Happy 4th of July: Crucified With History

If the laws of God and men are therefore of no effect, when the magistracy is left at liberty to break them, and if the lusts of those, who are too strong for the tribunals of justice, cannot be otherwise restrained, than by sedition, tumults, and war, those seditions, tumults, and wars, are justified by the laws of God and man . . . A legal magistrate, who takes upon him, though within the time prescribed by the law, to exercise a power which the law does not give; for in that respect he is a private man, “quia,” “as Grotius says, eatenùs non habet imperium,” and may be restrained as well as any other, because he is not set up to do what he lists, but what the law appoints for the good of the people; and as he has no other power than what the law allows, so the same law limits and directs the exercise of that which he has. This right, naturally belonging to nations, is no way impaired by the name of supreme given to their magistrates; for it signifies no more, than that they do act sovereignly in the matters committed to their charge.

Algernon Sidney, Discourses Concerning Government (1698), Works 188–95, 458–62

Government is not made in virtue of natural rights, which may and do exist in total independence of it, and exists in much greater clearness and in a much greater degree of abstract perfection; but their abstract perfection is their practical defect. By having a right to everything they want everything. Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done by a power out of themselves, and not, in the exercise of its function, subject to that will and to those passions which it is its office to bridle and subdue. In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights. But as the liberties and the restrictions vary with times and circumstances and admit to infinite modifications, they cannot be settled upon any abstract rule; and nothing is so foolish as to discuss them upon that principle.

Edmund Burke, Reflections on the Revolution in France (1790), Selected Works of Edmund Burke, Volume 3, page 151-152

It should be said of Edmund Burke just as it was said of Algernon Sidney, that if his memory “shall cease to be an object of respect and veneration, it requires no spirit of prophecy to foretell that English liberty will be fast approaching its final consummation.” But Charles James Fox’ words are prophetic since the memory of both men is truly forgotten today in spite of the ongoing importance of the ideas they argued for and against, and in the case of Sidney, died for. After a steady diet of CNN, Axios, and Buzzfeed, it’s understandable that the two passages I’ve chosen above seem about as edible and digestible as a sock full of thumbtacks.

But that’s the point, I guess, of why I have always tried to be provocative about American history. This July 4th I can’t claim to have done much more than a cursory study of the relationship of these two men and what Burke thought of Sidney. But in honor of the holiday, I did read a section of Sidney’s important work, Discourses Concerning Government, a section which leads off the Founders’ Constitution’s collection of seminal documents supporting the Constitution of the United States. That section is called, Right of Revolution, and contains the documents many of the founders relied upon in the development, promulgation, and implementation of the Declaration of Independence.

And, intuitively, Edmund Burke is my guide star, my ambiguous Anglo-Irish voice from the past who left no system, no aggressive tome of organized political thought. Instead, Burke is something of a cypher, someone who I would desperately like to meet, perhaps, in my fantasy, in some pub somewhere in Ireland or Scotland, maybe, as the night wore on, joined by Swift, Hume, and Smith, and when Locke showed up, we’d snub him. He’s English you know.

In any event, I’m going to use these two passages and these two dead white men to reflect on the current state of affairs, including the anniversary of a document, the Declaration of Independence. First, I love that, as much as it is lost on the throng, we celebrate a text today. It’s ironic that France, the source of structuralism and semiotics, would celebrate its revolution with an event, the sacking of the Bastille while we, an English country would celebrate a text. However, I digress.

I’ll paraphrase the question this way: “When is are we justified to overthrow a government through extra legal means, including violence?” I’ll summarize Sidney’s and Burke’s answers as I understand them, give my own, and then guess about which category of overthrow the American Revolution might fall into. And I’ll consider the current disturbance accordingly.

Sidney argues that rebellion is justified when it fits into three categories, the third of which is when a leader “exercise[s] a power which the law does not give.” When a leader or government does this, Sidney quotes Grotius in Latin, it or the leader gives up the “imperium” and becomes just another citizen under the law. You’ll be familiar with this concept as, “Nobody is above the law.” It isn’t something Sidney invented but rather has its origins in Magna Carta. Still, it is a powerful statement. Sidney uses every word but treason to describe the violence justified when this happens; “those seditions, tumults, and wars, are justified by the laws of God and man.”

Burke, on the other hand, says the government doesn’t derive its authority from people assessing some standard of “abstract perfection” and acting on that assessment, but from the “wisdom of men.” And government sometimes means that the “inclinations of men should frequently be thwarted.” These “restraints on men, as well as their liberties, are to be reckoned among their rights.” Burke is talking about the balance of individual unhappiness with outcomes versus received wisdom and the common good. Sedition is not justified by appeal to something outside this wisdom, an abstraction. Burke’s vision of government is that “rights” include being restrained when our personal piques might lead to violence just as much as they include expressing them.

As I’ll detail later, I’m with Burke. Make no mistake about it I’d love to see the deposition of political leaders that I believe are exercising “a power which the law does not give.” Deposing them using the “wisdom” of men means extended court fights, bitter elections, and lots of time while there is injustice being done. On the other hand, we could burn down the system based on our apprehension of “natural law.” How, without some reference to the received wisdom of tradition do we adjudicate between competing visions of what should be without institutions? Such disputes can be resolved only through what Sidney himself calls, “‘decertatio per vim,’ or trial by force.” That means violence and a break down of order. Sidney’s ideas are as dangerous today as they were when he was executed for them, not because they are objectively wrong, but because unleashing everyone to fight with each other using violence to settle whose version of natural rights is far worse than the injustice of the maddening processes of received wisdom. 

Did the American Revolution achieve the standard prescribed by Sidney? It did not. King George III was far from exceeding his rights under the constitution under which he ruled. By the late 18th century English monarchy was hardly absolute; in fact by that period, most power lay in Parliament that peopled the king’s cabinet and chose his Prime Minister. The migration of power from King and Church to the legislature was well on it’s way by 1776 and among the many supporters of the American cause who spoke vigorously on their behalf in Parliament were both Burke and Fox. The notion of taxes being imposed on the American colonies without representation is nonsense and false.

As for today, we have laid the eggs, the chickens have been born, walked around, pecked and fluttered, and now have come home to roost. As Burke pointed out in his observations about the French Revolution, fixing even outrageous injustice takes time,

As the liberties and the restrictions vary with times and circumstances and admit to infinite modifications, they cannot be settled upon any abstract rule; and nothing is so foolish as to discuss them upon that principle.

Obviously the latest spasm of violence and anger, however legitimate, is more Sidney than Burke. The desire being expressed – to smash the system and impose one based on abstract principles – is right out of the French Revolution or any other explosion of pent up hostility. England was no different in the 17th century. Then and there, religious and economic shifts led to a century of violence and civil strife settled in 1689 by an appeal to tradition by Whigs, who ironically consider Sidney a martyr for republicanism and he most certainly is. But his sort of revolution, like the French, Russian, or Chinese, always fail by their own measures devolving into mortal disputes between just who has the best and purist vision of how to implement the abstract principles of justice.

Both Sidney and Burke imply that force is needed to keep order. We need police and we will always have them no matter what they are called. We can smash all the statues and patrol and police language but no matter how extensive such efforts will never truly purify the discourse to anyone’s satisfaction. And yes, our institutions are built on deeply divisive and even criminal behavior. But should we burn them to the ground?

As I’ll elaborate later, one of our hands holds on to our collective past, our arm extended through time to the brutality and viciousness of another time. The other hand at the end of an outstretched arm holds on to an unknown future. Each of these pulls us, as if we were on a fulcrum, even on a cross. This means that every moment that we are in is fraught with both the hopes and crimes of the past, our own hopes and suffering, and what we must do, what we are obligated to do, for people unseen, unknown, unborn, who are in the future.

The Apostle Paul wrote to Christians in Rome that they must be crucified with Christ. We must be crucified with history, suffer with it. We can’t start over. We can’t let this cup pass. We have to accept it. And that means we must accept the traditions and institutions given to us and we must improve them, change them, and evolve them over time to the point when they might be unrecognizable to us in the future. This, unfortunately, means justice and gratification delayed. This is much better than the bloodshed and terror of a failed revolution.