The name of the book we will be talking about is the the political theory of the american founding, natural rights, public passly and the moral conditions of freedom. Thanks for being here and the recent book seminar. Before we summarize what the book is about, let me ask you what the origin of this the pack was and how it fits within your larger academic agenda . Right. This is a topic, the political theory of the founding that i have been thinking about since about 19 3, so name the date, when i was invited up to a conference to write on a topic of that is correct the relationship between the founders and the classics. A topic about which at the time i knew nothing on either side. I knew something about the classics, but not about the founders. I recognized the thought of the founders is more complicated and more interesting as a student of plato, more so than i expected. It has taken me a while to develop fully my understanding of the founding. I hopefully have presented it in this pick. Why do you choose to write books as opposed to articles . Well, i have written some articles over the years. In political science, i would say that if you want people to say that you are somebody in the field who is work looking at it, you kind of have to write a book about it. Is there any particular challenge in doing a book like this from a research or writing standpoint . The most difficult thing was just to figure it all out. It turns out to be a pretty complicated subject, and it took me a while to learn. I did a book on the founding 20 years ago that issued contrast with this one, vindicating the founders, which sold a lot for a founding book. It was directed against various liberal critiques of the founding. A kind of defensive pointed. Part where they had both misunderstood the founders, or in some cases they hadnt misunderstood, and the founders were still defensively. That is the kind of book at least in Academic Circles tend to be dismissed. I came around to the idea of having to write an actual book. One of the student comments i read was that i make a passionate defense of the founders view of morality. What i tried to do was make a passionate defense that the founders cared about morality, in defense of the scholars who said no. I tried to remain relatively neutral about what i thought of the founders, although it probably came through that i liked a lot of what they said. But the book is not about that. It is not a defense. It is a description, and that took a while. What especially took a while, and it took me a long time to under, was the political theory of the founding requires a series of policy of policies that went way beyond anything that my teachers and most of the scholarly literature talked about. Everybody talks about the structure be, the structure of that. People talk about freedom of speech, slavery as topics where the theory of founding has something important to tell us about policy. But beyond that, there is a lot of things that government does beyond that at least that i realized scholars havent discussed what others do. Once i began to look at it through this idea of the founders overall concern being to secure the rights of the individual as their overall objective, the purpose of a lot of these policies fell into place in my mind. I could see better what was going on in terms of why those policies were adopted and implemented. Lets close the door so we dont get the noise in here. Why dont we turn to the thesis of the book . Maybe the best thing toe dough to do to start off with the academic premises you are challenging. One is under liberalism, and the other is republicanism. Attribute republicanism to the founder era. Maybe we can start by your explanation of just what is normally meant by liberalism, and what is normally meant by republicanism. These are two terms that dont correspondent to the way people think about them. It is a label about a tradition of thought that is oriented toward protecting individual rights. People who use the label liberalism to describe the natural right theory, which is often traced to people like john locke will argue that that it is a somewhat selfish theory of government. It is the idea that government is there to serve the interests of the individual without much concern for the common good and the overall good of the community. Tribalism in the scholars vocabulary often means Something Like that. Republicanism doesnt mean that in the scholarship view. It means a way of thinking about politics in which the citizen is primary understood in terms of his duties to the Larger Community as opposed to his private individual rights. So the reason why scholars tend to claim that republicanism and liberalism are at odd with each other. The thought of republicanism is one toward the common good over the individual. Part of governments job is cultivating the orientation of the good toward the community and to some degrees at the expense of the self. Those are the traditions. This all got started in the 1960s, starting with gordon woods big book on the founding in 1969. He made the argument that the 1776 founders were essentially republicans in this sense of the word, common got oriented. And in his book he has the astounding phrase, ideally, republicanism obliterated the individual. That is a quote from that first book. Wood saw republicanism as almost the enemy of the individual and individual rights. That is a position that he modified later. Many scholars who follow him think about this way of thinking of the founding attractive. They want to make the case that that is really what it is all about. Then you have the other scholars who kept bringing the older idea of individual rights back that had always been around the idea of individual founding. That continued to be asserted and sometimes asserted against the claims of the republican thesis the current prevailing view in academia is this idea of an amalgam of multiple traditions are to some degree at tension with each other. It is primarily that thesis, the amalgam thesis which i am challenging in this book. Here i am arguing very much that the natural rights and natural law theory of the founders very much focused on the individual, is the lends through which all Public Policies were understood in the founding, including those policies meant to cultivate citizen virtanen and dedication to the common good. That is my somewhat unique take on the founding. It can be summarized that way. So virtanen plays an Important Role in presentation. The first part of the book tries to substantiate the claim that natural rights were founding political theory. Then you move on to a substantial discussion of virtue or morality. What necessary meant by that is unless people have a disposition in their orientation and rabbits, a respect for rights, and at least to some degree a willingness and ability to perform their basic minimal moral duties in society, no matter how well organized the legal system might be that is meant to secure private right, it will not succeed because the public itself will not be willing to continue to vote and support policies that enable those rights to be protected. The common formulation was in a republican form of government based on consent, virtue is needed more than any other form of government, because in a republic, the people themselves pick the rulers. So if the people dont have basically good sense and basic attitudes of restraint and respect for each others rights, they will be putting people in office who will end up exploiting some citizens at the expense of others. I said benefiting some citizens at the expense of others. That is what i meant to say. So you need to have some minimal degree of those qualities of selfrestraint and selfassertion. You need to be able to fight and have those qualities as well. That is a summary of how they understood that relationship. Just as a warning, i am going to open it up to questions and comments soon. But let me ask a bit of a critical question at this point. In your discussion of virtue or morality, there is a bit of an ambiguity there, and i am not exactly sure which side of the ambiguity you are on. The public virtue would be what you just talked about, and that is the virtue of justice, the virtue of following the law, the virtue of respecting the rights of others, adhering to the duties that you would owe others with respect to their natural rights. That is really the evidence that you present, and most of what you discuss goes to that kind of virtue. That is actually consistent with what you just said, the precondition of a natural right republic would be people feel obligated to respect the rights of others. Then there is the noigs that we could call today maybe private morality, which is sort of moral behavior behinded closed doors. How you treat other people, who you sleep with, how much alcohol you consume, these sorts of behaviors. Now some of these practices were subject to laws at the time of the founding. They also could be characterized as relating to virtue, but virtue in a different sense. Virtue in the sense of guidelines for how you live your life. Guidelines for how society should be structured. Even though the book ask address that, and there were laws that were enacted at the time of the founding about that, they werent very well own forced. I am wondering how many of your thesis or evidence is about the first kind of virtue or first subset and how much is about the second subset of virtue . That message didnt come through the book as clearly as i might have wanted . That is a good question. The first what you are calling public virtue was i think the most urgent kind of virtue for government to Pay Attention to. For example, it seems reasonable to say it is part of virtue to respect the life, liberty and property of others from the point of view of the founders. So part of the way that kind of virtue gets taught is through the penalties of the criminal law, or in terms of private wrongs, through the civil law. You can teach people by whacking them legally. That one as poke of it. With respect to private virtues like hospitality, politeness, generosity, these were talked about things that governments should foster. The massachusetts constitution speaks to that. The thought there is that these are things that are beyond the law. You cant have laws about being polite and civil. But that is something of interest to government because people do need to be able to get along in private life. If the founders were around right now, they might point out the fact that americans today often really seem to have a hard time just getting along day to day with each other without getting into all kinds of irrational quarrels that are often destructive to their own happiness and that of the people around them that they love. So it can become a mat other of interest to the public that way. Then there are those virtues that have to do with sex and marriage that they thought were of importance to the public above all because of the importance of children po public life, not just private. Because children are future. They are not yet able to selfgovern. Something needs to be done to try to make sure as best as possible that their interests will be taken care of. Their idea was well, that is it why you need to have a married mother and father. Ideally theory biological parents. They thought that was the best arrangements. Therefore, they had a series of laws promoting that. On the other hand, private sexual activities that deviated from that norm typically was outlawed, but if it didnt come to Public Notice or was not in any way seen, no one seemed to Pay Attention to it. There is little prosecution of sex outside the marriage in founding unless a child was conceived. Then it got to be important to the public because somebody is going to have to pay for that if there is no father around. I think that is how they saw the connection between the importance of the two types of virtue. Great. Question . I went through it again, and it does have it is a very strong theory. My only issue with it is there are some aspects of the book which you lead or at least it seems to me. The issue of equality and slavery. You do say that the founders put into motion certain mechanisms which basically led to emancipation later on. It is a Frederick Douglas sort of read. It glosses over the fact that there was a law two it. There is no sense of equality for black slaves in any meaning sense at that point. There are certain aspects which i am sort of not so what you have to sort of say about Something Like that . I tried to treat the race question from two points of view. One, slavery, which is the most obvious and massive contradiction with their own principles because of the fact people are born with a right to liberty. There is no way you can get around it. That is a violation of the right to liberty. And then on the other side, how free blacks were treated in the law. There what has to be understood and what i found that liberal scholars are better at pointing out than conservative ones, they were not really part of the nation until the civil war, the 14th amendment. Free blacks had an obscure, excusing citizen status. Sometimes in the law they were called denizens. They often had limited Citizen Rights or none in some cases. There is a passage in the fred scott case where the chief justice correctly says look, if these blacks are treated as citizens, these free blacks, we have to give them Citizen Rights, like the right to keep and bear arms, the right to have public meetings, the right to freedom of speech in the press, the right to go and travel wherever they want at all times. His statement was we cant have that. That was the precivil war view among probably a majority, especially after the 1790s. Burr that is a fact of life in america which has to be understood. I touched on that briefly. I didnt get into it deeply, but that was there. My point, however, about that is citizenship for blacks or for really any group was always a possibility under the founders political theory, because the theory itself was not racial in its nature. It was about humanity, human rights, not white rights or any other group. So the post civil war settlement was always a possibility, by which i mean the post civil war settlement, meaning the now liberated blacks will have full Citizen Rights, including voting rights. That was always possible. It wasnt desired before the civil war. And to some degree, their exclusion from citizenship was justified by their political theory, which was that you have a natural right to liberty, but not a natural right to become a member of a particular political order. That is why colonization was always a big topic among precivil war americans who were talking about the slave problem and even the free black problem. That was the view that was probably most often held among the most highly educated americans from the time of the founding to the civil war. Just to be clear what colonization is, the policy of colonization would be to repatriate african slaves to africa, where there would be established colonies for them . Yes, to africa. That was why lyberia was set up. Later there was an idea that maybe central america. Lincoln had a plan to buy part of panama from colombia, and they would get the northern part of panama. He also got congress to fund a plan where he was going to purchase an island off the coast of haiti, and he had a delegation of blacks in the white house saying look, you should start on this project and set the example for your fellow blacks. We need to have separation. That was the view. That was out the window by the time you get to the 14th amendment. That 14th amendment solution wasnt the one the founders chose for whatever reason. But they didnt choose that. We today would say that was terrible, that was unjust and so on. They felt like well, it is unjust in so far as we dont allow them to have a country of their own, so we should do something about that. There so was some injustice. Is that you are getting at . Yes. On page 267 you said there was nothing in the founders principles that required a onerace society. Yes. But i mean that is what i was going at just now. I guess i am failing to see how even the idea of colonization wouldnt prove that idea to be incorrect . What i am saying is from their point of view, whether or not free blacks would become part of the United States as fellow citizens or not was a decision that didnt touch on the question of whether they had natural rights or not. The founders view was unquestionably, they are born free, and they have a right to liberty. But at the same time, most of them thought we dont want to have an integrated society. We dont want to have a multiracial society. We want a society that was predominantly european. That was the view that prevailed up to the civil war, which is what led them to think that well, we can just keep them here, ruling them without their consent. That is a violation of their rights, too, even though they are free. Free blacks. So we need to find some place where they can live as a free people. It is not going to be here though. So that is how they viewed it. They viewed the Citizenship Question as separate from the natural rights to liberty question. I think today we have a hard time accepting there is any validity to that distinction. They were living here in america. Where were they supposed to go . There wasnt any place for them to go, practically speaking. And the efforts towards colonization one could say retrospectively now, were too little and even probably somewhat insincere in a sense. Not much effort was really put into it one could argue today. Too many people were doing too many other things. One of the things maybe didnt stress in the book. I have a whole chapter on this topic. What i emphasized there was sheer selfishness played an Important Role here. They are, and they always will be. Part of the reason slavery continued to exist was people who owned slaves wanted to keep owning slaves. It was convenient for them to have that. You work, i eat. As lincoln summed it up. A great proportion of their wealth was bound up in their slaves. If their slave property was abolished, overnight they would go from some of the wealthiest people in the count to some of the poorest people in the county because of the way their wealth was bound up . Sure. So that doesnt tend to feed ones self interest to a point. The theory of the founding is a theory, how politics ought to be. The question of leading up to that theory is a separate one. A quick follow up. That was actually something i wrote in my crilt eek as well. I understand that the book was more theory based, but i was just wondering why you didnt spend maybe a chapter or some part of the book talking about how the founders themselves lived up to the theory they were trying to i guess establish for the country . Why didnt i talk about individual founders and their treatment of slaves and blacks and so on . Yeah. I made a decision early on that this book was going to be a book about the consensus that was reached in the founding, the consensus that became politically effective, which was also articulated in the fundamental documents. Which meant that i was careful to not get distracted by individual differences among the founders and the way they lived their personal and private lives. For the purposes of my project, it is completely unimportant whether jefferson did or did not sleep with sally hemmings. It just doesnt matter to me. What matters is what was jeffersons contribution to what happened in the founding and his personal view probably had some influence on that but he wasnt the only one. He was one of a large number of people who created these events and created the nation. So i have made an exception to my general rule in the chapter on hamilton and jefferson where i did go into the 1790s historians think it is so important and its not as important as you thought it was. I do think that the fact that the founders didnt always necessarily carry their natural rights through to the final logical conclusion may have some effect and i think through the book you characterize several modern day policies as being inconsistent with the founders natural rights theory. Whether they are or not is less interesting to me than the tension that arises with perhaps these modern day policies, in fact a response to the consequences of the founders not living up to the logical conclusion of the natural rights theory with slavery being the most obvious example. And how would you respond to that and how that affects the am cabblet of the natural rights theory applicability for todays policy . Another one of these fascinating questions i tried very hard to stay away from. Not always successfully i admit. How did we get from there to here . Yeah. And to what extent were they responsible for some the things still going on here . Yeah. When i brought up these contrasts with the contemporary scene, i was mostly trying to mostly did it as a way of showing how were different now. How we have a different view of justice now. Not so much why we have a different view. But we do. I think the contemporary understanding of what justice is, which of course places a huge amount of weight on the race question, much more than they did, is thats a difference. That is something new. I mean, if i could just say one thing about the contemporary understanding here, the view that has prevailed since the 1960s in america and again ill widely over generalize just as i did about the founders, but since the 1960s weve had the view that justice consists first of all of being able to live your own private life however you like in terms especially of Sexual Activity and, secondly, that there is a fundamental moral obligation for there to be a transfer of resources and transfer of honors and respect away from those groups that have traditionally had those things to those groups that have traditionally not had those things. That of course is understood very largely in terms of groups that are easily identifiable by their appearance, like race and sex. So the idea that has come to prevail is that if youre nonwhite and nonmale, that you are owed something more by government as a way of equalizing or making up for what was the case in the past. And which, that means that you have to move away from the idea of simply everybody having the same private, individual rights enforced on the same level basis toward the other view that you groups are to be viewed in terms of their degree of success or their degree of oppression or their degree, Something Like that. And then you have a specific government response that differs from one group to another. Weve come to accept that. And i didnt want to be judgmental about that, but, clearly, the older view, the founders view is very different from that. But anyway, i mean, i do have opinions about that. Maybe we should just talk about the book a little more before we speculate on what happened in the last 250 years. James . This actually takes us back a little bit to the book. And my paper had been about this and maybe not as well articulated as ill say it now but well see. You are saying there is a connection between when private conduct leads them to say Public Interest such that the government can use laws to regulate private conduct. The question in my view would be, is that principle one that is ultimately defensible, maybe government shouldnt be really getting into morals legislation at all. I think one line of argument would be it produces ultimately a precedent supporting later comstock laws and highly invasive government techniques through the 19th century. Im also aware the conflicting view is at some point what isnt moral conduct . I know scalia and i think in roemer in his dissent calls murder a moral judgment by society to do away with that or bestiality for example. Yeah. So i took that view of morality you just attributed to scalia in i think my first chapter on morality where i said everything government does is about enforcing morality in a sense, in the sense it takes a view of whats right and wrong and punishes the wrong and whats, what it regards as right or innocence, ok. Let it go. And so there is that. As for the late 19th century i had a brief comment on that in my chapter on marriage in which i pointed out the kind of strict morals legislation that prevailed in america starting in the 1880s and 1890s and up to about the 1960s was different in character from the kind of moral regulation that existed prior to that time. Largely in terms of its strictness. People in the progressive era began to have much Higher Expectations of human nature than the older, than founders did. And they thought government needs to be much more involved in and regulatory toward private life than was thought to be the case in the precivil war period. If you look at some of the progressive theorists of that day, people like woodrow wilson, theodore roosevelt, they were much more willing to say, lets get away from the distinction between the public and the private sphere. Lets get away from the idea there is a private sphere government is suppose today protect and otherwise leave alone. The progressive view was that is a very stunted and low understanding of what government should do. So in response to you i would say that there really was a new understanding of the role of government and the expectations of human nature that came to prevail in that period after the civil war in cop contrast to the earlier. I think you mentioned this earlier, too, randy, that i couldnt find examples of people who were prosecuted for being gay. Which i kind of was surprised about. I thought there would be a lot, be something, at least, somewhere. I found one example of a homosexual what would have been considered a homosexual rape at the time. Under age boy who had been seduced by an older male. Thats it. And which is striking since all the states had rules and laws against that. It seems that these things were thought you know, the same thing with regard to other crimes. Crimes like adultery was criminalized. You just didnt find prosecutions very often. It was rare. I think that feels the attitude. The attitude was if its behind closed doors and not creating a problem for the public, a big problem for the public, we should leave it alone. Its not really governments role to be overly preoccupied with the details of private life. Also prostitution was much more tolerated prior to the 1880s. It was a decades long crusade against the social evil starting in the 1880s and that is what it was called. Prostitution. All kinds of energetic programs instituted. It just wasnt done earlier. Yeah. We shouldnt have that but lets not get too preoccupied with it. Did you find anybody actually articulating that view . I dont think there is an example of that in your book. No. I didnt. I dont think i did. One of the researchers i relied on in that chapter has has a book, i forget his name but he has a book on this topic of sexual regulation and the founding, and he had lots of other examples besides the ones i found of the laxty of enforcement. He didnt, i dont recall him coming up either with anything where people said as a matter of policy were just going to leave certain things alone. It was the consensus that consisted at the time which both he and i were struck by as something that was noteworthy to that period and very much in contrast to the later period. Lawrence freedman has a book on the history of law which i also found helpful. Some nice quotes from some of the earlier laws and later laws and the enforcement practices with regard to sexual morality. So, yeah. I dont have good quotes on Something Like that. But it seems to have been a phenomenon acknowledged by historians of the subject of whom there arent a huge number but theyre out there. The last visitor to the seminar is jeff stone who has a new book out called sex and the constitution. It is kind of reassuring that despite whatever political differences you might have with professor stone on this particular topic your books, what youve just said, are perfectly consistent. This was, and you have some minor disagreements with him throughout the book on some of his articles that he wrote. On this particular subject i think it is fair to say because weve all read that book that your findings are completely consistent on the lack of enforcement. On the other hand he also and i dont understand he also didnt volunteer anybody who articulated the view that were going to leave the stuff alone, only that they tended to leave the stuff alone. So you guys converged on the same empirical result. The situation in the post 1960s era with regard to laws against sodomy is parallel. At a certain point somewhere in the 1960s or around that time a consensus emerged and you can find discussions in private literature, private publications, but probably not so much among Public Officials but the consensus was lets just stop messing with this. You know, the general idea of maybe we should just leave these people alone. Maybe what theyre doing is just fine, too. You know, since the post 1960s. So it took a long time before the Supreme Court got around to talking about it but those laws were pretty much of a dead letter for sometime for several decades before the lawrence case came down. Heading in a slightly different direction i have two questions about your articulation of the founders view on the separation of church and state. It seems that in the race portion you separate out the ideological view of the founders from their pragmatic and personal policies. Whereas it seems you dont necessarily make that separation when it comes to religion and so far as we do have the constitution, which has the establishment clause and we do have jefferson and madison articulating their desire for church and state but when you discuss their sort of capitulation to the existence of biblical readings in school and public prayer, you use that as evidence that they didnt firmly hold a true belief of separation of church and state. So i was wondering if you could explain sort of the operational difference that justifies that reasoning. What i meant to say was somebody like madison probably was on the extreme separationist end of the spectrum in that period. Madison seems to be the one leading founder who was the most dubious or hostile to any form of Government Support of religion. And he doesnt say a whole lot about that in his public writings or even in his private letters. He is very cautious on the subject of religion. But he does seem to have held that view in some of his private notes left behind when he died indicate that. Jefferson on the other hand was simply inconsistent on the subject. Jefferson would say things like, its immoral for government to demand funding to promote a view that a taxpayer doesnt agree with. A position jefferson himself didnt believe for one minute when it came to funding the university of virginia or providing a certain view of government at u. V. A. As the basic doctrine. He even called it orthodox. Lets get orthodox professors, using religious language to indicate government funding of education is going to go only in one direction. That is pro republican government. When it came to religion he then said, oh, no that is terrible. But then the same jefferson, actually in the same book notes on virginia says, if people ever stop believing that liberty is the gift of god, we wont be able to sustain liberty. In that statement, hes basically turning against his own other officially stated position that its a matter of indifference as to whether people do or do not believe in god. As president he was willing to countenance statements he made statements that were favorable toward religious faith, toward christianity in particular. The first inaugural address has a wonderful passage praising the kind of christianity as practiced in america as being exactly the sort of religion we need in this country. And my point about other founders was most of the others were much more willing to support this notion that government can promote religious belief, although it although the way of doing it that was done in new england was mostly not very popular among the other founders. So, for example, direct taxpayer funding of ministers and churches and private life denominationally oriented, that was the new england model. Rejected elsewhere and even in new england it was rejected within a couple decades, a few decades after the founding. However, other forms of supportive religion support of religion other than through public education, that became sort of the norm and a consensus emerged throughout most of the states in the post 1800 period, and sure you had people like jefferson, madison who had some reservations about that, but most people, the majority went with it. And so my argument was, also, not only did the majority go with that view of things, but the majoritys position is defensible in terms of the natural rights theory. And that probably most people today would say i dont believe that. But, you know, my argument which is based on some people in the era, the founding era, is that if Government Funds or promotes religion, it is not forcing you to be that religion, not as long as they allow you to have your religious freedom it can support a decision not every citizen will agree which is the general view of most founders. I guess my problem is jefferson also held this natural rights view which theoretically was supposed to outlaw slavery but he continued holding slaves and that was an inconsistency that i think somewhat mirrored the inconsistency that he had on religion. You also bring up the fact that something that points to the fact that natural law principles would be inconsistent with slavery, the fact those same principles in the founding documents are what contributed to the end of slavery. I guess i think that parallels the establishment clause which the founders put in the constitution later being used to establish a more firm separation of church and state. On the question of slavery jefferson held a pretty consistent position at least theoretically throughout his life which was wrong, it is a violation of natural rights to keep people enslaved, but there is also a question of justice on the other side, namely if these slaves are liberated and then are to be integrated into society, that is going to lead to a whole series of other problems, which could indeed be murderous. And when jefferson said we have the wolf by the ears, we can either safely hold him or let him go, justice on the one scale, selfpreservation in the other. This is a letter he wrote in i dont know, 1820 maybe. Meaning that justice is in both scales. On slavery. That is, its on slavery is unjust but we also would be unjust to have an immediate emancipation that would lead to a race war, which is what he was afraid was going to happen. And they were all of course during that period all very reminiscent of what had happened in haiti after you had the liberation of the slaves there. You know, there was all this very murderous treatment of the races of each other. And there was genuine fear about that. People who believe that, said something about that, yeah, if the slaves are ever freed there is going to be a race war and murderous on both sides. People believed that right or wrong. I think it was a sincere belief. For jefferson there was always this idea of its wrong but we shouldnt end slavery without finding a way to give them a place to live somewhere else. So separation. What you can fault him for, he didnt do very much about that. He stated the problem but he didnt do enough about it. Could have done more probably. One way to understand the founders view on this is for them to project on to the slaves how they, themselves, would feel if they had been enslaved. So its sort of how mad would i be . How angry would i be if what was done, if what was done to me was the same as what had was being done to the slaves and therefore how would i react if liberated . I would just want to kill the people that did that to me. If thats how i would feel then i imagine thats how they will feel. So im afraid of them for that reason. That is one way to understand why they would have thought that about how the slaves will react apart from the other examples of it happening. Evan . Now i have a couple questions. The first question just as a follow up response to that. It seems like youre pivoting between arguing on the one hand that the founders were inconsistent in the way they dealt with slavery. They made a compromise in their natural rights philosophy in part because of selfish reasons in part because they valued other things more on one hand and now youre arguing they were acting consistently with the natural rights philosophy even with respect to slavery because they feared a race war. Because with respect to the founding of the country they were afraid perhaps a couple slave republics would emerge that are even more hostile to natural rights than a regime under which in theory you could bring the Southern States within a regime that would gradually lead to the emancipation of slaves. And i want to first of all flesh out your considered position on that because it seems there is a tension. Why dont we stop on that one, ok . Ok. I can answer that pretty quickly. The answer is both. The founders were inconsistent in their treatment of the problem of slavery insofar as they were willing to say yes it is wrong in principle and we havent had these free blacks here as citizens. They didnt do very much to make good on a solution to that. Which they believed was colon ization. Finding some other place for these black exslaves to live where they could live and have their own society and be the be their own people independently in the u. S. They didnt. They were inconsistent. I agree. At the same time i argue yes. In some respects slavery was justified in their minds by their fear of violent death. I treated it, i dont remember, somewhere i compared it to any other kind of conflict of natural rights that might occur. For example, when jefferson pointed out two ships meeting on the high seas one of which the men are starving the other one the man has plenty. Jefferson says, well, people who are starving have every right to steal the food of the people who are, who have a lot. Property rights are violated. Property rights have to be respected but in situations of urgency and necessity, you violate them. That in that sense one can argue because of that conflict of rights, they were sincere in believing in that, to that extent one can justify the continued existence of slavery. Thats all im saying. I dont want to take away from the selfishness reality, you know, people like having slaves. That is all there, too. You know. One way to understand this theoretically is to appreciate the fact that natural rights theory presupposes a natural harmony of interest among human beings such as the rights are properly defined. Our nature and the nature of the world we exist in would lead to harmonious interest so everyone could exercise their natural rights consistently with everyone elses natural rights and there would be no conflict. If they are all defined properly. That is the natural harmony of interest. That has to acknowledge that is only true under what you would say most circumstances but it is not true under every circumstance. That natural harmony would not exist with the two ships in the ocean, does not exist when the two ships go down and two people are swimming for the same planks to survive. At that point the natural harmony of interest, the Empirical Foundation on which natural rights are erected has gone away. Now it is not possible. There is no natural harmony of interest, only the survival of one who grabs the board as opposed to the other one who grabs the board. So natural rights at that point dont work. Because they work under the circumstances in which thats not the norm. So the truth or falsety of natural rights theory depends on the empirical claim that the norm is such that we can normally live together in peace and harmony if these rights are protected even though we would then acknowledge there are exceptional circumstances. So you have the extreme of the ship wreck and the person in the avalanche or the snowstorm and they come across an empty cabin and have to violate Property Rights to protect themselves, youve got those extremes and then the norm. Then the question is really is this some way of positioning slavery, the already existing practice of slavery in between those two . That somehow that created a conflict they believed to be irreconcileable though had it all been done properly in the first instance it would not have been. In cases like that with emergencies or life boats under conditions of extreme scarcity would make natural rights philosophy do something it is not supposed to do. That is another way of putting the same point. [laughter] ok. If im driving 70 miles an hour in a 30mileperhour zone or transporting ultra Hazardous Materials or i own a machine gun and im firing it in a public park i am not necessarily violating anybodys natural rights. I am however doing something that could be considered to raise the risk and on the grounds that well they havent actually done anything wrong or injurious so we have a regime of expost tort law that will take care of situations like that. It is not at all obvious to me the optimum natural rights regime doesnt involve laws like that. Number one, number two. Suppose. Yes, laws that yeg late unrisky activity and thereby protect people against injury. Number two, suppose i am wrong about that. Say i am a conscientious legislator considering a measure that would restrict the transportation of ultra Hazardous Materials or impose a Building Code or something designed to protect against injury. And i pride myself on my consistency with the founders natural rights philosophy. Can i argue in good faith base onondaga that philosophy for a measure like that even supposing every single founder if you asked them a question about that would come to the conclusion that, no, that is not something you would want to do . I dont think people in the founding ruled out preemptive regulation of the kind you are describing. What they believed was the presumption should be in favor of free use of property, Free Exchange of property. There were regulations from early on making people do things that werent, you know, where there was no immediate injury no process. You had to get a permit to transport dynamite through a town, put lights out on a boat on the river. Precivil war regulations of that type were very common. The entire passage you have listing a series of preventative things you find objectionable and say the founders would have had a problem with the point i was trying to make was that their basic way of thinking about liberty was as a set of guidelines not as mandates that are true in every circumstance. Yes, some regulations along the kinds you are describing obviously hazardous activity taking place in public settings. Was acceptable. But only in a context where most people, most of the time, were not going to be harassed by government over every little thing they wanted to do. They didnt, it was important to them that government stay away from the situation were in now where every little thing that comes up somebody wants to pass a law or regulation about it. There is a difference between a Permission Society where you have to get permission to do whatever you two do in advance and a Liberty Society in which you dont have to get permission in most cases. Yeah. That is the difference. I dont think there is a place where you can draw that line. Look at the overall picture and you can see whether it is being conscientiously followed. Of course you can always make an argument in our time too thats dangerous and why it has to be controlled. No matter how little the danger might be, really, so yes