No CrossRef data available.
Article contents
THE PRIVATE SOCIETY AND THE LIBERAL PUBLIC GOOD IN JOHN LOCKE'S THOUGHT
Published online by Cambridge University Press: 02 June 2008
Abstract
This essay interprets John Locke's teachings about private societies, or free private associations. The essay proceeds by interpreting Locke's mature writings on ethics, politics, and philosophy, and then by illustrating Locke's teachings as they apply to two contemporary problems in associational freedom. Although Locke wrote about private societies primarily in the course of arguing for religious toleration, throughout his mature corpus he develops an internally consistent general theory of associational freedom. At first glance, Locke seems to suggest that all citizens are entitled to associate for any end of their choosing, to control admission into and expulsion from their membership, and to enforce their own internal rules of governance. However, Locke qualifies this broad right to bar societies from organizing around ends inconsistent with the minimal moral and political conditions of liberalism. Ultimately, Locke suggests, citizens deserve a broad right of private society only to the extent that they are well enough formed by their regime and its private institutions to be capable of governing themselves in both private and public life.
In contrast with contemporary practice, Locke's justification is broader in some respects and narrower in others. The essay illustrates the implications by considering how Locke's teachings justify limiting the scope of anti-discrimination laws and enlarging the scope of government efforts to dissolve seditious associations.
- Type
- Research Article
- Information
- Copyright
- Copyright © Social Philosophy and Policy Foundation 2008
References
1 Simmons, A. John, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992), 14Google Scholar; Bernstein, David E., “Antidiscrimination Laws and the First Amendment,” Missouri Law Review 66 (2001): 83, 105 n. 109Google Scholar; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972)Google Scholar.
2 Horn, Robert A., Groups and the Constitution (Stanford, CA: Stanford University Press, 1956), 7Google Scholar; see also Dunn, John, “The Claim to Freedom of Conscience: Freedom of Speech, Freedom of Thought, Freedom of Worship?” in Grell, Ole Peter, Israel, Jonathan I., and Tyacke, Nicholas, eds., From Persecution to Toleration: The Glorious Revolution and Religion in England (Oxford: Oxford University Press, 1991), 170–93Google Scholar.
3 References to Locke's Letter Concerning Toleration are made not in the notes but parenthetically in the text, with the following conventions. “LT 32” refers to Popple, William's translation of A Letter Concerning Toleration (London: Printed for Awnsham Churchill, 1689), page 32Google Scholar. I thank Tom West for pointing out to me several discrepancies between Popple's translation and Locke's original Latin. In cases involving those discrepancies, I translate Locke's Latin myself, citing Locke, John, Epistola de Tolerantia: A Letter on Toleration, ed. Klibansky, Raymond, Gough, trans. J. W. (Oxford: Clarendon Press, 1968)Google Scholar.
References to Locke's other major, mature writings are also made in the text, with the following conventions: “TT I.86” refers to Locke, John, Two Treatises of Government, student edition, ed. Laslett, Peter (Cambridge: Cambridge University Press, 1988), treatise 1, section 86. “ECHU II.21.51”CrossRefGoogle Scholar refers to Locke, John, An Essay Concerning Human Understanding, ed. Nidditch, Peter H. (Oxford: Oxford University Press, 1979), book 2, chapter 21, paragraph 51Google Scholar. “RC 235” refers to Locke, John, The Reasonableness of Christianity, ed. Ewing, George W. (Washington, DC: Regnery Gateway, 1965), paragraph 235Google Scholar. “STCE 70” refers to Locke, John, Some Thoughts Concerning Education, in Locke, Some Thoughts Concerning Education and Of the Conduct of the Understanding, ed. Grant, Ruth W. and Tarcov, Nathan (Indianapolis, IN: Hackett Publishing Co., 1996), paragraph 70Google Scholar.
In quoted passages, all italics are in the original unless otherwise noted.
4 Horn, Groups and the Constitution, 8. See also Peter Laslett, “Introduction,” in Locke, Two Treatises of Government, 3, 86; Cranston, Maurice, “John Locke and the Case for Toleration,” in Mendus, Susan and Edwards, David, eds., On Toleration (New York: Oxford University Press, 1987), 101–21, 119 and passimGoogle Scholar. Similarly, while Ingrid Creppell treats Locke's Letter Concerning Toleration as justifying a broader theory of liberalism, she works with Locke's observations on religion and not with his observations on private associations generally. See Creppell, Ingrid, “Locke on Toleration: The Transformation of Constraint,” Political Theory 24, no. 2 (1996): 200, 226, 228–29CrossRefGoogle Scholar.
5 See Richard Boyd, “The Madisonian Paradox of Freedom of Association” (elsewhere in this volume); and Simmons, A. John, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), 135–36Google Scholar.
6 Walzer, Michael, “Liberalism and the Art of Separation,” Political Theory 12, no. 3 (1984): 315, 324CrossRefGoogle Scholar; Creppell, “Locke on Toleration,” 201.
7 LT 15. Popple's translation suggests that the right of private society is not only “immutable” but also “fundamental.” Locke's Latin has no word corresponding to “fundamental.”
8 See, for example, Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 300–302Google Scholar.
9 See Waldron, Jeremy, “John Locke: Social Contract Versus Political Anthropology,” The Review of Politics 51, no. 1 (Winter 1989): 3–28CrossRefGoogle Scholar. For more general criticisms of the consent principle, consider Rawls, John, “Justice as Fairness,” Philosophical Review 67 (1958): 178CrossRefGoogle Scholar.
10 Grant, Ruth W., “Locke's Political Anthropology and Lockean Individualism,” Journal of Politics 50, no. 1 (February 1988): 42, 59–60CrossRefGoogle Scholar; Dunn, John, The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government” (Cambridge: Cambridge University Press, 1969), 29, 266–67CrossRefGoogle Scholar; Laslett, “Introduction,” 3, 87. See also Gough, J. W., John Locke's Political Philosophy, 2d ed. (London: Oxford University Press, 1973), 14Google Scholar (finding a “basic inconsistency between [Locke's] earlier belief in absolute moral principles and his tendency later to think in hedonistic terms”); and Polin, Raymond, “John Locke's Conception of Freedom,” in John Locke: Problems and Perspectives, ed. Yolton, John W. (Cambridge: Cambridge University Press, 1969), 1Google Scholar (“traditional interpreters of John Locke like to pretend that he professed simultaneously a theoretical philosophy of empirical style and a practical philosophy of innatist inspiration”).
11 Letter from John Locke to Richard King, August 25, 1703, cited in Rapaczynski, Andrzej, Nature and Politics: Liberalism in the Philosophies of Hobbes, Locke, and Rousseau (Ithaca, NY: Cornell University Press, 1987), 15 and n. 11Google Scholar.
12 Myers, Peter C., Our Only Star and Compass: Locke and the Struggle for Political Rationality (Lanham, MD: Rowman and Littlefield, 1998), 18Google Scholar.
13 See Kraynak, Robert P., “John Locke: From Absolutism to Toleration,” The American Political Science Review 74, no. 1 (1980): 53–69CrossRefGoogle Scholar.
14 By describing Locke as a philosopher, this interpretation comes into some tension with more historically focused interpretations that prefer to read Locke primarily in the context of the problems of England in his day. See Laslett, “Introduction,” 76; and Dunn, The Political Thought of John Locke, 16–18, 266–67.
15 Although Locke's Of the Conduct of the Understanding targets the same audience, on the topics covered here that work is less relevant than and adds little to the Essay. I pass over Locke's subsequent letters on toleration for similar reasons.
16 Grant, Ruth W., John Locke's Liberalism (Chicago: University of Chicago Press, 1987), 8–9CrossRefGoogle Scholar. For similar approaches to interpreting Locke, consider Zuckert, Michael P., Launching Liberalism: On Lockean Political Philosophy (Lawrence: University Press of Kansas, 2002), 3–17Google Scholar; Myers, Our Only Star and Compass, 13–26; Tarcov, Nathan, Locke's Education for Liberty (Chicago: University of Chicago Press, 1984)Google Scholar; Strauss, Leo, What Is Political Philosophy? and Other Studies (Chicago: University of Chicago Press, 1959), 93 n. 24Google Scholar; and Strauss, Leo, “Persecution and the Art of Writing,” Social Research 8, no. 1 (1941): 488, 503 n. 21Google Scholar.
17 Dunn, The Political Thought of John Locke, 29; see Gough, John Locke's Political Philosophy, 10–11, 19, 26; and Waldron, Jeremy, God, Locke, and Equality: Christian Foundations of John Locke's Political Thought (Cambridge: Cambridge University Press, 2002), 82CrossRefGoogle Scholar.
18 On this point, I follow Thomas West, Ruth Grant, A. John Simmons, and Nathan Tarcov more than I do Michael Zuckert. Zuckert grounds Locke's normative claims in “self-ownership,” which is not necessarily eudaimonistic. See Zuckert, Launching Liberalism, 4–5, 193–95; see also West, Thomas G., “Nature and Happiness in Locke,” The Claremont Review of Books 4, no. 2 (2004) (reviewing Zuckert, Launching Liberalism), available online at http://www.claremont.org/publications/pubid.659/pub_detail.aspGoogle Scholar; Myers, Our Only Star and Compass, 137–72; Grant, John Locke's Liberalism, 23–25, 37–39; Simmons, The Lockean Theory of Rights, 52–53; and Tarcov, Locke's Education for Liberty, 210. See also Stolzenberg, Nomi M. and Yaffe, Gideon, “Waldron's Locke and Locke's Waldron: A Review of Jeremy Waldron's God, Locke, and Equality,” Inquiry 49, no. 2 (2006): 186, 197–202CrossRefGoogle Scholar (criticizing Waldron for reading Locke as a deontologist and not a utilitarian).
19 See MacIntyre, Alasdair, “Hume on the ‘Is’ and the ‘Ought’,” in MacIntyre, , Against the Self-Images of the Age: Essays on Ideology and Philosophy (South Bend, IN: University of Notre Dame Press, 1978): 109, 124Google Scholar; Anscombe, G. E., “Modern Moral Philosophy,” Philosophy 33, no. 124 (1958): 1, 2CrossRefGoogle Scholar (general criticisms of Kantian deontology); and Creppell, “Locke on Toleration,” 200–201 (on the relevance of Locke's observations on the human condition).
20 See Macpherson, C. B., The Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1962), 220–21, 243, 247–51Google Scholar; Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953), 202–51Google Scholar; and Goldwin, Robert A., “John Locke,” in Strauss, Leo and Cropsey, Joseph, eds., History of Political Philosophy, 3d ed. (Chicago: University of Chicago Press, 1987), 476Google Scholar.
21 Walzer, “Liberalism and the Art of Separation,” 315, 324; Creppell, “Locke on Toleration,” 201. See also Grant, John Locke's Liberalism, 48–51.
22 Myers, Our Only Star and Compass, 20–21, 107–11, 149–55; Zuckert, Launching Liberalism, 148–49, 162; West, “Nature and Happiness in Locke.”
23 Aristotle, Politics, 1255a3–a20; Goldwin, “John Locke,” 484.
24 Myers, Our Only Star and Compass, 168–69, 179–226; West, “Nature and Happiness in Locke.”
25 The following discussion relies substantially on insights from Zuckert, Launching Liberalism, 146–68; Jaffa, Harry V., A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, MD: Rowman and Littlefield, 2000), 121–52Google Scholar; Mansfield, Harvey C. Jr., Taming the Prince: The Ambivalence of Executive Power (New York: Free Press, 1989), 68–71, 91–118Google Scholar.
26 Waldron, Jeremy, “Locke: Toleration and the Rationality of Persecution,” in Mendus, Susan, ed., Justifying Toleration: Conceptual and Historical Perspectives (Cambridge: Cambridge University Press, 1988), 61, 64–67, 80–82CrossRefGoogle Scholar.
27 See Zuckert, Launching Liberalism, 190–97, 323–26; Myers, Our Only Star and Compass, 190–96; and Tarcov, Locke's Education for Liberty, 8, 209–11.
28 See Tarcov, Locke's Education for Liberty, 5, 209–11; West, “Nature and Happiness in Locke”; Walsh, Mary B., “Locke and Feminism on Private and Public Realms of Activities,” Review of Politics 57, no. 2 (Spring 1995): 251, 261–62CrossRefGoogle Scholar; and West, Thomas G., “Vindicating John Locke: How a Seventeenth-Century ‘Liberal’ Was Really a Social Conservative” (available online at http://www.frc.org/get.cfm?i=WT01F1&v=PRINT)Google Scholar.
29 See Aristotle, Politics, 1252b27–1253a38; Aristotle, Nicomachean Ethics, 1155a22–28, 1167a26–30; Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 23–32Google Scholar; Nozick, Anarchy, State, and Utopia, 28–33, 300–304; Sandel, Michael J., Liberalism and the Limits of Justice, 2d ed. (Cambridge: Cambridge University Press, 1992), 9–14, 60–67Google Scholar; and Koppelman, Andrew, Antidiscrimination Law and Social Equality (New Haven, CT: Yale University Press, 1996), 181–205Google Scholar.
30 From this paragraph until the end of this section, my argument has been informed substantially by Myers, Our Only Star and Compass, 123–29, 196–97.
31 See Aristotle, Nicomachean Ethics, 1155a20–b1.
32 See Grant, “Locke's Political Anthropology and Lockean Individualism,” 59–60.
33 See TT I.58–59; Myers, Our Only Star and Compass, 126; and Creppell, “Locke on Toleration,” 213–16.
34 Here, “noninjurious” is a term of art meant to exclude acts that threaten harms the public may properly protect against, to be sketched in Section VI.
35 See McGowan, David, “Making Sense of Dale,” Constitutional Commentary 18 (2001): 121, 125, 157Google Scholar (discussing Boy Scouts of America v. Dale, 530 U.S. 640, 648–53 [2000]Google Scholar).
36 See Dale, 530 U.S. at 649–50; Roberts v. United States Jaycees, 468 U.S. 609, 617–23 (1984)Google Scholar; and ibid. at 634–646 (O'Connor, J., concurring in the judgment). Here and henceforth, I use judicial opinions as expressions of conventional political wisdom, to show how contemporary political opinions contrast with Locke's. I do not cover the many legal issues that would need to be addressed before determining whether each of these cases was correctly decided as a matter of constitutional law.
37 See Dale, 530 U.S. at 648; Roberts, 468 U.S. at 623.
38 Koppelman, Antidiscrimination Law and Social Equality, 1.
39 I thank Eric Miller and Andy Koppelman for encouraging me to make this point explicit.
40 Locke, Epistola de Tolerantia, 122. For Popple's translation, see LT 40–41.
41 See TT I.59; Davis v. Beason, 133 U.S. 33, 342–43 (1890)Google Scholar; Reynolds v. United States, 98 U.S. 145, 164–64 (1879)Google Scholar; and Horn, Groups and the Constitution, 24–25.
42 McCreary County v. American Civil Liberties Union, 545 U.S. 844, 860 (2005)Google Scholar (quoting Epperson v. Arkansas, 393 U.S. 97, 104 [1968]).
43 Dunn, “The Claim to Freedom of Conscience,” 180–82; compare Zuckert, Launching Liberalism (suggesting that Locke's rationalism and skepticism undermine general public respect for Christianity and encourage deism and agnosticism) with Myers, Our Only Star and Compass, 46–50 (reading Locke as concluding that human faculties point toward the existence of God, even as Locke rests the grounds of human obligation on rationally knowable foundations). For examples of American cases upholding anti-blasphemy laws in the face of constitutional challenges on similar grounds, consider Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824)Google Scholar; and People v. Ruggles, 8 Johns. R. 290 (N.Y. 1811)Google Scholar.
44 See ECHU I.3.6; RC 243; and Waldron, God, Locke, and Equality, 224–26, 235.
45 Here Locke contradicts the position he took in his 1667 “Essay on Toleration,” in Locke, John, Political Essays, ed. Goldie, Mark (Cambridge: Cambridge University Press, 1997), 134–59Google Scholar. In the text, I also contradict and correct an error I made in Claeys, Eric R., “Justice Scalia and the Religion Clauses: A Comment on Professor Epps,” Washington University Journal of Law and Policy 21 (2006): 349–58, 355 and n. 28Google Scholar. See Waldron, God, Locke, and Equality, 218–23.
46 See Jaffa, New Birth of Freedom, 30–72; Chesney, Robert M., “Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic,” North Carolina Law Review, 82 (2004): 1525Google Scholar.
47 See 18 U.S.C. sec. 2385 (West 2007); Yates v. United States, 354 U.S. 298 (1957); 18 U.S.C. sec. 2339B(a)(1) and (g)(6) (West 2007)Google Scholar; and Chesney, Robert M., “Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by Association Critique,” Michigan Law Review 101, no. 6 (2003): 1408, 1432–52CrossRefGoogle Scholar.
48 See United States v. Robel, 389 U.S. 258 (1967)Google Scholar; Keyishian v. Board of Regents, 385 U.S. 589 (1967)Google Scholar; Elfbrandt v. Russell, 384 U.S. 11 (1966)Google Scholar; Noto v. United States, 367 U.S. 290 (1961)Google Scholar; Scales v. United States, 367 U.S. 203 (1961)Google Scholar; and Cole, David and Dempsey, James X., Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security (New York: The New Press, 2002), 153–55Google Scholar.
49 Keyishian v. Board of Regents, 385 U.S. 589, 605–6 (1967)Google Scholar; Abrams v. United States, 250 U.S. 616, 630 (1919)Google Scholar (Holmes, J., dissenting); Alexander, Larry, “Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism,” Journal of Contemporary Legal Issues 12 (2002): 625–30Google Scholar.
50 See Jaffa, Harry V., Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC: Regnery Gateway, 1994), 329–42Google Scholar; Jaffa, Harry V., “On the Nature of Civil and Religious Liberty,” in Jaffa, , Equality and Liberty: Theory and Practice in American Politics (Oxford: Oxford University Press, 1965), 169–89Google Scholar; and Marshall, John, “Report of the Minority on the Virginia Resolutions,” reprinted in The Founders' Constitution, ed. Kurland, Philip B. and Lerner, Ralph (Chicago: University of Chicago Press, 1987), 5: 136–39Google Scholar. For examples of national anti-sedition policies that worked relatively effectively, consider Loewenstein, Karl, “Legislative Control of Political Extremism in European Democracies, I and II,” Columbia Law Review 38, no. 5 (1938): 591–622 and 725–74CrossRefGoogle Scholar. Loewenstein suggests that many European democracies during the interwar period effectively suppressed fascist and socialist parties until they were conquered by Nazi Germany and the Axis. If Loewenstein is correct, these countries' internal policies toward seditionists were effective regardless of whether the countries could be overwhelmed by superior external force.
51 Dewey, John, Liberalism and Social Action (Amherst, NY: Prometheus Books, 1999), 27, 35Google Scholar.
52 Ibid., 35.
53 Koppelman, Antidiscrimination Law and Social Equality, 181; Nozick, Anarchy, State, and Utopia, 30–33, 299–306; see Koppelman, Antidiscrimination Law and Social Equality, 181–90, citing Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990), 55.
54 See Putnam, Robert D., “E Pluribus Unum: Diversity and Community in the Twenty-First Century,” Scandinavian Political Studies 30, no. 2 (2007): 137, 146–59CrossRefGoogle Scholar.
55 See, for example, Koppelman, Antidiscrimination Law and Social Equality, 57–76; and Dworkin, Ronald, “Reverse Discrimination,” in Dworkin, , Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 227–28Google Scholar.
56 See Epstein, Richard A., Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992), 13–143Google Scholar; Days, Drew S. III, “Reality,” San Diego Law Review 31, no. 1 (1994): 169, 170–80Google Scholar; McAdams, Richard, “Epstein on His Own Grounds,” San Diego Law Review 31, no. 1 (1994): 241, 249–64Google Scholar; Issacharoff, Samuel, “Contractual Liberties in Discriminatory Markets,” Texas Law Review 70, no. 5 (1992): 1219, 1225–34Google Scholar; and Verkerke, J. Hoult, “Free to Search,” Harvard Law Review 105, no. 8 (1992): 2080, 2088–96CrossRefGoogle Scholar.