Kendall on Locke on Majority Rule, (With Some Blackstone, Adam Smith, and federalism.)

Regular readers know that since the latter stages of my PhD, I have had the good fortune to receive ongoing instruction in the history of economics and (this is the controversial part) thereby in the history of philosophy by the creative economist, David M. Levy (George Mason). A few months ago he alerted me to the significance of Willmoore Kendall’s book on Locke (1941) [1959] John Locke and the Doctrine of Majority Rule. (Kendall had been a student of Collingwood at Oxford.) Kendall plays an important role in the founding of the National Review (Buckley was one of his students at Yale). It’s a common assumption that when he wrote the Locke book Kendall was not (yet) a conservative. (I won’t challenge that below.)*

I usually make it my business to read what Levy recommends. Wikipedia describes the Locke book (correctly) as follows:

His 1940 Ph.D. dissertation provided a unique view of John Locke. Kendall saw him more as a proto-democrat who would approve of societies governed by majority rule, rather than an individualist who wished for an aloof government as was the more common consensus view.

For Kendall Locke is neither a natural rights theorist nor the friend of bourgeois property rights (nor the intellectual architect of English mercantile imperialism). Kendall’s main intellectual target is Lamprecht’s The Moral and Political Philosophy of John Locke. (Lamprecht is now wholly forgotten, but I blogged about his historiographic significance half a year ago [here].) Some other time I wish to return to their debate. Here I just want to give a sense of Kendall’s main argument (without defending it).

Now, first, Kendall’s interpretation is built on Locke’s account of power. This is, recall:

Sect. 3. POLITICAL POWER, then, I take to be a RIGHT of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the commonwealth from foreign injury; and all this only for the public good. Second Treatise, Chapter 1, section 3

Kendall glosses this as follows: “the truth of the matter is that Locke did not “begin” with individual in a state of nature, but with a definition of political power so authoritarian and collectivist in its bearing that no genuine individualist (e.g. Rousseau) could conceivably accept it.” (p. 66; this is the Rousseau of the Discourse on Political Economy, presumably, and, as Kendall insists (p. 83), Lettres de la montage.)

If Adrian Vermeule were really a common good constitutionalist (and not an integralist) he would quote this passage ad nauseam as the framework for his interpretation of the American constitution. (He could then beat the so-called originalists at their own game.) For Locke even the preservation of property is subservient (that’s how I read the “all this only”) to the public good.**

The next, second, main step in Kendall’s argument is his privileging of VIII.95: “When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.” (p. 113; Kendall cites the correct section but puts it in VII.) It’s crucial for Kendal that this “right to act” is the same right mentioned in I.3, “the RIGHT of making laws with penalties of death,” (etc.) in the service of the common good. Crucially, for Kendall whatever “inalienable rights” of the individual are, they must be compatible with the public good of her society and “designated” so by the “majority.” (p. 113)

This reading is far removed, of what is now standard Locke. I admit I have some sympathy with the idea that real John Locke is far removed from the originator of liberalism that he was made to be rather late in the day. And while I am agnostic on the details of Kendall’s position, I do think Kendall’s reading is much closer to the historical Locke than our father of liberalism (warts and all) Locke.

For example, when William Robertson (who together with Smith coined the modern use of ‘liberal), the Scottish historian, read Adam Smith’s Wealth of Nations, he wrote Smith the following:

“You have formed into a regular and consistent system one of the most intricate and important parts of political science, and if the English be capable of extending their ideas beyond the narrow and illiberal arrangements introduced by the mercantile supporters of Revolution principles, and countenanced by Locke and some of their favourite writers, I should think your Book will occasion a total change in several important articles both in police and finance.” (emphasis added.)---William Robertson, letter to Adam Smith of 8 April 1776, Smith’s Correspondence, p. 192

Robertson clearly treats Locke as the target of liberalism he shares with Smith. This is, in part, a question of economic doctrine (liberal vs mercantilism), but for Robertson nor for Smith this wasn’t merely a matter of economics (it was a whole set of contrasts between war/imperialism on one side and peace the other; the spirit of monopoly vs free trade). The Revolution he has in mind is the so-called Glorious one of 1688. And this also suggests that at root the difference is one of political theory. That is, Robertson discerns in Smith a rejection of Lockean political principles. Kendall’s interpretation of Locke makes this intelligible because (as I shall argue another time) Smith’s political philosophy rejects both of the steps Kendall attributes to Locke. (We don’t learn what Smith thought of Robertson’s interpretation of his political project.)

Be that as it may, Kendall’s own contextual argument goes through Blackstone’s Commentaries (p. 97 note 22). Kendall quotes the material that I reproduce from “the principles of Mr. Locke” onward. In context, Blackstone is discussing “instances, wherein the parliament has asserted or exercised this right of altering and limiting” the hereditary succession of the crown. I quote:

But, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new era commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the English history. In particular, it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. They held that this misconduct of king James amounted to an endeavour to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of Mr Locke[a]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity.

Here Blackstone’s explicit cites section 19 (which is in Chapter III of the Second Treatise). Now, unlike Robertson (and Smith), Blackstone does not treat Locke as the theorist of the Glorious Revolution. Rather, Locke is classified with the “wild extremes” and even among the “zealous republicans.” And indeed on Kendall’s reading, for Locke the people would have and always are, in the absence of sovereign power, been “at liberty to have erected a new system of state.” (For Blackstone, by contrast, “the constitution was kept intire.”)

This is all I wanted to say today about Kendall’s Locke. But I do want to alert the reader to a further thread lurking here. We know that Smith (who had a law degree) read Blackstone. (He even cites him in the Wealth of Nations twice.) And I want to suggest that the idea that the non-trivial changes of 1688 were in accord with “the spirit of our constitution” stuck with Smith. For when he proposed his own federal parliamentary union (which involved taxing the colonists), he put it in these terms (emphasis added): “This, however, could scarce, perhaps, be done, consistently with the principles of the British constitution, without admitting into the British parliament, or if you will into the states-general of the British Empire, a fair and equal representation of all those different provinces, that of each province bearing the same proportion to the produce of its taxes, as the representation of Great Britain might bear to the produce of the taxes levied upon Great Britain.”

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* In what follows I quote from the Kesinger Legacy Reprint of the 1959 University of Illinois edition.

**For Kendall the state of nature is a device for Locke “to provide himself with a locus standi from which to survey societicies in which such power exists.” (p. 66) This interpretation is defended in chapter V of Kendall’s book.