Were the Founders Libertarian?

In the fall 2001 issue of The National Interest, Francis Fukuyama writes in response to my brief statement of the meaning of the term 'natural rights,' namely, that 'properly understood, [they] are liberties, spheres of personal authority within which one does as one judges fit-even if it may be unwise, imprudent or cowardly-and others must gain entrance by permission. Fukuyama responds that 'Mr. Machan's point is, as I understand it, that the United States was founded on what we would now label libertarian principles. This is simply not true: most of the American Founding Fathers believed that virtue was necessary for a successful democracy, to the extent that many believed that the states (though not the Federal government) had a right to establish religious belief. Most would almost certainly have disapproved of individuals consuming pornography in the privacy of their own homes. We have moved toward what Michael Sandel labels "procedural liberalism" in which the state takes no interest in virtue or individual ends only in the second half of the 20th century. I am in fact a supporter of classical liberalism, at least of the Tocquevillian variety, which implies the need for certain values beyond the bare-bones procedural institutions to guarantee the possibility of ordered liberty.'

I return to this exchange because it comes up often when conservatives discuss the American founding. It is their customary theme that the Founders were really not interested in human liberty but rather in instilling virtue in us all. Both Fukuyama and these conservatives are wrong.

No one claims, of course, that Jefferson and Madison were libertarians in the sense in which Robert Nozick was and are a host of other political theorists today. Tom Paine came close and later, Lysander Spooner pretty much made a libertarian anarchist case about the principles on which the American republic was founded.

But this isn't the issue'indeed, Fukuyama's comment above is beside the point since I never made the claim he claims I made. But let us see, independently of that, whether it makes sense to deny that the American Founders had a strong libertarian strain about them.

If you do hold that we human beings were created equal and endowed with unalienable rights to, among other things, life, liberty and the pursuit of happiness, you are as close to stating libertarian precepts as one could possibly be back in the founding era. Furthermore'and this is vital to note'having made clear that human beings have these unalienable rights'rights they cannot loose or be robbed of so long as they remain human beings'it doesn't at all follow that they were not also interested in promoting human virtue. The same indeed goes for contemporary libertarians'they haven't at all declared themselves in favor of amorality, of nihilism or anything like that. But their focus has been political, as was the Founders' focus in the Declaration and in the Federalist Papers, with ethics and such coming in for secondary treatment.

This makes perfectly good sense. After all, the American Founders were establishing the legal order in which people'already back then of widely different religions and cultures'would conduct their lives. What was needed is a common framework for the laws that would protect and guide them and the essential idea that we possess natural rights to be free serves that common purpose better than any kind of regime concerned mainly with making us all morally virtuous.

Indeed, one of the main themes of the classical liberal'even the natural law classical liberal'social philosophy had been that moral virtue cannot be commanded by government or anyone else, not if we are talking about adult citizens. Even Aristotle realized this when he noted that moral virtue required choice! Choice, in turn, requires freedom.

I suppose it is a boost in America to get the Founders on one's side as one lays out one's ideas on how America should be governed. Too bad for him that the real story doesn't put the Founders on Francis Fukuyama's side.