Pursuit of Happiness: Sir Edward Coke and the Declaration of Independence

THE LAST SOURCE FOR JEFFERSON'S DECLARATION OF INDEPENDENCE we will review is Sir Edward Coke. Educated as a lawyer, Jefferson would have been exposed to Edward Coke's magisterial Institutes of the Laws of England. Indeed, Jefferson himself, in a letter to James Madison dated February 17, 1826, stated that the first volume of Coke's Institutes "was the universal elementary book of law students," and, moreover, "a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties."*

Sir Edward Coke

Jefferson, of course, was not the only Founding Father raised on Coke. Patrick Henry, James Madison, John Adams, John Quincy Adams, John Jay, Daniel Webster, George Mason, and a whole host of others would have been familiar with Coke. The American Founders learned constitutional principles from Coke. Joseph Story, appointed by Jefferson to be Supreme Court Justice, wrote: "When I had completed the reading of the most formidable work, I felt that I breathed a purer air and that I had acquired a new power." As Bernard Schwartz, the American constitutional historian, summarized it: "The influence of Coke may be seen at all of the key stages in the development of the conflict between the Colonies and the mother country."***

We shall focus in particular upon Coke's Calvin's Case. Jefferson would have been familiar with this opinion of Coke's. Indeed, he referenced it in his Reports of Cases Determined in the General Court of Virgina, From 1730-1740 and from 1768-1772, citing to it as being part of an argument by George Mason in the case of Robin et al. v. Hardway et al. to support the following notion:

Now all acts of legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void. The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutes which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.†

The summary of the natural law, its participation in the eternal law of God, and its role in justifying and limiting human law is particularly well-summarized in the language of Sir Edward Coke:

The Law of Nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna, the Moral Law, called also the Law of Nature.
. . . .

And by this Law, written with the finger of God in the heart of man, were the people of God a long time governed, before that Law was written by Moses, who was the first Reporter or Writer of Law in the world. . . . .

The Apostle in the second Chapter to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea quae legis sunt faciunt. . . . . [As the Gentiles who do not have the law, natural do those things which are of the law, a citation to St. Paul's letter to the Romans, 2:14-15]

. . . . And Aristotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud omnes homines eandem habet potentiam. [The law of nature is that which has the same power among all men.] . . . .

And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and Nature is one to all, and therefore the Law of God and Nature is one to all.

. . . . This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws.

Calvin’s Case 7 Coke Reports 1a 77 ER 377 (1608).

One would be hard pressed to find any such thought coming from our modern advocates before the Supreme Court or from the opinions issued by that Court. That is a testament about how far we have strayed from the philosophical foundations in the Declaration of Independence.

Summarizing, then, our prior postings, it is undeniable that the "common sense" of the subject in the Declaration of Independence, informed by the likes of Aristotle, Cicero, Locke, Sidney, St. Germain, and Coke, is that the Declaration of Independence's notion of "pursuit of happiness" is one that is firmly established with the traditions of natural law. It was based upon an Aristotelian eudaimonistic ethic, one that required man to act in accordance with virtue, and one that referenced an objective moral law outside of man, one which governed both his individual acts and this political acts, his governance of his fellows, and the passing of his laws. It was, ultimately, a law that was found within man, based upon reason, a reason not autonomous from God, but one given to him, and therefore under and not opposed to, the God who was its author. Indeed, this natural law, informed by God's reason and discovered by man's reason, was nothing other than a participation into the reason of the cosmos, the eternal law, the rational order of existence and of being, itself a gift of the God who created the world and who saw to its governance in his continuing Providence.

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*See Letter to Madison, Feb. 17, 1826
(http://www.constitution.org/tj/ltr/1826/ltr_18260217_madison.htm.)
**Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (Clark, N.J.: The Lawbook Exchange, 2008), 138-142, 140 (quoting from Story's letter to his son dated Feb. 9, 1841).
***Bernard Schwartz, A History of the Supreme Court (Oxford: Oxford University Press, 1993), 5.
†Thomas Jefferson, Reports of Cases Determined in the General Court of Virgina (Charlottesville: F. Carr & Co., 1829), 114.

Pursuit of Happiness: Christopher St. Germain and the Declaration of Independence

“ALL OF ITS AUTHORITY RESTS," Jefferson wrote about the Declaration of Independence to his fellow Virginian, Richard Henry Lee, "on harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays or the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc." We have in prior postings looked at the Aristotelian, Ciceronian, Lockean, and Sidneyan doctrines regarding happiness, its pursuit, and the role of happiness in the matter of political institutions, government, and law. Jefferson, however, left his explanation open-ended by suggesting that there were others whose influences may have been considered as formative of the doctrines contained within the Declaration. We shall focus on two likely influences that arise from Jefferson's education as a lawyer.

The first such likely influence is Christopher St. German (or St. Germain) (c. 1460-1540). St. Germain was a 16th century English common law barrister who spent much time writing legal and polemical texts. In 1528, St. Germain published his first book, a dialogue entitled Dialogus de fundamentis legum Anglie et de conscientia, or Dialogue of the Foundations of the Laws of England and Conscience, commonly known as Doctor and Student after the titles of the two characters in the dialogue, a doctor of divinity and a student of the laws of England, a barrister. The text proved to be particularly popular in the education of lawyers, and so it was used well into the 19th century as an introductory test to common law concepts, and was replaced by Blackstone's Commentaries. Jefferson had his copy of St. Germain (like he had his copy of Blackstone). While Jefferson did not particularly regard Blackstone highly, he seemed to have some affinity to St. Germain. As Charles Mullett tells us in his book Fundamental law and the American Revolution, "Jefferson felt the urge to annotate [his copy of St. Germain] thoroughly."*

Title Page (Detail) of St. Germain's Doctor and Student

The introduction of Doctor and Student distinguishes between four laws: eternal law, the natural law or law of reason, the law of God (being the positive law of God contained in revelation) and human law:

“[D]octors treat of four laws, the which (it seems to me) pertain most to this matter. The first is the law eternal. The second is the law of nature of reasonable creatures, the which, as I have heard say, is called by them that be learned in the law of England, the law of reason. The third is the law of God. The fourth is the law of man.

D&S, Intr.

St. Germain believes both in a creator God and a providential God whose guidance may be found in all things and in their relationships and history. And so all creation is governed by law, eternal law:

“[T]he reason of the wisdom of God, moving all things by wisdom made to a good end, obtaineth the name and reason of a law, and that is called the law eternal. And this law eternal is called the first law . . . and all other laws are derived of it.

D&S, I.1. Man participates in the eternal law in a unique way. This unique participation in the eternal law arises from man's reason. Man also has been given the grace of revelation, whence he may know parts of the eternal law by God's own communication of it through the Scriptures. Finally, man participates in the eternal law through human law, for the eternal law is itself from whence the laws of men find their ultimate source and binding authority:

[W]hen the law eternal . . . is known to his creatures reasonable by the light of natural understanding, or by the light of natural reason, that is called the law of reason: and when it is shewed by heavenly revelation . . . then it is called the law of God: and when it is shewed unto him by the order of a prince . . . Then it is called the law of man . . . .

D&S, I.1. St. Germain's view of the natural law is wholly traditional and classical. Here he participates in the Aristotelian/Scholastic tradition. There is no variance between St. Thomas Aquinas and Christopher St. Germain:

The law of nature . . . which is also called the law of reason, pertaineth only to . . . man . . . Which is created to the image of God. And this law ought to be kept as well among Jews and Gentiles, as among christian men, and this law is always good and righteous, stirring and inclining a man to good and abhorring evil. And as to the ordering of the deeds of man, it is preferred before the law of God, and it is written in the heart of every man, teaching him what is to be done, and what is to be fled, and because it is written in the heart, therefore it may not be put away, and ne it is never changeable by no diversity of place, ne time . . . . And all other laws, as well the laws of God as to the acts of men, as other, be grounded thereupon.

D&S, I.2.

One would be hard-pressed to find any difference between St. Thomas Aquinas's understanding of law and its source in God's eternal law and Christopher St. Germain's understanding of law. The natural law is the most foundational law in man, as it is the principal means by which man is told by God how man ought to live. It is what must be used to determine the good and the means toward that good. It is binding across all time, across all men, across all cultures and religions. It is therefore immutable and preeminent. It is written in man's heart, cannot be erased or ignored, and is unchangeable. All laws must conform to the natural law, for if they vary therefrom, then to that extent they are against the will and reason of God, against the very order of the cosmos, and against man's very good. It is obvious that man's individual and common happiness would depend upon compliance with this natural moral law.

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*Charles Mullett, Fundamental Law and the American Revolution (New York: Columbia University Press, 1933), 39.

Pursuit of Happiness: Sidney and the Declaration of Independence

ALGERNON SIDNEY IS THE FINAL of four names expressly identified by Thomas Jefferson as a source of the ideas behind the Declaration of Independence. In Aristotle and with Cicero we have the classical foundation of the American experiment. In Locke we have the more conservative Enlightenment strain, as distinguished from the radical Enlightenment strain of the French philosophes, mixed in. With Sidney we have a form of radicalism, but a Republican radicalism, a radicalism bred of Puritan emphasis on the Old Testament and its disdain for kingly rule, a radicalism based ultimately on the rights of Englishmen against the King and Crown, rights based upon the notion that government was not a private thing, but was a thing of the commonwealth, a res publica, a "public thing."

Who was this Algernon Sidney, this

British Cassius, fearless bled;
Of high determin'd spririt, roughly brave,
By ancient learning to the'enlighten'd love
Of ancient freedom warm'd?*

For Jefferson, Sidney was a martyr for republican principles, a symbol of republican ideals against the tyranny of kings. Sidney's never-completed work, his Discourses Concerning Government--a work which was used against Sidney as evidence in his trial that led to his death on the Scaffold for his opposition to Charles II--was given high praise by Jefferson. In a letter to Mason Weems, Jefferson said that Sidney's discourses "are in truth a rich treasure of republican principles," and vouched that it was "probably the best elementary book of the principles of government."** In the minutes of the Board of Visitors of the University of Virginia dated March 4, 1825, it was resolved that "as to the general principles of liberty and the rights of man, in nature and in society, the doctrines of Locke, in his 'Essay concerning the true original extend and end of government,' and of Sidney in his 'Discourses on government,' may be considered as those generally approved by our fellow citizens of this, and the United States."***

Algernon Sidney

What was Sidney's view on happiness and its pursuit? The answer to that question requires to look at Sidney's Discourses, but it also warrants us to preview an earlier work of Sidney, his Court Maxims written 20 years before his Discourses.† It is not that Jefferson or his contemporaries would have known of these, as they were not published during Sidney's lifetime, and indeed were not discovered and published until the 1970s. However, the thought of Sidney in the Court Maxims is well-encapsulated, and its classical and Scriptural sources are well-identified.

Sidney's notion of happiness is Aristotelian and eudaimonistic. He sees happiness as intrinsically connected with virtue. Indeed, happiness is impossible unless one is freed from the tyranny of the passions, for the passions may steal one of freedom just as surely as any tyrant:

We need seek no other definition of a happy human life in relation to this world than that set down by Aristotle as the end of civil societies, namely that men may in them enjoy vita beata secundum virtutem. For as there is no happiness without liberty, and no man more a slave than he that is overmastered by vicious passions, there is neither liberty, nor happiness, where there is not virtue.

Maxims, p. 24. The Aristotelian reference is manifest. When Sidney says that happiness is a vita beata secundum virtutem, a happy life according to virtue, he is quoting from a Latin translation of Aristotle's Politics, Book III, 1281a (τὸ ζῆν εὐδαιμόνως καὶ καλῶς: to zēn eudaimonōs kai kalōs). Happiness is life in accord with the virtues, life in accord with the good.

Happiness, however, is not based upon subjective desires and their fulfillment. Rather, happiness must be defined with reference to what is good by nature.

[H]e is not happy that has what he desires, but desires what is good and enjoys it. For we very often desire things that are evil and hurtful to ourselves. Nor is there a greater misery than the satisfaction of such ill-conceived desires.

Maxims, p. 4. Indeed, ultimately happiness must refer to God and to his laws, the law of nature and the laws in Scripture. "God seeks the happiness and perfection of his creatures," Sidney states, and He "has given laws to mankind which show the way to that happiness and perfection." Id.

Happiness is an important concept to Sidney, as ultimately it is the happiness of the people that is the source and end of any leader's power:

According to Socrates a king is not created, that he may carefully provide for himself, but for the happiness of those that create him. This agrees with Isidore. That is the rule of government, says he, which refers to all to the profit of those who live under it.

Maxims, p. 4. The purpose of the king, then, is not his own aggrandizement or private good, but the common good, and that requires liberty, a right order, and the promotion of the virtuous life of its citizens.

Indeed, if the King's reign impinges upon the happiness of the populace, then the populace have the right to overthrown the king, to justify revolution:

[I]f it appears that another government does more conduce to their good than that of kings, [the people] may choose some other form of government from which they may expect more happiness.

Maxims, p. 11. This, of course is exactly the burden of the argument of the Declaration of Independence.

Happiness not only justifies the king, it justifies law.

When the law is good, it directs how it should be rightly administered. The observation of such rules we call just government. This good government still refines and betters the law. . . . Where things are in this right order, there is a perpetual advance in all that is good, until such nation attains unto the political perfection of liberty, security, and happiness, which were the ends for which government was constituted.

Maxims, p. 132. Happiness then, along with liberty and security which are concomitants to it, is what governments are for.

Sidney's individualism is manifest in his view of government. There is already in Sidney a strong libertarian trend:

So in civil societies those deserve praise that make such laws as conduce to a civil harmony wherein the several humours, natures, and conditions of men may have such parts and places assigned [to] them, that none may so abound as to oppress the other to the dissolution of the whole . . . But everyone, in his own way and degree, may act in order to the public good and the composing of that civil harmony in which our happiness in this world does chiefly consist.

Maxims, p. 23. Liberty is defined in this manner by Sidney in his Discourses. He defines liberty as "that exemption from the dominion of another," and believes that it is not something given to us by government, but rather is something that is "the gift of God and nature." Discourses, I.17:44.

The purpose of liberty, then, is not a "liberty from" only, but is a "liberty for" also. It is a liberty for the purpose of working out our happiness, a happiness that is built upon our free conforming of ourselves to the good, the good that is manifest in our nature and in the laws of God.

“[T]he principle of liberty in which God created us . . . includes the chief advantages of the life we enjoy, as well as the greatest helps towards felicity, that is the end of our hopes in the other.

Discourses, I.2:5.

In summary, Sidney's view of happiness is no different than that of Aristotle, Cicero, or Locke. We have in Sidney a view of happiness that requires conformity with the good. The good is something objectively measured: it is known with reference to nature and with reference to the law of God. It is an objective moral order within which man must conform. It is this conformity to the right that leads to happiness. It is for this that governments are instituted among men. It is for this that there is a ruler and there is a ruled. It is for this that measures the rightness of that rule, whether it be the rule of a man or king or the rule of law. It is for this that liberty is given to men by the author of liberty, God. Happiness--life in accordance with virtue and the natural moral law--is the end of man and the end of man's government.

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*James Thomson, The Seasons, "Summer"
**Thomas Jefferson, "Letter to Mason Weems," December 13, 1804.
***"From the Minutes of the Board of Visitors,” University of Virginia, March 4, 1825, quoted in Merrill Petersen, Writings of Thomas Jefferson, (New York: Library of America, 1984), 497.
†See Algernon Sidney, Court Maxims (Hans Blom, Eco Haitisma Mulier, eds.) (Cambridge: Cambridge University Press, 1996). References to the Court Maxims are to this text.

Pursuit of Happiness: Hooker and the Declaration of Independence

“THE LINKAGE IS DIRECT," Carl Becker tells us in his book The Declaration of Independence: A Study in the History of Ideas, "Jefferson copied Locke, and Locke quoted Hooker.”* The natural law scholar, A. P. d'Entreves classifies Hooker as a "sixteenth-century Anglican example of seventeenth-century Catholic scholasticism," and we may be assured that some of this scholarship influenced the Declaration of Independence and its notion of the "pursuit of happiness."

In his famous work, The Laws of Ecclesiastical Polity, Richard Hooker presents a classical and Christian understanding of the natural law, beginning with the notion of eternal law:

But if we will give judgment of the laws under which we live, first let that law eternal be always before our eyes, as being of principal force and moment to breed in religious minds a dutiful estimation of all laws, the use and benefit whereof we see; because there is no doubt but that laws apparently good, are (as it were) things copies out of the very tables of that high everlasting law, even as the book of that law has said concerning itself "by me Kings reign," and "by me Princes decree justice."

Laws of Ecclesiastical Polity, I.16.2.

Richard Hooker

Hooker's definition of natural law is one based upon our nature, most fundamentally upon that part of our nature that is most specifically of man: reason. It is the natural moral law built upon practical reason which tells us what is virtuous and which informs us of the good.

Law rational therefore, which men commonly used to called the law of nature, meaning thereby the law which human nature knows itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason: this law, I say, comprehends all those things which men by the light of their natural understanding evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do.

Laws of Ecclesiastical Polity, I.8.9.

It is within this context of an immutable eternal law arising from God the Creator and the providential governance of God which, for man consists of the natural law, that one must understand Richard Hooker's eudaimonistic and Aristotelian notion of happiness.

Happiness, therefore is that estate whereby we attain, so far as possibly may be attained, the full possession of that which simply for itself is to be desired, and contains in it after an eminent sort the contentation [i.e., satisfaction] of our desires, the highest degree of all our perfection.

Laws of Ecclesiastical Polity, I.11.3.

Ultimately, for Hooker as for the entirety of the natural law tradition before him, happiness required a finis ultimus, a final end, which was our unification with god. Therefore, all things of this earth, all goods, were to be intrinsically ordered toward this final end.

“[I]t is not the possession of any good thing [that] can make them happy which have it, unless they enjoy the thing wherewith they are possessed. Then are we happy therefore when fully we enjoy God, as an object wherein the powers of our souls are satisfied even with everlasting delight: so that although we be men, yet by being unto God united we live as it were the life of God.

Laws of Ecclesiastical Polity, I.11.2.

To the extent Locke relied upon the "judicious Hooker" for his ideas (and there is debate among scholars as to how devoted to Hooker's thought Locke was), and those ideas influenced the American colonialists directly through Hooker or indirectly through Sidney and Locke and others who relied upon Hooker, these "sixteenth-century Anglican" reformulations of "seventeenth-century Catholic scholasticism" crept into the parchment signed by our founding fathers from John and Sam Adams to Oliver Wolcott. It would not have crept there were the thought not in their minds.

Unquestionably, to the extent informed by Hooker, the "pursuit of happiness" would have understood there to be an objective order, one based upon reason, in the entirety of the cosmos, one found there as a result of a God that created the world and that governed it through His Providence. Man, that creature of God endowed with reason, participated in that eternal law through the natural law, a law based upon reason. In its essentials it was immutable and unchanging and it guided man to right and wrong. It defined the scope of virtue. It urged him to do good and avoid evil and allowed him to see the good and distinguish it from evil. It involved participation in an objective moral order, the conformity with which was what ultimately led to man's happiness. Freedom was intended to allow man to pursue that happiness within the confines of that objective moral order. Ultimately, that order guided man to the God who, out of nothing, had formed it, much like he had formed man out of the dust of the earth.
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*Carl L. Becker, The Declaration of Independence: A Study in the History of Ideas (New York: Harcourt, Brace & Co. 1922), 79. We have treated Richard Hooker extensively in prior postings on this blog. This series, entitled "Law, Sit up Higher: Richard Hooker and the Natural Law," may be accessed by referencing the labels "Of the Laws of Ecclesiastical Polity," or "Richard Hooker."

Pursuit of Happiness: Locke and the Declaration of Independence

IN HIS LETTER TO RICHARD HENRY LEE, Jefferson expressly referred to four sources of the thoughts behind the Declaration of Independence: Aristotle, Cicero, Locke, and Sidney. Aristotle and Cicero, whom we reviewed in prior postings on this subject, represent the Graeco-Roman tributary of thought which flowed into the American mainstream like the Missouri into the Mississippi. Three other tributaries--represented by Locke and by Sidney and the vague "Etc." referred to by Jefferson--remain to be reviewed from the perspective of what they may have contributed to the notion of the Declaration's meaning of the "pursuit of happiness."

John Locke represents the intellectual English contribution to the Declaration of Independence's blended heritage. Locke may be seen as a symbol of Enlightenment thought, yet this was not the radical Enlightenment of the French philosophes. Rather, we have here a tempered Enlightenment. Through Locke (and his frequent reference to "judicious" Richard Hooker who was deeply affected by Thomistic and Suarezian sources) we have an indirect link to the Dominican St. Thomas and the Jesuit Francisco Suarez. The Declaration of Independence is, without question, a much more conservative document than, say, its French analogue, the Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l'Homme et du Citoyen) of 1789.*

John Locke

Locke, of course, is generally viewed as the Father of the Declaration of Independence, yet his "trilogy" of rights** was clearly rejected by Jefferson. Locke's "trilogy" of basic rights was "life, liberty, and estate." In his Second Treatise on Government, Locke sounds eerily like the Declaration of Independence:

Man being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property, that is, his life, liberty, and estate, against the injuries and attempts of other men.

Second Treatise, § 87.

Yet it is apparent that the Lockean "trilogy," or at least the third term "estate," was not slavishly copied by Jefferson from Locke. It is perhaps a "mystery" why Jefferson substitute the Lockean "estate" (which is equivalent to "property" in the broadest sense) with "pursuit of happiness." Since Jefferson left us no clear clue on the matter, we enter into realms of probability and uncertainty. In one sense, then, substituting "life, liberty, and the pursuit of happiness" for "life, liberty, and estate" may be taken to be a rejection of pure Locke. Yet in another sense, it should not be seen as a pure rejection of Locke. The notion of "pursuit of happiness" is, in fact, found in Lockean texts, though not as part of any trilogy.

For example, if we turn from Locke's book of "public right," the Second Treatise, to Locke's Essay Concerning Human Understanding, we come across this statement of Locke which could clearly have informed Jefferson's thinking on this subject:

The necessity of pursuing happiness [is] the foundation of liberty. As therefore the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness; so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty.

Essay, Bk 2, ch. 21, § 51.

The subject of the pursuit of happiness is further parsed by Locke in his continuing discussion of the subject:

The stronger ties we have to an unalterable pursuit of happiness in general, which is our greatest good, and which, as such, our desires always follow, the more are we free from any necessary determination of our will to any particular action, and from a necessary compliance with our desire, set upon any particular, and then appearing preferable good, till we have duly examined whether it has a tendency to, or be inconsistent with, our real happiness: and therefore, till we are as much informed upon this inquiry as the weight of the matter, and the nature of the case demands, we are, by the necessity of preferring and pursuing true happiness as our greatest good, obliged to suspend the satisfaction of our desires in particular cases.

Id.

As Carol Hamilton explains,*** the Lockean reference to "happiness" in this text is clearly a haling back to Graeco-Roman sources. The Locke we have here is not the Locke of the Enlightenment, but a classical Locke:

“The Greek word for “happiness” is eudaimonia. In the passage above, Locke is invoking Greek and Roman ethics in which eudaimonia is linked to aretê, the Greek word for “virtue” or “excellence.”

The Lockean notion of happiness, then, is not too far from the Aristotelian and Ciceronian notions. Locke's notion of the "pursuit of happiness" is one that is governed by a natural law, a law that is clearly based upon that part of man's nature which makes him unique from all the rest of creation, his reason. "The law, that was to govern Adam," Locke tells us, "was the same that was to govern all his posterity, the law of reason." Second Treatise, § 57. It is a notion of happiness that does not exclude law. Indeed, it is a notion of happiness that does not exclude God, as the existence of God--which is a truth that reason itself establishes--is is "so fundamental a truth, and of that consequence, that all religion and genuine morality depend thereon." Essay, Bk IV, ch. 10, § 7.

In fact, Locke is sufficiently traditional in his reference to God and his Law to sound like he falls into the Scholastic tradition of St. Thomas, Francisco Suarez, and Richard Hooker, where the natural moral law, which is equated with the Mosaic revelation (the Ten Commandments), is seen as a participation in the eternal and immutable law of God. As he phrases it in his work the Reasonableness of Christianity, the moral part of the Mosaic law is distinguished from the ceremonial judicial, and the “moral part of it,” which is the natural law, “being conformable to the eternal law of right, is of eternal obligation.”†

We do not find in Locke any warrant to inject into the Declaration of Independence a notion of happiness which is subjective, without reference to objective moral norms of right and wrong or without reference to God, the author of those norms.
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*Though a comparison of the Declaration of Independence to the Declaration of the Rights of Man of 1776 and of the Citizen of 1789 beyond the scope of this particular posting's topic, we might note the much more traditional, theistic invocations of God in the Declaration of Independence ("Nature's God," "Creator," "Supreme Judge of the world," "divine Providence") compared to the clearly vague deistic (and Masonic) reference to the "Supreme Being" (l'Être Suprême) in the Declaration of the Rights of Man.
**It is remarkable how rights are frequently declared in "trilogy" form: The "liberté, égalité, fraternité" (liberty, equality, fraternity) of the French Revolution, the "Einigkeit und Recht und Freiheit" (unity, justice and freedom) of the German Deutschlandlied, the "peace, order and good government" (in French: in French, "paix, ordre et bon gouvernement") in the Canadian British North America Act of 1867. The trilogy of "life, liberty, and property" is found in the Declaration of Colonial Rights, a resolution of the First Continental Congress. The Fifth Amendment and Fourteenth Amendment to the United States Constitution declare that governments cannot deprive any person of "life, liberty, or property" without due process of law. More recently, one may turn to Article 3 of the Universal Declaration of Human Rights which reads, "Everyone has the right to life, liberty, and security of person."
***See Carol V. Hamilton, “The Surprising Origins and Meaning of the ‘Pursuit of Happiness’” at http://www.hnn.us/articles/46460.html.
†John Locke, Reasonableness of Christianity, Works (1824), Vol. VI, p. 13.

Pursuit of Happiness: Cicero and the Declaration of Independence, Part 2

CICERO WAS INVOKED BY THOMAS JEFFERSON in his letter to Richard Henry Lee* as one of the classical sources that fed or informed the Declaration of Independence as a whole, and we have focused upon the notion of "pursuit of happiness" in particular. In a prior posting we looked at Cicero's On Moral Ends.** In that posting it is clear that Cicero advanced a Platonic/Aristotelian/Stoic amalgam of eudaimonistic ethic, one based upon virtues and recognizing the existence of a natural law, an objective, non-conventional moral law that governed all men and that was discoverable by man by the use of right reason. In this posting, we shall focus on Cicero's dialogue On Laws or De Legibus and what it says about happiness from the perspective of the law.***

Cicero

What Cicero had written about personal happiness in his On Moral Ends he consistently applies to the happiness of the State in his On Laws. In his On Laws, however, he clearly links his jurisprudential theory to participation in the eternal law of God. Our experience of law in general, and the act of human legislation in particular, is a participation in a divine thing: a divine ordering of reason. Law is therefore not an invention of man, but a gift of the gods:

[L]aw was not brought up by human minds; that it is not some piece of legislation by popular assemblies; but it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions. Therefore, they said, that first and final law is the mind of God who compels or forbids all things by reason. From that cause, the law which the gods have given to the human race has rightly been praised: it is the reason and mind of a wise being, suited to command and prohibition.

De leg., II.8.

The link between human law and divine law is reason, for reason is the life blood of the law and the quality or characteristic which is most divine in man.

And, therefore, since nothing is better than reason, and it is found both in humans and in God, reason forms the first bond between human and God. And those who share reason also share right reason; and since that is law, we humans must be considered to be closely allied to gods by law.

De leg., I.23.

Law, reason, nature, justice and divinity are all intertwined, and in Cicero's view, it would be wrong to separate law from reason, law from nature, law from justice, law from God, as it is apparent that all these come very close to being threads in one single rope:

Law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established [perfected] in the human mind, it is law. . . . .

[L]aw is a power of nature, it is the mind and reason of the prudent man, it distinguishes justice and injustice.

De leg., I.18, 19.

Human law, Cicero concludes, must be informed by this law above all laws, this eternal law which, for man, is found in his reasonable nature, and which informs him of all which is good and which is just, and allows him to distinguish that which is good and just from that which is evil and unjust:

Law, therefore, is the distinction between just and unjust things, produced in accordance with nature, the most ancient and first of all things, in accordance with which human laws are constructed which punish the wicked while defending and protecting the good.

De leg., II.13.

Indeed, it may be said that the motto of Cicero might be: "I will seek the roots of justice in nature," Repetam stirpem iuris a natura. De leg., I.20. Justice is, for Cicero, clearly not a matter of mere convention. At its foundation, justice is something that is found in the nature of things. Indeed, anyone who thinks that justice is merely conventional is nothing less than a madman:

[T]here is no justice at all if it is not by nature, and the justice set up on the basis of utility is uprooted by that same utility: if nature will not confirm justice, all virtues will be eliminated. . . . To think that these things are a matter of opinion, not fixed in nature is the mark of a madman.

De leg., I.42-45.

We ought perhaps to close with that classic paean of praise to the natural law found in the De republica of Cicero. Although the majority of that work had been lost, and so unavailable to Jefferson, and parts of it have only recently be re-discovered in the last century, one part of this work remained available, and that was the part of it containing the famous Dream of Scipio, where the need for eternal life was urged as importance for the maintenance of public order. In that text, however, was the classic encomium for the natural law. There can be no doubt that Jefferson would have been familiar with it:

For there is a true law: right reason. It is in conformity with nature, is diffused among all men, and is immutable and eternal; its orders summon to duty; its prohibitions turn away from offense . . . . To replace it with a contrary law is a sacrilege; failure to apply even one of its provisions is forbidden; no one can abrogate it entirely.

De rep., III.33.

To the extent Jefferson referenced Cicero's books of "public right," in his Declaration of Independence and in its phraseology "pursuit of happiness," it is indisputable that he envisioned happiness as something that is achieved by the following of the natural law, a law that participates in the eternal law of God, a law that is discovered by us, not made by us. A law that is learned through reason and which inerrantly leads us to true justice, to the good, to right. It is one acquired by virtue, and one which encompassed moral absolutes. Ultimately, this natural law was immutable, unchanging, constant, inabrogable.

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*See Pursuit of Happiness: The Declaration of Independence's Intent.
**See Pursuit of Happiness: Cicero and the Declaration of Independence, Part 1.
***We have devoted significant time in prior postings to analyzing Cicero's De Legibus as well as Cicero's De republica (On the Commonwealth or Republic)).

Pursuit of Happiness: Cicero and the Declaration of Independence, Part 1

CICERO ADDRESSES THE ISSUE OF HAPPINESS in various of his works, but in our endeavor to determine what Jefferson's notion of happiness was in the Declaration of Independence we shall focus on two of those works, namely Cicero's On Moral Ends or De finibus bonorum et malorum libri quinque and his De legibus or On Laws. Cicero, as we have noted in an earlier posting, was one of the sources that Jefferson expressly cited (along with Aristotle, Sidney, and Locke) as informing the common sense of the notions of political thinking that informed the Declaration.

Cicero's On Moral Ends is a Platonic form of dialogue that expressly addresses the issue of happiness. It is organized in five books each of which sets forth a theory of happiness or criticizes a theory of happiness. The first book sets forth the theory of Epicureanism (with Torquatus as its spokesman). The second book is a criticism of Epicureanism. The third book sets fort Stoicism, and that theory is advanced by the character of Cato. The fourth book then follows which criticizes that theory. The final and fifth book presents a theory of happiness (presumably Cicero's own) which is a blend of Plato/Aristotle. It is advanced by the character of Antiochus, and then briefly criticized by the character of Piso. It is this last moral theory, one which advances a classic notion of eudaimonistic ethics built on the notion of happiness which we shall stress in this posting.

Cicero

The entire structure of the Ciceronian notion of happiness is built upon conformity with nature. As stated in V.8, "[t]he whole of this inquiry into the ends or, sot to speak, the limits of good and evils must begin from that . . . as adapted and suited to nature (naturae esse aptum et accomodatum) and which is the earliest object of desire for its own sake." De fin., V.8.

Nature is what provides the inclinations in all creatures, including man, to pursue things that are in accordance with the nature of that creature. It is nature which defines the goods for man, and nature which defines their ordering. Thus:

Every living creature therefore finds its object of appetition in the thing suited to its nature. Thus arises the ends of goods, namely to live in accordance with nature (secundum naturam vivere) and in that condition which is the best and most suited to nature that is possible (naturamque accommodatissime). . . . This leads to the inference, that the ultimate good of man is life in accordance with nature (secundum naturam vivere), which we may interpret as meaning life in accordance with human nature (vivere ex hominis natura) developed to its full perfection and supplied with all its needs

De fin., V.9. Patently, Cicero is advancing through Antiochus a thick, well-developed notion of natural law. The natural dispositions of man will guide him surely to his end, to happiness, and these inclinations arise not imposed externally without regard to his good, but in fact ultimately stem from self-preservation, self-love:

The wisest authorities have therefore been right in finding the basis of the chief good in nature (summi boni a natura petiverunt), and in holding that this instinctive desire for things suited to our nature is innate in all men, because it is founded on that natural attraction which makes them love themselves.

De fin., V.11.

The inclinations of nature, at least in man, are not to be thought of as being the brute, bodily inclinations alone. Since man is composed of two parts, body and soul, and the rational soul is the more noble part, it follows that emphasis in inclinations ought to be given those inclinations of nature that deal with the rational soul. “Now it is manifest that man," Antiochus notes, "consists of body and mind (corpore animoque constare), although the parts of the mind hold the first place and those of the body second." De fin., V.12.

So we ought not to categorize man with the brute animals. Instead, one ought to focus upon the rational mind of man. "Turning now to the mind, this must not only exist, but also be of a certain character (cuiusdam modi debet esse)." So not all inclinations, whether of the body or rational soul, ought to be entertained. Rather, the inclinations have to be trained, molded, righted by these certain modes which we learn are the virtues. Thus, the mind must be a certain character, and "it must have all its parts intact and lack none of the virtues (et de virtutibus nulla desit)." De fin., V.12.

The upshot of a focus on nature, one that gives pride of place to the rational part of man, and yet one that realizes that there must be the formation of character through virtue is what gives the ultimate recipe for happiness in the Ciceronian construct.

The result will be that excellence of mind will be rated higher than excellence of body, and the volitional virtues of the mind will surpass the non-volitional; the former, indeed are the ‘virtues’ specially so called, and are far superior, in that they spring from reason, the most divine element in man.

De fin., V.13.

This is the Ciceronian eudaimonistic ethic that drives his moral theory of an individual man. We find that theory writ large in the analysis of man's social life in Cicero's work On Laws. It is to that work of "public right" to which we shall turn in our next blog posting, and to which without doubt Jefferson had in mind when he referred to Cicero as being a source of the common sense of the subject behind the Declaration of Happiness. A brief review of Cicero's work On Laws leaves no doubt that the classical sources for the Declaration of Independence were heavily weighted with notions of natural law, indeed, with the Platonic/Aristotelian/Stoic notion of the eternal law which informs the natural law. The law of nature and the law of nature's God referred to by Jefferson in the Declaration of Independence was the source of man's happiness, and was who defined the manner in which it ought to be pursued.

Pursuit of Happiness: Aristotle and the Declaration of Independence

ARISTOTLE IS NOT GENERALLY ACCORDED HIS DUE ROLE in the thinking of Thomas Jefferson, and yet he is the first author of books of public right that Jefferson referred to in his letter to Richard Henry Lee of May 8, 1825. In this regard, even Jefferson's long-time political opponent, John Adams, echoed Jefferson. John Adams wrote that the principles of the American Revolution were the principles of "Aristotle and Plato, Livy and Cicero, and Sidney, Harrington, and Locke." It was from these that "the principles of nature and eternal reason; the principles on which the whole government over us now stands."* Aristotle was not only influential directly--through his Politics and Nicomachean Ethics, but also through some of his other works (e.g., his Rhetoric and indirectly through those other popular authors who constantly referred to him as authoritative (e.g., Grotius, Sidney). Though we will focus on Aristotle's notion of happiness, his important in other areas--mixed constitutions, the rule of law, etc.--is also important to keep in mind.

Aristotle

For Aristotle, as for Plato, there was an intimate relationship between the art of politics and the art of living well. It was apparent to Aristotle that government was made for man, and not man made for government. Man was by nature a social animal and he required life in common. But the life in common was intimately and inextricably intertwined with the life of man individual. The city was nothing less than man writ large. It was for this reason that when asking himself whether the definition of happiness for the state is the same as that for an individual man, Aristotle easily answered that they were the same. “There remains to be discussed the question," Aristotle says in his Politics, "Whether the happiness of the individual is the same as that of the state (πόλις), or different? Here again there can be no doubt—no one denies that they are the same.” Politics, 1324a. Knowledge of what makes man happy, then, was essential, as it was the end of government to make men happy. It is for this reason that the form of government was determined by reference to the happiness of the citizen. “Now it is evident that the form of government is best in which every man, whoever he is, can act best and live happily (ἄριστα πράττοι καὶ ζῴη μακαρίως).” Politics, 1324a.

Now for Aristotle, the happiness of man was intimately tied to living well, and this required both reference to the virtues (excellences) which, in turn, required reference to man's nature and to moral absolutes.

The life of blessedness and living well, then, is the focal point of politics and the art of making laws and living in common. Politics for Aristotle was thus the “master art,” as it “legislates (νομοθετούσης) as to what we are to do and what we are to abstain from . . . So that this end must be the good for man (τἀνθρώπινον ἀγαθόν).” Nicomachean Ethics, 1094a-b. Indeed, political science aims at a good, the good for man in life in common, and it is this life in common which is happiness (εὐδαιμονία). Nicomachean Ethics, 1095a.

In saying that the end of both man and the state is happiness, however, Aristotle has a particular view of happiness. He does not view happiness as a "feel-good" hedonistic notion in the manner that is popularly attributed to Epicurus and which is so common in contemporary America. For Aristotle, happiness (eudaimonia or εὐδαιμονία) was "living well" or flourishing, and it necessarily referred--not to increase in pleasure or avoidance of pain--but a reference to some sort of objective norm to which man adapted and acted in accord with. In particular, it elicited a final end for man, an ultimate goal to which man tended. It was man's final end which defined whether man was happy or was not:

Now we call that which is in itself worthy of pursuit more final than that which is worthy of pursuit for the sake of something else . . . . [and] we call final without qualification that which is always desirable in itself and never for the sake of something else. Now such a thing happiness, above all else, is held to be.

Nicomachean Ethics, 1097a.

Since happiness was something that indicated a final end, such things as pleasure, wealth, honor, even virtue--all of which were means to this final end--were not to be accorded ultimate value. Man, both individually and in common, ought not to confuse means and end. It is an unhappy life which chooses means as ends, which replaces or switches means and ends and makes means ends.

Happiness (εὐδαιμονία), the good life (εὖ ζῆν), or doing well (εὖ πράττειν), is neither pleasure (ἡδονή) nor wealth (πλοῦτος), nor honor (τιμή), nor even virtue (ἀρετή), for these are chosen for the sake of happiness.

Nicomachean Ethics, 1095b, 1097b. It follows that the end of the state was not assuring the practice of pleasure or the acquisition of wealth or honor. The end of the state was to allow its citizens to live well, to pursue happiness. And this was happiness in conformity with virtue (excellence) and in conformity with a life that recognized moral absolutes.

Arising as it were out of man's final end, happiness was at the apex of man's life. It was supported by other goods, goods that were instrumental and which provided a foundation of happiness. “Happiness, then, is something final and self-sufficient, and is the end of action . . . . [but that] seems a platitude, and a clear account of what it is is still desired.” Nicomachean Ethics, 1097b. How could should clearer account of happiness be obtained? For Aristotle, a clearer account of happiness could be obtained by ascertaining “the function of man (τὸ ἔργον τοῦ ἀνθρώπου).” Nicomachean Ethics, 1097b. While happiness was a self-sufficient excellence, it had to account for goods of the body and goods for the soul, man as he was: flesh-and-blood and rational. And it had to last the man's entire life, spanning beyond the lusts of youth to the waning days of old age. Happiness was not something once acquired--like gold--and which could then be stored in a warehouse. It was something that was acquired internally and which lasted. It was the result of a state of character, an ordering that allowed a man, as it allowed a society, to live well.

Now if the function of many is an activity of the soul (ψυχῆς ἐνέργεια) . . . . Human good turns out to be activity of soul in accordance with virtue (κατ᾽ ἀρετήν), and if there are more than one virtue, in accordance with the best and most complete . . . . in a complete life . . . [f]or one swallow does not make a summer . . . .

Nicomachean Ethics, 1098a. Man's internal compass of virtue, then, was an analogue to the ordering of virtue which governed the body politic and which was law.

For Aristotle, living well, then, required a life in accordance with virtue. “With those who identify happiness with virtue or some one virtue," noted Aristotle, "our account is in harmony.” Nicomachean Ethics, 1098b. This happy life required a minimum of bodily sustenance, although it certainly was not limited to mere satisfaction of bodily needs. “[H]e is happy who is active in accordance with complete virtue and is sufficiently equipped with external goods . . . .” Nicomachean Ethics, 1101a.

Bread was necessary, but man did not live on bread alone. What was most important after the minimal needs of the body were supplied was life in accordance with virtue, and so virtue was essential for self-governance and for governance of the body politic:

Since happiness is an activity of soul in accordance with perfect virtue, we must consider the nature of virtue; for perhaps we shall thus see better the nature of happiness . . . The true student of politics, too, is thought to have studied virtue above all things.

Nicomachean Ethics, 1102a.

For Aristotle, virtue came in two kinds: intellectual (ἀρετή διανοητική) and moral (ἀρετή ἠθική); both, however, were the result of “habit” (ἔθος). Nicomachean Ethics, 1103a. These habits, however, were a sort of secondary nature through which man had to clothe himself. These habits, though natural in the sense that they fully completed man's nature, did not arise automatically as if they were some involuntary bodily function. Though these virtues were constructed, built as it were through habits, they were not contrary to nature. These were natural acquisitions, sort of perhaps like a tortoise's shell was natural to the turtle.

Neither by nature (ἄρα φύσει), then, nor contrary to nature (παρὰ φύσιν) do the virtues arise in us; rather, we are adapted by nature to receive them, and they are made perfect by habit (τοῦ ἔθους).

Nicomachean Ethics, 1103a.

The purpose of the state, the reason behind its laws, the end which ought to be guiding the acts of the state's legislators is virtue. And indeed, the quality of a government may be assessed with reference to whether it inculcates or encourages its citizens to live a life in accordance with virtue, that is, to live a happy, well-ordered life. A law which fails to encourage virtue, in fact, sins, falls short of the mark.

This is confirmed by what happens in states; for legislators make the citizens good by forming habits in them (νομοθέται τοὺς πολίτας ἐθίζοντες ποιοῦσιν ἀγαθούς), and this is the wish of every legislator, and those who do not effect it miss their mark (ἁμαρτάνουσιν), and it is in this that a good constitution differs from a bad one.

Nicomachean Ethics, 1103b.

For Aristotle, moral virtue is something different from mere passion or emotion or power. The genus (γένος) of moral virtue is neither passion or emotion (πάθη) or faculty (δυνάμεις), but rather is a “state of character” (ἕξεις). Nicomachean Ethics, 1105b, 1106a. Moral virtue is the “state of character” (ἕξεις) which “makes a man good and which makes him do his own work well.” Nicomachean Ethics, 1106a.

Famously, Aristotle required a balance, a golden mean, in the exercise of virtue since either extreme resulted in vice. As Aristotle expressed it, moral virtue “is the state of character concerned with choice, lying in a mean, i.e., the mean relative to us, this being determined by a rational principle (ὡρισμένῃ λόγῳ), and by that principle by which the man of practical wisdom (ὁ φρόνιμος) would determine it.” Nicomachean Ethics, 1106a-1107a.

It would be wrong, however, to suppose that Aristotle thought that everything was subject to balance or calculation, and that there were no such things as absolutes. Aristotle was not a consequentialist or utilitarian in his understanding of right and of wrong and of what makes men happy. There were, in Aristotle, some moral absolutes--boundaries across which men ought never step, where averages or means did not reign, but where black and white defined the barrier.

But not every action nor every passion admits of a mean; for some have names that already imply badness, e.g., sprite, shamelessness, envy, and in the case of actions adultery, theft, murder; for all of these and suchlike things imply by their names that they are themselves bad, and not the excesses or deficiencies of them. It is not possible, then, ever to be right with regard to them; one must always be wrong.

Nicomachean Ethics, 1107a.

Ultimately, however, all virtues ought to be ordered under one supreme virtue. There was therefore a hierarchy of virtues, the highest virtue being tied to man's rational nature and related to contemplation of man's greatest good, God, the Uncaused Cause:

If happiness is activity in accordance with virtue, it is reasonable that it should be in accordance with the highest virtue; and this will be that of the best thing in us. Whether it be reason or something else that is this element which is thought to be our natural rule and guide and to take thought of things noble and divine, whether it be itself also divine or only the most divine element in us, the activity of this in accordance with its proper virtue will be perfect happiness. That this activity is contemplative (θεωρητική,), we have already said.

Nicomachean Ethics, 1177a.

Indeed, ultimately, man's happiness depended upon God: “[T]he activity of God (τοῦ θεοῦ ἐνέργεια), which surpasses all others in blessedness, must be contemplative; and of human activities, therefore, that which is most akin to this must be most of the nature of happiness.” Nicomachean Ethics, 1178b.

Virtue, moral law, and God. For Aristotle, happiness in man was always in reference to this trinity of concepts. And just as man ought to develop virtue, with reference to the moral law, and in view of his highest good--contemplation of God as Uncaused Cause, so likewise should the state develop its laws and its governing institutions. For Aristotle as for the Declaration of Independence, "whenever any Form of Government becomes destructive of" the people's "pursuit of happiness," the people have a right "alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their . . . Happiness."

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*John Adams, Novanglus et Massachusettensis (Boston: Bews & Goss, 1819), 12.

Pursuit of Happiness: The Declaration of Independence's Intent

THE DECLARATION OF INDEPENDENCE, the ever astute G. K. Chesterton noted in his book What I Saw in America, is "perhaps the only piece of practical politics that is also theoretical politics and also great literature." It is a foundational document for Americans, and indeed may be said to have near dogmatic status in what Robert Bellah called the America "civil religion." G. K. Chesterton saw the same phenomenon and so he called the Declaration of Independence America's creed:

America is the only nation in the world that is founded on a creed. That creed is set set forth with dogmatic and even theological lucidity in the Declaration of Independence.

G. K. Chesterton, What I Saw in America (London: Hodder and Stoughton), 12.

Within America's creed is found perhaps its central kernel, its "incarnatus est," the central theme of the American political credo, at which all American knees genuflect:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Jefferson's Draft of Declaration of Independence

A central feature of the heart of the political creed is the "pursuit of happiness," that "glittering and sounding generality of natural right"* that gushed forth from the fertile mind of Jefferson, steeped as it was in the writings of the Greek and Roman classics, the writings of the Commonwealthmen, the French philosophes and the Scottish enlightenment. From his fertile mind, that phrase was scratched on paper by nib dipped into the crystal inkpot atop Jefferson's "plain, neat, convenient" desk in Mr. Graff's "new brick house three stories high" in Philadelphia's Market Street.** From that paper, that felicitous word was "fairly engrossed on parchment" made of lamb's hide by the practiced hand of the scrivener Timothy Matlack by order of the Second Continental Congress, only then to be graced by the signatures of fifty-six eminent representatives from the infant "thirteen united States of America," who may as well have been signing their own death warrants. From there it was proclaimed in public squares across the land by voices full of ebullient confidence, and, when heard by the American army in New York, incited an angry mob to destroy King George III's equestrian statue which was at the foot of Broadway on the Bowling Green in that city, the metal of which was molten into 42,088 bullets later aimed at the bodies of the King's redcoats, how many found their rest in the bodies and brains of those redcoats God only knows. In an apocryphal story which still makes the rounds, King George III allegedly wrote in his diary on July 4, 1776, "Nothing of importance this day." Si non è vero è ben trovato, since those fictional words express the benign neglect, the regal insouciance, nay, perhaps even the kingly opposition to to the rights of the colonists as Englishmen. When those words of Jefferson's eventually made it across the sea to the burning ears of George III--his regal blood unused to opposition set to boiling--naturally found them insubordinate and treasonous, a happiness to be opposed by the might of his army backed by the supposed divine right of Kings.

What, however, did Jefferson whose words started this historical course of America mean by the term "pursuit of happiness"?

That's a hard mystery of Jefferson's
What did he mean? . . . .
But never mind, the Welshman got it planted
Where it will trouble us a thousand years.
Each age will have to reconsider it.

Robert Frost, "The Black Cottage"

It is that "hard mystery" of "happiness"--the word as sacred to Americans as the tetragrammaton was to the Jew--that will the the subject of the next several postings. In exploring the mystery of Jefferson's happiness in the Declaration of Independence, we will take the clues imparted to us by Thomas Jefferson himself. In his letter to his fellow Virginian Richard Henry Lee, Jefferson confessed that the Declaration "neither aim[ed] at originality of principle or sentiment, nor yet copied from any particular and previous writing." "It was," the Sage of Monticello recalled in his waning years, "intended to be an expression of the American mind." Its intention: "to place before mankind the common sense of the subject."*** This, then, seems to be the opposite of mystery: we have to look for something unoriginal, something, everybody then believed, something built upon common sense.

So what was the unoriginal principle or sentiment, the expression of the American mind, the common sense of the subject when it came to happiness? As Americans, we have lost our hold on the concept of happiness held so close by our colonial forefathers. "Sometimes," as Professor Howard Mumford Jones stated in his lectures on the Declaration of Independence, In Pursuit of Happiness, "we do not see a continuing idea . . . because of the transmogrifications it undergoes."† The concept of "happiness" has gone such a transmogrification. We shall see that the notion as held by Jefferson (and the overwhelming majority of all Americans) was one that recognized the importance of virtue and recognized, moreover, the existence of an objective natural moral law, one found in our nature and one supplied to us by the Creator of nature, nature's God. The modern notion of a happiness purely subjective and libertine, unattached and ungoverned by virtue or any objective moral code--an autonomous, self-defined happiness--was an entirely foreign notion. This has some importance in understanding the role of government: "When Jefferson spoke of pursuit of happiness," as Garry Wills reminds us, "he had nothing vague or private in mind. He meant public happiness which is measurable; which is, indeed the test and justification of any government."†† If "happiness" is defined as something subjective, government will mean one thing. If "happiness" is defined as something objective, government means something else entirely.

If we are going to have any hope of drawing forth the notion of "happiness" contained in our foundational document, we are going to have to "reassemble a world around that text" and "resurrect beliefs now discarded," and we are going to have to hear the word "happiness" as it was intended, "ungarbled by intervening quarrels of sons with their fathers' language."†††

Thankfully, we have a clue to what that language meant. It is a clue given by Jefferson and found in another letter to another fellow Virginian, this time Richard Henry Lee. In that letter of May 8, 1825, Thomas Jefferson informed Lee that "All [of the Declaration of Independence's] authority rests then on harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays or the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc."‡

Detail, Jefferson's Letter of May 8, 1825 to Richard Henry Lee

We shall focus, then, on what these "elementary books of public right" tell us about "happiness." From Aristotle we must delve into his Nicomachean Ethics and his Politics. From Cicero we must turn to his De legibus (On Laws) and his De finibus bonorum et malorum (On Moral Ends). From Sidney, we ought to look at his Court Maxims and his chief ouvre, his Discourses on Government. From Locke, we can search through his Essay Concerning Human Understanding and his Second Treatise on Government, and we may take a jaunt through the "judicious" Hooker's Laws of Ecclesiastical Politie which informed Locke's thought. Under the rubric "Etc." we might look at some of the legal books that were influential to Jefferson's legal education, namely Christopher Saint-Germain's The Doctor and Student and Sir Edward Coke's Institutes, and, most particularly, his opinion in Calvin's Case.

A review of all these sources which informed Jefferson's notion of happiness--an amalgam of classical, ecclesiastical, republican, Enlightenment, and legal sources--will quickly show that the notion of happiness envisioned in our Declaration of Independence was one which incorporated the notion of virtue and the existence of a natural moral law, a natural law that revealed, through the natural light of reason, objective norms of right and wrong. This was a natural law that participated in God's eternal law, the same God who created the natural order, and who had revealed himself in Christ.
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*The phrase is Rufus Choate's ("glittering and sounding generalities of natural right which make up the Declaration of Independence") Samuel Gilman Brown, ed., "Letter to the Maine Whig Committee," The Works of Rufus Choate (Boston: Little, Brown & Co., 1862), Vol. I, 215).
**Thomas Jefferson, Letter to Mease, September 25, 1825 (quoted in Pauline Maier, America Scripture (New York Alfred E. Knopf 1997), 186-87.
***Thomas Jefferson, Political Writings (Joyce Appleby and Terence Ball, eds.) (Cambridge: Cambridge University Press, 1999), 148 (Letter to Richard Henry Lee, May 8, 1825).
†Howard Mumford Jones, The Pursuit of Happiness(Cornell University Press, 1966), 1.
††Garry Wills, Inventing America: Jefferson's Declaration of Independence (New York: Houghton Mifflin, 2002), 164.
†††Wills, 259, 369.
‡Letter to Henry Lee, May i, 1825, in Jefferson, 148.

The Natural Law as the Constitution's Ghost

The pre-existing and unwritten law underlying our political institutions at their founding presupposed a natural moral law, a law based upon reason which transcended the political power of the State. For the American colonists, the natural law justified the Revolution against the established and otherwise legitimate authority of King George III. It justified the foundations of our new government under the Articles of Confederation and, later, the Constitution. For the founders of our republican and democratic form of government, the natural moral law pre-existed the foundation of our Government, was the basis of that Government, and defined both the duties and the limits of that Government.

As a matter of historical record, the Declaration of Independence, the Constitution, the Bill of Rights, and the Fourteenth Amendment were debated and fashioned in the light of natural law principles. (See Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-Christian World (Wilmington, DE: Intercollegiate Studies Institute, 2003), 71, 88). It is not by any means hyperbole to say a natural law political philosophy was the “Constitution’s ghost.” It may not only not be a hyperbole, it may, in fact, be an understatement.

The Constitution's framers were virtually unanimous in the belief that the natural law provided both the basis and the limits of government. Documentary evidence shows beyond cavil that a philosophy of natural law was accepted by George Washington, John Adams, Thomas Jefferson, James Madison, Alexander Hamilton, John Jay, James Wilson, James Iredell, Oliver Ellsworth, Benjamin Rush, Gouverneur Morris, Roger Sherman, John Quincy Adams, John Dickinson, James Monroe, Edmund Randolph, George Mason, Patrick Henry, Richard Henry Lee, George Clinton, Elbridge Gerry, Sam Adams, and John Hancock among others. Both Federalists and Anti-Federalists were in absolute agreement that the principles of natural law and natural right provided both the basis and the limit to governmental power. (See Terry Brennan, The Natural Rights and the Constitution: The Original “Original Intent”, 15 HARV. J. L. & PUB. POL. 965, 971-73 (1992)).

Moreover, the same was equally true for the various states that ratified the Constitution:

Of the thirteen states that drafted constitutions or proposed amendments to the federal Constitution before the ratification debates, twelve expressly cited natural rights, and such rights were later recognized in the organic acts of over forty states. This is something more than literary garniture: The texts and debate of the ratification era show that founding generation almost universally accepted natural law . . . .

(Brennan, at 974-75.)

The integration between the natural law and our nation’s organic law is behind the liberal Supreme Court Justice Douglas’s statement, not so long ago, that our institutions of government “are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which the government must respect.” McGowan v. Maryland, 366 U.S. 420, 562 (1961), 81 S.Ct. 1153, 1219 (1961) (Douglas, J., dissenting) (Justice Douglas further stated that such principles are “enshrined” in the Declaration of Independence, the body of the Constitution, as well as the Bill of Rights.”) So even as late as 1961, the liberal Justice Douglas no-less conceded that “a moral law which the State is powerless to alter” was “enshrined” in the organic law of the United States: the Declaration of Independence, the body of the Constitution, and the Bill of Rights.

Now compare Justice Douglas's words with those of Justice Kennedy in the case of Lee v. Weisman, 505 U.S. 577, 589, 112 S.Ct. 2649, 2656, 120 L.Ed.2d 467 (1992) (holding that public school could not provide for a “nonsectarian” prayer to be given by rabbi selected by school). In Lee v. Weisman, Justice Kennedy had the boldness to say that the First Amendment did not permit the government to act as if "there is an ethic and a morality which transcend human invention."

The statement is, of course, preposterous. It is preposterous historically and legally. But it is more than preposterous. It borders on the idiotic. Taken to its logical conclusion, Justice Kennedy's opinion would mean that the 1st Amendment prevents the government from teaching the Declaration of Independence and the Constitution since those presuppose "that there is an ethic and a morality which transcend human invention."

Something is rotten in both the State of Denmark and the United States.