by Tim Baldwin
I explained in Lesser-Evil Principle Shaped the Constitution how the Founders used the lesser evil principle to form the Constitution. This is hard for some to admit, but the Founders expressed and incorporated this principle plainly. There is no denying it. One who does is only fooling himself.
So, these questions necessarily follow:
Did the founders use an evil principle? If not, then you admit the lesser evil principle is not evil.
If yes, then is our Constitution founded on a bed of evil? If it is, why are lesser-evil rejecters insisting that we “get back to the Constitution”?
Alternatively, if our Constitution is not evil and actually produces good results, then this proves that the lesser evil principle is not evil, should be used in politics and is a principle of Right Reason.
Let’s examine (as briefly as the heavy subject will allow) the origin and nature of the lesser evil principle from the Age of Reason and show why the Founders rightly used it in forming the Constitution and why people are morally bound to use it in all situations of life, not just in preferred situations.
I will show that human nature proves that decisions include a gradation of (real) good and (real) evil, and that man must prevent the greater evil with his decisions. This is not to say that human nature is evil, or that the Law of Nature is evil; rather, the decisions humans must make include gradations of good and evil. This is our state or condition of life.
- Human nature is the origin of all natural law
Man has a nature—human nature—which is the origin of all Natural Law. Burlamaqui put it this way,
The idea of Right, and much more that of Natural Right, are undoubtedly relative to the nature of man. It is from this nature therefore, from the constitution and state of man, that we are to deduce the principles of this science. (Jean-Jacques Burlamaqui, The Principles of Natural and Politic Law (1747), Part I, Chapter I, Section II.)
Natural law is thus defined as, rules of human conduct derived from the science of human nature. These rules account for the fact that human decisions involve a gradation of good and evil. In other words, not all decisions are purely good or purely evil. In fact, most of the time they are mixed, and man must make the best decisions so as to prevent the greater evils from happening.
- Man’s nature requires him to seek his happiness
Rules of natural law have a purpose: man’s happiness. “[M]an in all his steps and actions proposes to himself a scope or end.” (Ibid., Part I, Chapter 5, Section III.) This “end” is his happiness. “[E]very thing he does is with a view of happiness…This is the ultimate end he proposes in all his actions.” (Ibid., Section IV.) What is happiness, according to these philosophers?
By Happiness we are to understand the internal satisfaction of the mind, arising from the possession of good; (Ibid., Chapter 2, Section 1.)
If happiness is “possession of good,” what is “good”?
Good [is] whatever is suitable or agreeable to man for his preservation, perfection, conveniency, or pleasure. (Ibid.)
Therefore, any rule that undermines or contradicts man’s natural end is not a rule conformable to natural law. In other words, “evil” is anything that does not help man achieve his preservation, protection, convenience or pleasure.
- Seeking happiness applies to political happiness
These rules of human nature apply with equal force socially and politically as they do individually. The good of producing happiness is what drives people to create political society, and the Law of Nations is based on this truth.
In order to form a just idea of civil society, we must say, that is no more than natural society itself modified in such a manner, as to have a sovereign that commands, and on whose will whatever concerns the happiness of society.
Principles of human conduct that govern individuals similarly govern political decisions because happiness is the end of both human conditions. Therefore, natural law requires that man make decisions that help preserve the happiness, or good (as defined above) of society.
- To acquire happiness, man must seek truth
If man is to acquire happiness, he must seek truth relating to the rules of human nature. If one does not use right reason, he cannot find truth. This is a universal principle:
[H]uman understanding is naturally right, and has within itself a strength sufficient to arrive at knowledge of truth, and to distinguish it from error; especially in things wherein our respective duties are concerned, and which are requisite to form man for a virtuous, honourable, and quiet life. (Ibid.)
Seeking truth is an objective task, not subjective—thus, the science of natural law. In other words, the rules of human nature must be learned and applied. Otherwise, man will likely apply his inclinations to a given decision, and not reason. This is to err.
- Seeking truth regarding politics requires one to apply science
Some people do not apply Right Reason correctly and thus conclude in error on many topics. So, man is required to “enlighten [his] conscience” (Ibid., Part II, Chapter 9, Section IV) and apply “those rules which nature alone prescribes to man, in order to conduct him safely to the end [of] true and solid happiness.” (Ibid., Part 1, Chapter 1, Section 1.)
The system of assemblage of these rules…is generally distinguished by the name of Natural Law. This science includes the most important principles of morality, jurisprudence, or politics…A just knowledge of the maxims we ought to follow in the course of life, is the principle object of wisdom. (Ibid.)
To apply this science, one must find and apply those principles that conform to man’s nature based on empirical and measurable evidence or on the probability of those evidences being true. Enlightenment philosophers called this measurable evidence demonstrative reasoning. In sum, natural (i.e. political) science is based on the ability to show the truth of the reason through demonstrable results, through absolutes and probabilities.
- Conscience requires using right reason
The principles derived from human nature create obligations on man to act or not act, depending on the circumstances. Philosophers describe this force of obligation as CONSCIENCE. However, the definition of this term is not how some people use it today. It is not passion, inclination, instinct or even religion.
Enlightenment philosophers defined conscience as “the result of perfect reasoning, or the consequences we infer from two express or tacit premises.” (Ibid., Part II, Chapter 9, Section II.) Conscience thus requires man to formulate and use principles based on this nature; that is, Natural Science. Failure to do this is a conscience in error and shirking of duty.
- Right reason equates to God’s will for man
Adding more weight to principles derived from human nature, Enlightenment philosophers found that Demonstrative Reason of human nature equated to God’s design for man. Burlamaqui explains that there are three aspects of natural law which reveal principles: (1) instinct, (2) reason, and (3) God’s will: “[i]t is on all these foundations united, we ought to raise the edifice of natural law, or the system of morality.” (Ibid., Part I, Chapter 7, Section IV.) Simply put, God created human nature, and as such, the rules of human nature equate to God’s will.
[M]an being a creature of God, formed with design and wisdom, and endowed with sense and reason; the rule of human actions, or the true foundation of morality, is properly the will of the supreme Being, manifested and interpreted, either by moral sense or by reason. (Ibid.)
This is the “system of humanity” whereby man should act; meaning, "[t]o reason well on morality, we ought to take things as they are, without making abstractions; that is, we should attend to the nature and actual state of man, by uniting and combining all the circumstances that essential enter into the system of humanity.” (Part I, Chapter 7, Section XIV.)
While one may not like the fact that decisions include gradations of good and evil and that man must choose the lesser evil when forced between that and a greater evil, that fact is a reality of human nature, and as such, we must embrace and apply it.
- System of Humanity consists of making decisions between good and evil
The system of humanity means making decisions of what is good and evil. Inherent in this system is the MIXTURE OF GOOD AND EVIL within the same act or concept. Burlamaqui explained it this way:
We should therefore make a distinction between real goods and evils, and those that are false and apparent…[S]ometimes there is a mixture of both, which does not obstruct our discerning what part it is that prevails, and whether the good or evil be predominant. (Ibid., Part 1, Chapter 6, Section II.)
That a decision contains a degree of evil does not make the decision immoral because human nature requires it, and God did not create man to choose the greater evil; that is absurd. Moreover, it does not mean that the person having to make that decision has no conscience or that the means justify the ends. Those concepts are irrelevant to the lesser evil principle.
- Good and evil have different qualities relative to man’s decision of choosing the lesser evil
Not only are some decisions mixed with good and evil, not all good and evil fall into the same species. There are different kinds of good and evil, the reality of which plays a part in man’s reasoning to decide which decisions are best.
Burlamaqui explained the nature of good and evil this way:
[G]oods and evils have not all the same nature; some are solid and durable, others transitory and inconstant…There are at present goods and evils…and future goods and evils, which are the objects of our hopes or fears.
There are particular goods and evils; which affect only some individuals; and others that are common and universal, of which all the members of the society partake. The good of the whole is the real good; that of one of the parts, opposite to the good of the whole, is only an apparent good, and consequently a real evil. (Ibid.)
On this rule, when people make political decisions, they are making not personal decisions; rather, they are making decisions that affect the whole of society. Where the decision causes more evil than good, the decision is, as these philosophers state, the “real evil.” Thus, one cannot make a political decision without considering the effect it will have on all of society.
- The lesser evil principle both creates and limits the right of revolution.
The right of revolution rests in human nature: that when men enter into society, they do it for their benefit, and when their state in society creates a greater evil than being in a state of nature, the right of revolution becomes ripe. Burlamaqui showed how the lesser evil principle forms the basis of revolting against government. He says, “less inconveniency [or “evil”] would arise from [the right of revolution], than from allowing all to the sovereign, so as to let a whole nation perish.” (Ibid., Part II, Chapter 7, Section XXXVIII.) In other words, revolution becomes necessary when submitting to government creates greater evils than resisting government, knowing that revolution puts man in a deplorable condition, and if he loses the conflict, subjects him to even greater evils by the conqueror.
Likewise, the lesser evil principle limits revolutions. As the American Declaration states, we “suffer evils while evils are sufferable,” or as Burlamaqui put it,
if the sovereign should push things to the last extremity, so that his tyranny becomes insupportable, and it appears evident that he has formed a design to destroy the liberty of his subjects, then they have a right to rise against him, and even to deprive him of the supreme power. (Ibid., Part II, Chapter 6, Section XXI.)
In addition to the lesser evil principle setting the parameters of the right of revolution, it also limits the right when exercising it would create greater evils in society.
In other words, even when tyranny is “insupportable” (meaning, evils are being forced on the people), the people should endure these evils “when matters are so situated, that resistance would infallibly produce very great troubles in the state, or tend to the ruin of many innocent people.” (Ibid., Sectin XXV). Clearly stated, where resistance would create greater evils for society than the tyranny creates, people must suffer those real evils.
Given that America has not seen a revolution since 1776, Americans have confirmed the lesser evil principle. Americans have determined as a society that whatever evils may result from a disliked president, legislator or judge, those evils are not nearly as great as the evils that result from revolution.
Other acts of submission prove the lesser evil principle as well. For example, many of the lesser-evil rejecters pay taxes, comply with laws, and give submission to what they call an evil or even tyrannous government. They do so plainly because they refuse to suffer the greater evil of personal inconvenience rather than resist a government they call evil. So, for those who decry using the lesser evil principle with, say, voting, they prove their hypocrisy by financially supporting the very evil they say they “cannot support” through voting. Much more could be said on this score, but this sufficiently illustrates the point.
- Right reason requires man to consider all aspects of good and evil and choose the lesser evil
After explaining the kinds of goods and evils, Burlamaqui explains that man must make proper comparisons of good and evil to make the right decision, just as the parameters of revolution show. He states,
[G]oods and evils not being all of the same species, there are consequently some differences amongst them, and that compared together, we find there are some goods more excellent than others, and evils more or less incommodious. It happens likewise, that a good compared with an evil, may be either equal or greater, or lesser; from whence several differences or gradations arise. (Ibid.)
Burlamaqui then explains that after making this examination of the good-evil mixtures, man must consider the consequences of the decision in question. He said,
[I]t is not sufficient to be attentive to the present good and evil, we must likewise examine their natural consequences; to the end, that comparing the present with the future, balancing one with the other, we must know beforehand what may be the natural result.
It is therefore contrary to reason, to pursue a good that must be certainly attended with a more considerable evil. But on the contrary, nothing is more reasonable than to resolve to bear with an evil, from whence a greater good must certainly arise. The truth and importance of these maxims are self-obvious. (Ibid., Section IV.)
Just as Thomas Jefferson wrote about “these truths [of natural law] being self-evident,” Burlamaqui observed that choosing the lesser evil was likewise a self-evident truth of natural law—because man’s happiness is plainly improved when he avoids the greater evils of a necessary decision.
- Man must choose the lesser evil even when there is only a possibility that the greater evil will happen
Burlamaqui also explains that a person need not have substantial evidence to apply this lesser evil principle. Rather, where the prevented greater evil is possible or probable, he acts morally when using the lesser evil principle to prevent those anticipated greater evils. Burlamaqui explained this way,
It is not necessary to have an [e]ntire certainty in regard to considerable goods and evils: Mere possibility, and much more so, probability, are sufficient to induce a reasonable person to deprive himself of some trifling good, and even to suffer some slight evil, with a design of acquiring a far greater good, and avoiding a more troublesome evil. (Ibid., Section IV.)
It would be erroneous to say, “since I do not know with an absolute certainty that this decision will result in a greater evil, I will choose it instead of the lesser evil.” Rather, right reasoning proves the opposite: “since it is possible or probable that my decision will result in a greater evil, I will choose the other, the lesser evil.”
Naturally, the more probable that greater evils will result, the greater the duty is to choose the lesser evil. This is especially true given that "the good of the whole is the real good.”
- The lesser evil principle is essential to man’s happiness and conforms to his nature
After explaining the natural law principles concerning man’s duty to choose the lesser evil, Burlamaqui concludes that this principle is “essential…to our happiness.” (Ibid.), and rejecting the lesser evil principle makes “bad use of [man’s] reason.” (Ibid., Part I, Chapter I, Section VII.) This should be obvious because the opposite rule would allow man to choose greater evils in every regard of life. This principle would be absurd and a contradiction to man’s nature. In short, it is immoral to choose the greater evil.
On the heels of explaining what conscience (see above) is, Burlamaqui states a universal moral duty of man to prevent the greater evil. He said,
If we find ourselves in such circumstances as necessarily oblige us to determine to act, we must then…distinguish the safest and most probable side, and whose consequences are least dangerous. Such is generally the opposite side to passion; it being the safest way, not to listen too much to our inclinations. (Ibid., Part II, Chapter 9, Part VIII, Seventh Rule.)
Plainly stated, “our inclinations” is not the test of true Reason. Reason is based on demonstrative reasoning, meaning, result-oriented science. Where our actions produce greater or worse evils than other evils we seek to avoid, our action is not based on reason but on inclination or passion. This is a conscience in error because it causes more harm to man and prevents the greater happiness of society.
- Choosing lesser evil does not mean only “benign” evils, but all evils
When one argues (in an attempt to get around this natural law principle) that the lesser evil principle only applies to benign (i.e. harmless) decisions, such as where to eat lunch, or where to buy clothes, or which road to take home, he is absolutely wrong. Natural law creates the lesser evil principle relative to all decisions, including ones that contain true or perceived evils.
For example, in addition to the evils I noted in Lesser-Evil Principle Shaped the Constitution the Founders included in the Constitution what hardly anyone would consider to be a mere preference or harmless evil; that is, enslaving an entire race of people. Slavery was considered an actual moral and religious evil by many Founders and statesmen of 1787. Yet, the Constitution sanctioned it. Of course, the opponents to slavery knew that for the Constitution to be ratified, it had to sanction slavery. But to them, that was the lesser evil. The greater evil was disunion.
As in most, if not all, political decisions, there are always evils that result, even with the most ideal candidates. For example, Ron Paul is perhaps the most-loved candidate by strict conservatives, anarchists, libertarians, and self-described “constitutionalists,” in recent memory. Yet, if he were elected, evils would result from his policies.
For example, Ron Paul believes the federal government should have no say in defining marriage. He believes that the issue is a State issue, opposes anti-sodomy laws, and opposes any federal law or constitutional amendment that would define marriage as between heterosexuals.
In fact, Paul doesn’t want any government involvement in marriage. Naturally, this hands-off approach would permit “evils” as well, such as inter-familial marriage and potentially pedophilia. This would cause an increase in birth defects and other similar evils. It would allow other evils such as permitting men to leave their wives with very little recourse for women to enforce parental responsibilities, such as child support, visitation, alimony, and other essential functions resulting from a divorce. It would create insurance coverage nightmares and other social and financial evils.
Of course, Paul’s approach here is the same position taken by U.S. Presidents from George Washington to Andrew Jackson on the issue of enslaving black people. For most of them, to oppose slavery or its expansion in the West was political suicide, so they conveniently opted to defer to the States.
Many of Ron Paul’s supporters vehemently oppose homosexual marriage and find it to be EVIL! But with Ron Paul, the States would be unfettered to define marriage as between homosexuals. Would evils exist under Ron Paul’s administration? According to many of his supporters’ views, yes! Are those evils lesser or greater than the evils that would be prevented under Paul’s administration? Ron Paul supporters would absolutely claim that the homosexual evil, as just one example, would be less than the evils Ron Paul would prevent.
There are MANY examples that could be given to prove that essentially every political decision contains a gradation of good and evil and that, knowingly or not, people always choose what they deem is the lesser of evils.
There is no question where the Founders got the lesser evil principle and why they used it. It is a product of right reason, and Enlightenment philosophy—the school of thought they knew intimately and used universally—confirms it as such.
Don’t be confused or misguided: the lesser evil principle is not, “having no morals or conscience;” it is not, “the ends justify the means.” The lesser evil principle derives from human nature itself—from the law that requires man to preserve, protect, and improve himself and to prevent greater evils when forced to make a decision between one evil and one greater evil.
Thomas Jefferson said the same:
It is the case of giving a part to save the whole, a limb to save a life. It is the melancholy law of human societies to be compelled sometimes to choose a great evil in order to ward off a greater.
George Washington said the same:
I can foresee no evil greater than disunion.
Plato said the same:
To prefer evil to good is not in human nature; and when a man is compelled to choose one of two evils, no one will choose the greater when he might have the less.
General Robert E. Lee said the same:
I think [slavery is] a greater evil to the white man than to the black race, [and] while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former [white man].
Orestes Brownson said the same:
Congress…ought to receive the petitions [to abolish slavery] as the less of two evils.
Abraham Lincoln said the same:
"If slavery is not wrong, nothing is wrong…[T]o this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensabale means, that government -- that nation -- of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.
One may think that he does not use the principle, but he is wrong. But even if one insists that he does not accept or use the principle, he must admit then that (1) the Constitution itself is a product of this principle and is thus evil; (2) he has no intention of returning to the principles of the founding fathers and other statesmen; and (3) he rejects the rules produced by human nature, i.e. natural law. Such a person may be sincere in his belief, but he is not an attribute to the political happiness of society.
 I use Enlightenment philosopher, Jean-Jacques Burlamaqui because he, perhaps, explained the lesser evil principle as well as any other philosopher, in light of the Whole Duty of Man.