarily leads to perfect freedom. Karl Marx is much more cynical. It’s scientific materialism involving, “Class struggle that leads,” he says, “to a classless society.” The point of both is that history moves on its own -- that it's deterministic. It’s not a matter of human freedom -- human will. This is inconsistent with the Christian understanding that undergird the founding. That is that both God directs history, but human beings cooperate and have free will in modifying or somehow directing history.
All of this is very important, and it feeds into the next subject, social Darwinism. Social Darwinism may be a little easier to understand. But let’s go into a little bit more detail to see why these things are of practical use. That is, why should any of us today, practical Americans as most of us are, care about any of this background? Again, de Tocqueville in Democracy in America, “I think that in no country in the civilized world is less attention paid to philosophy than in the United States. The Americans have no philosophical school of their own.” Well, we didn’t until pragmatism at Harvard. But one calling that a philosophy is really stretching the understanding of philosophy. “And they care but little for all the schools in which Europe is divided.” I emphasize that because that changes after the Civil War. “The very names of which are scarcely known to them. Yet it is easy to perceive that almost all of the inhabitants of the United States conduct their understanding in the same manner and govern it by the same rules; that is to say, that without ever having taken the trouble to define the rules of a philosophic method, they are in possession of one, common to the whole people.” That’s amazing.
In other words, putting to one side slavery which was finally defeated, basically people in the United States, without being ordered to do so, without being told by any philosopher what to do, had come to a certain way of living. Now, we don’t have time to go through all of what de Tocqueville is talking about. But in doing so, he goes through the impact of religion, the impact of courts, of juries, and all the different institutions that were planted in the United States from the old world and not ripped up the way institutions in France were. So there was a certain way of living that was eased and modified by the colonial experience, but essentially, there is a common way of life at that time.
Now again, going more specifically about how American and the French Revolutions differ, colonists already had a great deal of liberty. That was not true in France before the revolution. Certain classes had liberty but not the ordinary citizen. Equality led to many being involved in commerce. That’s in the US. Commerce has always been disfavored in France. It’s still the case. The World Bank issued a report some years ago that said that much of the world was economically backward because under the influence of the French civil code. In the United States, there’s great religious diversity in the colonies. In France, you had the Catholic Church as the established church. So in the revolution in France, it was not only a revolution against the monarchy it was also a revolution against the state Catholic Church.
Now in the US, there was the influence of the Enlightenment -- no doubt about it. But there was also the religious element that tempered that. And a person like John Adams who was an eager follower of both -- a devoted Christian and a devoted man of the Enlightenment -- there was a balance. But in France, the divisions were mostly between the secularists and those who were devoted to religion more so.
The French Declaration of Rights of Man. This is not the American Bill of Rights. Liberty, equality, fraternity. We talked about liberty and equality already from de Tocqueville. Fraternity. What does that mean? Well, often in France and in Europe, they talk about solidarity -- fraternity. That goes back to the notion that -- of Aristotle -- that friendship is what characterizes a political body. What the French often -- and other Europeans -- often criticize about the United States is “excessive individualism.” But as de Tocqueville had pointed out many times, it is the individualism of the United States that actually gives rise to egalitarianism. So rather than being forced down by political theory, it is the individualistic approach and that can be in conflict with fraternity or solidarity.
In any event, the declaration was much the work, if only derivatively, of French philosophy. Madison and Hamilton opposed a Bill of Rights. But you’re going to say, “Well, Madison is the author of the Bill of Rights.” Yes, as part of the compromise at the Virginia Ratifying Convention, Madison agreed to introduce, and he did introduce a Bill of Rights which we now have -- we’ve had since 1789. But in Federalist 84, there’s an explanation that provides a number of reasons including the fact that bills of rights often tend to be debates about philosophy. And the American Bill of Rights are both grounded largely in history of the common law. They involve restraints on power. They don’t involve positive rights.
So in European understandings of rights, you have positive rights like a right to education, a right to wellbeing, a right to this that and the other thing. Well, somebody’s got to pay for that, and the government is the only one that’s going to pay for that. And that is what ultimately leads to socialism. So among the French philosophers who had a great deal of influence on the revolution, was Jean-Jacques Rousseau. He was one of the so-called contract theorists. That is that society was based on individuals. But in his view, democracy was governed by a general will. But those who shaped the general will were not necessarily the majority. It wasn’t the will of the majority. It’s clearly some kind of a leap that is going to create this general will. Now, this view, which I’ve just described, is generally held but not by all. And in any event, there is an understanding, whether it comes from Rousseau or not, that we will see certainly in Wilson, that democracies -- majorities really don’t know how to govern, and that we have to have experts show them and govern for them.
The French Revolution occurs in 1789 and it runs for ten years. The same year that our government actually starts, and the Bill of Rights is adopted at least in the Congress. So a significant year in which initially, many Americans support the French because they think its revolution is like our revolution. And Lafayette, who had been very important in our own revolution, is part of that revolution. But when the revolution turns to violence, to the reign of terror, to the use of guillotines, to killing its own, many pull back. Jefferson seems apparently to continue his support. In one sense, the French Revolution in its understanding of rights has been with us since the beginning, at least since 1789. But really where it comes into prominence is later, after the Second World War when the UN adopts its Declaration of Human Rights. And the chair of that committee was none other than Eleanor Roosevelt, wife of President Roosevelt. And there is much involvement or resources or devotion to the French Declaration of Rights of Man. There’s a big difference in those two approaches. The English approach, the Anglo-American approach, has been to historical rights of the common law that were basically related to the overall understanding of natural law.
And now, let’s turn to the next point about American universities modeling German universities. In 1869, the board of trustees at Harvard University appointed as president, President Charles Eliot. He would go on to serve for 40 years. He had studied in Germany and decided to adopt the German model of higher education. Now, that had a lot of consequences that we’ll talk about in the next section. And a few years later, Johns Hopkins University, founded 1876, was specifically founded on a German model of education. It was for this reason that Woodrow Wilson said he went to Johns Hopkins for graduate study. Importantly, he wrote a thesis which was later published as Congressional Government in 1885 to great acclaim. And we’re going to read quotes from Woodrow Wilson who was quite influential as a professor and then president of Princeton but most importantly as president of the United States.
Now, the third point here is social Darwinism. This may be a little bit more familiar. And this quote I’m taking is not from some creationist. It is from Scientific American, and it is praising Darwin’s influence on modern thought. So let me read this. “The truly outstanding achievement of the principle of natural selection is that it makes unnecessary the invocation of ‘final causes.’” Aristotle and the whole west up until this point had thought in terms of final causes. We talk about means and ends. It’s essential to moral reasoning.
If you look at the declaration, it is based on means, ends, or reasoning. That is to say, we are separate people. Here are the reasons that justify our taking the action of separation so that we can become an independent nation. That’s the argument. “Final causes -- that is,” the quote says, “any teleological forces.” Teleology involves looking at ends, leaning to a particular end. Wait a minute. You read not only the Federalist Papers but, if you read John Marshall’s opinion, especially in McCullough, it’s all about means and ends. Without this understanding, it is very difficult to appreciate a proper interpretation of the constitutional text because it was written according to the understanding not just of the day but for centuries. There is this divide that separates us from the founding and the divide begins after the Civil War. In fact, nothing is predetermined. You often wonder why somebody who said they were for something or against something a few years ago all of a sudden can say, “Now I have a totally different position.”
In this third and final section, entitled American Universities Holding Truths Versus Evolving Values, I’m going to cover some of the same material from the second section but try to bring them together. And really the division that I’m attempting to point to is more than a political division between right and left. No, it has to do with a division over truth. That is, truths that were reflected in the declaration on the Constitution. It involves living in truth, meaning living in reality. We all know there are circumstances -- we hear about things. We wonder, “Wow. Where’d that come from? Is that real?” Well, human nature is complex, yes. But it doesn’t mean that there’s nothing to it. There is something more than “simply values” that continually evolve. So as I said, taking the three parts of the last section, I’m going to reverse their order and start first of all with social Darwinism and then go back to the German philosophic theories that influenced American universities and finally, the French Revolution and how it may have an effect.
So again, back to de Tocqueville. He’s writing this before Darwin’s Origin of the Species. Origin of the Species was published in 1859. But de Tocqueville’s writing in the 1830s. And he says this, “The materialists are offensive to me in many respects. Their doctrines I hold to be pernicious, and I am disgusted with their arrogance.” Well what does he mean by that? “They think that they have said enough to prove that they are only brutes. They appear as proud as if they had demonstrated they were gods.” The notion that human beings are only brutes is the essence of philosophic materialism. The reaction some of you may have, “Well, America is really very materialistic. After all, we do pursue wealth and material goods often to excess.” But that doesn’t mean we’re philosophical about it. What do I mean? Well, as a moral political matter yes, materialism in terms of excessive luxury can certainly corrupt a country. That was the point that the Anti-Federalists repeatedly made.
But the more important corruption, as far as I’m concerned, is the philosophical materialism of the mind which says that there is nothing to the human person other than matter. There is no soul. Because philosophic materialists may be in fact quite austere. For example, communists and other revolutionaries deprive themselves often of many material goods in order to bring about the revolution that they so strongly desire, and think will lead to great improvement. That’s a radically different view of the human person and reality than you find at the founding in both the declaration and in the Constitution.
But de Tocqueville is taking that and giving us a better, I think, explanation of how things stood even in the 1830s a number of years after the founding. And what he’s urging is that there’s a danger in democracy when people become successful and pursue only their self-interest that they forget about education. And education is going to be the key according to Tocqueville and according to the universities that take advantage of what Tocqueville identifies. He says, “As soon as the multitude begins to take an interest in the labors of the mind, it finds out that to excel in some of them is a powerful means of acquiring fame, power, or wealth.” Now that certainly is a self-interested motivation. He’s a realist. He understands people are self-interested.
But you don’t fight against that. What you try to do is to improve the education. Presumably, those who are teaching them, they are going to give or should give a broader view. While a student’s motivation may be self-interested, those charged with the education should guide them to look beyond. And Tocqueville talks about this. He says, “I don’t think that the system of self-interest as it is professed in America is in all of its parts self-evident, but it contains a great number of truths so evident that men, if they are only educated, cannot fail to see them. Educate them at any rate for the age of implicit self-sacrifice and instinctive virtues is already flitting far away from us and that time is fast approaching when freedom, public peace, and social order itself will not be able to exist without education.”
What he’s saying is the virtues of the founding, that is the implicit self-sacrifice, is being eroded by commerce. He’s not complaining about that. What he is urging that there has to be better education so that human beings can understand that there has to be something beyond self-interest. Now, certainly when you look at the examples of Lincoln and Frederick Douglass, both of who came up from the very bottom of society, sure they may have had a great deal of self-interest, vanity, whatever driving them but that drove them to understand human nature. And without that understanding, they could never have been the great orators that they were. So it’s all about whether we look at the human person as having a body and a soul, not just a body. No one denied that slaves had bodies. They found them very useful. But certainly some, maybe many, denied the soul -- that slaves really had souls.
In this second section, I’m focusing more on President Eliot at Harvard. I mentioned him before -- the 40-year president of Harvard. He had plenty of time to really shape that institution and he did so through the lens of social Darwinism and the influence of German universities. He got the job because he wrote an article in the Atlantic in which he began, “We are fighting a wilderness, physical and moral.” He declared, “For the fight we must be trained and armed.” That is, he was arguing for a new type of education. And as a result of that article, he was offered the presidency. Now he certainly did change education at Harvard and made it much more scientific. All of that’s fine. But the underlying philosophy was something else. What do I mean by that?
As his kinsmen would later say, that is the great Professor Samuel Eliot Morison, when he wrote on the three hundredth anniversary about the history of Harvard, he excoriated his kinsmen for basically having destroyed the education at Harvard. And in fact, he said it was the greatest crime ever done to young people in terms of education. Why was he complaining? He was complaining because the education of the classics, that is in what we’ve seen that shaped the founding generation -- Aristotle, Cicero, etc. had been basically dethroned. It still existed but dethroned in terms of what the thrust of education was. The point is that that kind of education at least by the leaders of any society is necessary to understand the whole business of preserving liberty through truth.
In any event, Harvard though was also a center of eugenics, and this is the direct result of this view of social Darwinism. What do I mean by that? Well, in 1912, after he had been out of the office a couple of years, he gave a talk in which he opposed not only interracial relationships but even relationships, marriage relationships, between Protestants and Catholics and Jews and gentiles. He said all this. And it’s in this article that we’re posting here. Amazing. But very instructive. Instructive because of the many quotes in there. Only a few of which do I have time to actually go over. But I think this is the most important. He said, “Human progress depended on promoting reproduction by the best people in the best combinations and preventing the unworthy from having children.” Eugenics.
Now, as the article goes on to say, or question, what would have been the reaction of others at Harvard? I’m quoting on the article. “None of these actions created problems for Eliot at Harvard for a simple reason -- they were well within the intellectual mainstream at the university. Harvard administrators, faculties, and alumni were in the forefront of the American eugenics movement.” Now, as he goes on to recognize, it wasn’t just Harvard. It’s many of the universities -- mainstream universities. And of course, being president of Harvard for 40 years, he had basically shaped the faculty. So the faculty was picked based on people who held these kinds of views at least. In any event, that has spread throughout academia in the whole of the United States.
In this last part of this section on the French Revolution again, I want to focus on lawyers and revolutions. As de Tocqueville said, it was lawyers who led the French Revolution. “It is true that lawyers mainly contributed to the overthrow of the French Monarchy in 1789; but it remains to be seen whether they acted thus because they had studied laws or because they were prohibited from making them.” Interestingly, Napoleon, the dictator, follows the French Revolution and he’s responsible for the French civil code. In many ways that helps lawyers. But the French system reduces lawyers at least in the courts in the sense that they were made relatively insignificant -- the courts that is. Courts were and still today are run by “civil servants.” They don’t have the status at all of Anglo-American judges.
In the colonies, on the other hand, knowledge of law was widely spread through Blackstone’s commentaries. That is, people weren’t formally educated in law necessarily, but they knew their rights based on Blackstone. And lawyers who were lawyers, such as James Otis and John Adams, they argued in court claiming the protections of British law. In the US, lawyers, I suggest, have been -- some lawyers, not all lawyers -- but some lawyers have been implementing a revolution against the founding. They call themselves living constitutionalists. But remember Woodrow Wilson. Woodrow Wilson is the one who really gives us the terminology “A living Constitution.” But he also calls it “An evolving Constitution.” Wilson, who didn’t like practicing law, went on to get a doctorate that I mentioned before in government. I want to quote some of the things that Wilson wrote in order for people to understand how deeply involved he was in the argument that we’re still living with about the nature of an evolving Constitution.
What I would emphasize here is the fact that, “Opposition to the Constitution as a Constitution, and even hostile criticism of its provisions, ceased almost immediately upon its adoption; and not only ceased but gave place to an undiscriminating and almost blind worship of its principles.” But then he goes on to say, “It is interesting to note that we of the present generation are in the first season of free, outspoken, unrestrained constitutional criticism. Whether the Constitution is still adapted to serve the purposes for which it was intended.” We hear that so often today. “The first to entertain any serious doubts about the superiority of our own Constitution as compared to the systems of Europe.” You hear people talking about how wonderful Europe is. “The first to think of remolding the administrative machinery of the federal government.” Yes, this is the origination of the administrative state.
Wilson in 1908 is criticizing the theory of the founders. He would say then, “In our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously follow Mr. Darwin; but before Darwin, they followed Newton.” This is the attempt, as I said before, to make scientific those matters that are not matters of physical science but are matters of political philosophy. All that progressives ask, or desire is permission -- in an era when ‘development,’ ‘evolution’ is the scientific word -- to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.” Of course, those who follow Wilson prefer the term “living Constitution.” I suggest that, instead of acceding to that term, that instead we say, as he did, the “evolving Constitution” because that’s exactly the way they looked at it.
This article in 1912, the year that Woodrow Wilson won the presidency says, at the end of this, “Living political Constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics. It must develop. It couldn’t be a clearer rejection of our Constitution as actually written than that which you’ve seen coming out of the mouth of Wilson.” Now what’s interesting is that, when Wilson wins the presidency in 1912, he does so by defeating two other progressives -- incumbent republican President Taft and former republican President Roosevelt who had gone on to create his own party, the Bull Moose Party. All three were progressives, but the two republicans, you might say, were really in the center or in the right wing of the progressive movement. And so it has been ever since. Fundamentally, many people who call themselves conservatives are really simply on the right wing of the progressive movement.
As president, Wilson was able to implement much of the administrative state with various agencies. FDR would go on to build it out further based on many lawyers who had been trained in the interim. This continues today again, with lawyers being the builders and maintainers of the administrative state. That is the situation we’ve been living in, and it is the situation that is very lucrative for many lawyers. But is it good for the rest of the country?
Okay back to Harvard where in 1870, President Eliot appointed as dean, Dean Langdell of Harvard Law School. And he served for 25 years. And he was very much a reformer. And what he did was to implement the case method, which all lawyers know about. And there are many good things about the case method, but one of the things that it did was to “Eliminate general principles.” The prior treatises which were the basis for the study of law from Blackstone forward, started off with general principles -- that is general truths. Instead, Langdell had the view of law as if it were a biological science, again following Darwin. That was the model. Cases in the law books, in the library -- you would look at them and figure out where things are going. It’s a matter of prediction.
So the real model for all of this becomes Justice Oliver Wendell Holmes on the Supreme Court from 1902 to 1932. He was a professor at Harvard Law School but only for a few weeks. And he insisted that there really were no general principles. There was history, yes. But history is evolving. And so you can’t completely rely on that. And you want to change it as it goes through. But his famous insistence that judges make law is really the key. When you link that together with what Wilson said, you really have the ability that judges have been told, law students have been told, that their job is to make law in an evolving Constitution.
It was in Erie v. Tompkins, after Holmes left the court, that his colleague, Brandeis overturned Swift v. Tyson. An opinion by Justice Joseph Story who also taught at Harvard Law School and indeed started Harvard Law School. And he insisted, as did everyone back then, that judges don’t make law, they give opinions about law. I suggest to you today, we’re still dealing with that issues. Are judges bound by the text or are they free to evolve the law regardless of the text?
And to tie the loop together about these different sections, Holmes’s opinion in Buck v. Bell is very important. That is the opinion in which he upholds a law allowing -- state law allowing forced sterilization. And he says this, “Three generations of imbeciles are enough.” He also cites Jacobson v. Massachusetts which more recently, has been cited as the basis for people being able, in government, to enforce compulsory vaccination. Now it goes on and happens that, at the same time, the Nazis are approving and using eugenics. Well, naturally, eugenics falls out of favor at that point. But does anybody ever really note that this is a terrible stain on what the progressive legal movement did? No. No, it’s just treated as, “Well, that was a phase, and we’ve gotten out of that phase.”
In conclusion, I recognize that this has been a vast overview in many ways overgeneralized. I realize that. But the purpose is to provoke discussion. So what I’m emphasizing is that Darwinism becomes, through the hands of others, social Darwinism. And what does that do? It provides a social patina to materialist philosophy. It’s pseudo-science. The divide then, really as I see it, is philosophic between materialists and non-materialists. Again, materialists are those that think matter is all there is to reality, to human beings. Non-materialists are not all creationists or even believers in God. For example, Aristotle and Cicero, they knew nothing of the Judeo-Christian God. But they were certainly not materialists. The founding was, essentially, non-materialist and non-utopian. That is, people as a matter of reason and many as a matter of religion, held certain truths.
So are we fated to go the way of France or some other place like that that I’ve mentioned? No, I’m not saying that. One of our great hopes is our constitutional structure, federalism, and separation of powers. Unlike France, we are not a unitary state. On the other hand, Justice Scalia used to say, “If people forget about federalism, don’t expect the Supreme Court to save it.” But I am encouraged that many Americans seem to have awakened due to a number of factors. First of all, the suppression of speech -- not only of speech, but really of thought. Radical notions being taught in K through 12 schools that are upsetting, rightly, many parents. The surprise that especially older people have to find out that many young people say that they’re socialists or at least that socialism is acceptable.
And also, I think we have to realize that the overruling of Roe by Dobbs recently has had a shocking effect. You can see it by the demonstrations. What’s the shock? It’s not just about abortion. It’s about the notion that the Constitution is not continually evolving towards some sort of future utopia in which there is complete autonomy for individuals who can simply define their concept of human existence. Dobbs is really the first major case to say no to that view. Now, some in the progressive movement are saying this threatens the whole legal system. It depends on what legal system you’re talking about. It doesn’t threaten the Constitution. But it certainly does threaten the progressive built view of what the Constitution is.
Well, what about people who aren’t lawyers and judges? What can they do? Well, it’s very important to live in truth, as I said. Affirm certain truths without using the language of cultural relativism -- mainly, the evolving values. It’s the truce of reality. For example, it is possible to calmly and respectfully affirm the truth that we have a common human nature. That wasn’t accepted by the eugenics movement. It wasn’t accepted by the slaveholders either -- those who defended slavery as a positive good.
Men and women share in a common human nature, despite the fact that they have observable physical differences. They have many of the same capabilities, but men can’t get pregnant. It’s not just a matter of the physical, of the body, as I’ve been saying since the opening of the discussion of materialism. A human person is not just body like an animal, not just matter. But it includes a soul and even the pagans in ancient Greece that helped shape the western civilization understood that.
So, in tying the end to the beginning, we repeat the words of the first and second paragraphs of the declaration. And be confident if you still believe in the laws of nature and of nature’s God and you still hold certain truths to be self-evident. Thank you.
Dean Reuter: Thank you, Professor Baker. That was really something. A reminder to the audience that you can email Professor Baker your questions directly. And I also wanted to mention that his presentation today is essentially a compilation of earlier book club series events that the professor did for The Federalist Society. So I would draw your attention to those as further resource material.
With that, Professor Baker again, thank you. I do have a few questions I want to ask you since we’ve got you here for a little bit longer. One, you mentioned in your remarks that attacks on the Constitution and the Declaration of Independence essentially began shortly after the Civil War. I’m wondering if you would agree that they actually began earlier than the Civil War and that the Civil War itself could be seen as an attack on the US Constitution and the Declaration of Independence. Your reaction?
Dr. John S. Baker: Sure, Dean and by the way, Dean, call me like you usually do, John. Let’s not do this Professor bit. Okay.
Dean Reuter: You can call me Mr. Reuter. No, I’m kidding.
Dr. John S. Baker: Anyway, look, Dean.
Dean Reuter: Yes.
Dr. John S. Baker: I go over that and the whole point was, there was a division under slavery. And the only way to cure that division was the war, unfortunately. But remember Woodrow Wilson said that after the beginning, when referring to the Anti-Federalists, then everybody was pleased with the Constitution. Wilson makes the point that his generation is the first one -- he ignores the slavery problem -- but the first generation to really criticize the Constitution. So yeah, there were attacks that led to a division but then they were cured. Or one way or another, they ended. Let’s put it that way. Maybe not cured.
Dean Reuter: Right, well and with significant amendments to the Constitution after the Civil War.
Dr. John S. Baker: Sure. Of course.
Dean Reuter: Interesting. You mentioned in your opening, perfectibility. And I think you define it as the pursuit of happiness. You also are quick to note that there’s no guarantee that happiness will be realized by any single individual in the country. In fact, I think you suggest maybe from a philosophical perspective, happiness on earth is unachievable. But I wonder if you want to say more about perfectibility in particular.
Dr. John S. Baker: Okay. This takes us way beyond but I’m happy to address it. The beginning of Christianity and Christ’s resurrection changes the perception of history from being cyclical in the pagan world -- following nature -- to positing an end to history. Christ is the alpha and the omega -- the end. What materialism has to deal with is this change of mindset that history is moving. But where is it moving? For Christians, it’s moving towards the end -- the second coming. So the materialist utopian opportunities to give an alternative, argue that there is this perfectibility but it’s going to be here on earth.
Dean Reuter: Interesting. So that sort of has echoes in my mind to what you said about the Germans and the French Revolution, and that is that history is moving -- for both of those, the common denominator is history is moving in an inevitable determinant direction which, by definition I suppose determinism -- there is no room for liberty in that calculation.
Dr. John S. Baker: Well, they think there’s liberty, but when it doesn’t move the way they think it’s supposed to move, what do they do? They use violence. That’s what it’s all about. It’s about violence and that’s where Tocqueville says, “With equality that turns towards socialism, it ends up with slavery.”
Dean Reuter: So yeah, and you mentioned -- and Tocqueville mentions the violence in the French Revolution I suppose. How do you distinguish that violence from violence in the American Revolution?
Dr. John S. Baker: That’s a very important question because, at the outset in the declaration, the impact, or the import of “We are one people,” isn’t as a separation. There was not the attempt to overthrow the law, religion, or the other aspects of culture. In the French Revolution, it was a civil war against the established order, the monarchy, the church etc., and law. Whereas we were fighting in part to preserve the rights of Englishmen. And why did we maintain the common law after that state by state -- slightly modified, but we kept the law.
Dean Reuter: Yeah. That’s interesting, but don’t we in the declaration say, “We are one people, and you Great Britain are another people.”
Dr. John S. Baker: Yes. That’s the point and -- but that’s not a civil war. See, it was very important from the point of view as a practical matter even of convincing European nations, in particular France and the Dutch, to support the Americans. And it’s one thing if it’s a civil war, and it’s another thing if it’s a separation.
Dean Reuter: Well, thank you. I want to bring us forward maybe 120 years or so -- 150 years. You mentioned Woodrow Wilson. He didn’t have the best record in terms of race relations, I would say. You also mentioned -- and you didn’t mention that, but you did mention eugenics and the Supreme Court’s role in that. I’m wondering if you want to say more about that. Do you see any connection between President Wilson and the eugenics movement in the United States? And I think I remember the eugenics movement not really resolving in the United States until the 1940s after the Nazis had ascended, I guess during World War II. But do you want to say more about the timing and some of those details?
Dr. John S. Baker: Sure. The article from the Harvard Magazine that I talked about gives much greater detail and, in the earlier book club that I did for the student division, but many others watched it, which was called “Reasoned Argument, the Counter to Cancel Culture.” In number 12, I go into much more detail on all of this about the eugenics movement. It wasn’t just at Harvard. It was generally throughout academia in this country. And it obviously seeped then into -- I mean, I look at courts as transmission belts for ideas. A lot of this has to do with the briefs of good lawyers. I mean, if you look at ACLU briefs on the First Amendment, you’ll see how much of that is carried over by the Court when the Court decides. Well, that’s how culture gets transmitted. Among -- certainly, among the elites -- that’s what the article is saying. Among the elites, eugenics was widely supported. Now why? I mean, they turned against it with the Nazis because the Nazis were doing the same thing. The first one the Nazis knocked off were the disabled. So why is it that nobody complains today or says anything about all the disabled female who were -- they were dealt with these procedures that made them infertile and it was all because of the view. What view? A view that they’re somehow not as human as the rest of us.
Dean Reuter: Yeah. The quote from the Court is pretty chilling.
Dr. John S. Baker: It is very chilling.
Dean Reuter: Yeah. A final question then I suppose. And one of them will wrap it up. And a reminder to the audience to feel free to email Professor Baker at the email address provided. And this goes -- this is a broader question. You sort of bemoan the idea that the country is at a very divisive point. I’m wondering if there’s a counter argument here that that really reflects engagement. And even if it's divisive, we have a record number of people that are involved and engaged in politics, in discourse -- even if it’s argument, even if it’s sharp disagreement -- people are participating.
Dr. John S. Baker: Well, right. And as I said at the end, that’s a sign of hope. But on the other side, what you find are people trying to shut that down. Why? They’re not used to having counter arguments that are outside what are considered the accepted arguments. Now, the difficulty in all of this is that revolutions are carried out by not majorities. I mean, John Adams estimated that at the time of the revolution there were a third were patriots supporting the revolution, a third were neutral, and a third were loyalists. Since then scholars have disputed somewhat the numbers, but nobody claims that, at the time of the revolution, that an absolute majority actually supported the declaration and a movement for independence.
The question is, who has the power? That is, I think the division is relatively skewed in the sense that it’s largely the intellectual or chattering classes and the media. So when they get their ideas through the courts and the media then spreads it, what do they represent? They represent a lot of power. We see that especially in the social media companies trying to shut down all of this disagreement with the party line as it were. So I’m encouraged but also wary that people have to understand that they are up against a lot. And what concerns me I guess is that you have kind of those who are opposed to this kind of suppression of ideas. You get ordinary people, which we need. But I don’t see the connection necessarily between intellectuals and the ordinary people. And if you go back and you look at what happened in Eastern Europe, both in Poland and in Czechoslovakia, they were successful because the intellectuals and, over there, the working class came together. That’s what overthrew the Soviet influence in at least those two countries.
Dean Reuter: I’m going to give you a chance to express a final thought, and then we’ll wrap up. You’ve been very generous with your time, John. We’re well beyond the 60-minute mark. But do you have a final thought you want to --
Dr. John S. Baker: Well, look, I thank you for allowing me to do this. And I wanted to do it on the fourth, this weekend. And I think it’s important to engage on this. I just want to encourage anyone who’s listening to feel confident that they’re not alone and that they can talk more freely. And that’s what we have. I’ve seen too many people who are afraid to say anything.
Dean Reuter: Very good. Well again, my thanks to John Baker for joining us. Professor John Baker -- I will call you professor as we wrap up, John -- Professor John Baker for -- you’re so generous with your time and your thinking. Obviously, you put a lot of thought into this. I certainly appreciate it. A reminder to go back to the book series and feel free to find those on this same YouTube channel. And another reminder to our audience, feel free to monitor The Federalist Society’s website and monitor your emails if you’re a member of The Federalist Society for notices of upcoming programs. But until that next program, we are adjourned. Thank you very much.
Dr. John S. Baker: Thank you, Dean.