A. Locke's intentions

There are several ways to explain these various statements and the tensions between them. If one focuses on Locke's teachings specifically on association, one might conclude (as Horn does) that Locke means to protect religious and other spiritual associations and, at the same time (as Ruth Grant suggests), to banish from the commonwealth political parties and other associations that claim to participate actively in political life. More generally, perhaps the inconsistencies confirm that Locke was a strictly occasional writer, in which case it would be “pointless to look upon [Locke's] work as an integrated body of speculation and generalization.” The inconsistencies might also confirm John Dunn's general impression of Locke, that his “ideas remain[ed] for his entire life profoundly and exotically incoherent.” Or, even if we assume that Locke had intentions that were integrated and coherent in his time and day, it might be the case that our time and day differ too profoundly from his for us to appreciate his intentions in our present historical context.Footnote ¹⁰

Yet one should not dismiss the possibility that Locke has a coherent and long-lasting intention. Whatever we may think of his intentions now, Locke's writings leave signs that he was quite ambitious. He begins the Conduct of the Understanding by suggesting that he hopes to improve upon principles of logic that had served the learned world for at least two thousand years before his time (CU 1). In a letter to a friend, Locke ranks the Two Treatises in the same company with Aristotle's Politics for its contributions to government.Footnote ¹¹ As Peter Myers concludes, to read Locke solely in the context of the political, scientific, and theological problems of his generation in England may “impose[] an unwarranted degree of closure upon and diminish[] the stature” of Locke, and encourage interpreters to trivialize Locke's ambitious attempts “to effect profound theoretical innovations, to converse with writers long dead, and to enlighten distant audiences.”Footnote ¹²

To appreciate what gets lost if we trivialize Locke, consider his writings on private societies. Even if he seems to focus only on church and state in the Letter Concerning Toleration, in reality Locke anticipates political problems not strictly necessary to his argument about religion. He acknowledges that if “this Business of Religion were let alone,” citizens would still discriminate against one another “upon account of their different Complexions, Shapes, and Features, so that those who have black Hair (for example) or gray Eyes, should not enjoy the same Privileges as other Citizens; … [and] should either be excluded from the Benefit of the Laws, or meet with partial Judges” (LT 50–51). In addition, Locke's writings on private societies are also intertwined with deep questions of Enlightenment political philosophy: questions about how to reconcile the claims of Christianity with those of temporal politics. Those questions have philosophical import beyond Locke's day and age.

In what follows, I explain how I understand Locke's general intentions as a political philosopher and his general prescriptions for the problem of reconciling Christianity with temporal politics. This review will give readers early warning about how I read Locke generally and will offer background important for appreciating Locke's analysis of private associations. The background also helps clarify the relation between Locke's use of the “private society” metaphor in reference to churches and governments and his justifications of private societies generally. Here and throughout the remainder of the essay, I focus on Locke's mature, published, and relevant writings: A Letter Concerning Toleration, The Reasonableness of Christianity, the Two Treatises of Government, the Essay Concerning Human Understanding, and Some Thoughts Concerning Education. I pass over many of Locke's early writings because Locke's views on the church-state problem evolved as he matured. Early in his career (particularly in his Two Tracts on Government), Locke inclined to give the temporal sovereign absolute authority to prevent religious sectarian warfare. Locke preferred the liberal republic later in his career, and I focus here on the views Locke propounded in the works supporting liberal republicanism.Footnote ¹³

These works are difficult to synthesize, however. Locke simultaneously makes occasional and philosophical arguments in all of these works, and each work treats one portion of the political universe from a different partial perspective.Footnote ¹⁴ Generalizing broadly, the Letter Concerning Toleration teaches potential legislators and princes how to resolve the competing claims of spiritual and temporal authority; the Two Treatises teach them how to structure political life once church-state questions have been resolved; The Reasonableness of Christianity teaches preachers and believers how to preach Christianity in the manner best suited for political, ethical, and spiritual life; Some Thoughts Concerning Education teaches parents how to raise their children; and the Essay Concerning Human Understanding teaches potential philosophers and scientists the epistemological foundations of decent ethics and politics.Footnote ¹⁵ To appreciate Locke's complete analysis of free association, the interpreter must consider different arguments in different works by adjusting for their differing intentions. This sort of interpretation is difficult, for parallel arguments that seem complementary to one reader may seem grossly inconsistent to another. Even so, I find, as Ruth Grant suggests, that “[m]ost apparent inconsistencies evaporate[] on further consideration of the context of conflicting statements, their place in the argument, or Locke's word usage.”Footnote ¹⁶

B. Locke's ethical and political foundations

To begin with, Locke is a eudaimonistic consequentialist. That he is a “consequentialist” means he justifies rights to the extent that they contribute to good consequences rather than the other way around, as deontologists maintain. At one point in the Two Treatises, when speaking of man's dominion over animals, Locke assumes that man's right is “to make use of those things that [are] necessary or useful to his Being” (TT I.86). That he is a “eudaimonistic” consequentialist means that Locke measures good consequences in reference to happiness. “Eudaimonistic” happiness refers primarily to a state of moral well-being of the sort people associate with “mature” or “virtuous” individuals. Because it focuses on the moral well-being of individuals, eudaimonistic happiness is not analyzed top down but bottom up: it refers not to the general happiness of the society as an organic whole but rather to an aggregation of the happinesses of individual citizens. Hence, while individual necessity and utility ordinarily set the standard for human action, they are judged by reason, which directs them toward happiness—“the utmost Pleasure we are capable of” (ECHU II.21.42) and man's “chief end,” which “Mankind … are and must be allowed to pursue” (RC 245).

This portrait goes against many other portraits of Locke. As I have noted, some scholars maintain that Locke's ideas are incoherent. Many reject the suggestion that Locke is a consequentialist and claim that he is instead a deontologist; some of those claim that his deontology rests solely on philosophical grounds, while others claim that it follows from a combination of political philosophy and theology.Footnote ¹⁷ Yet if one reads Locke's mature political writings and his philosophical writings as complementary parts of an integrated whole, he instead propounds a “rule”-based consequentialist approach. This approach draws on human psychology and experience to prescribe broad rights designed to contribute to human happiness. Locke trenchantly criticizes the claim that men have any innate practical principles (see ECHU I.3). It is hard to explain why Locke would launch such a critique if he established the foundations of his political theory on deontology or revelation. He sets as a standard for human action “the highest perfection of intellectual nature,” which “lies in a careful and constant pursuit of true and solid happiness” (ECHU II.21.51). Moreover, in his politics, he defines law “as the direction of a free and intelligent Agent to his proper Interest,” prescribing “no farther than is for the general Good of those under that Law” (TT II.57).Footnote ¹⁸ But however Locke ultimately justifies the foundations of his politics and ethics, he makes many observations about human anthropology, psychology, and sociology. Even if I am wrong and Locke's political theory is foundationally incoherent, his observations may still be interesting and relevant to political theory in their own right.Footnote ¹⁹

Locke also treats political opinion as a powerful force in practical political life. This characterization contradicts portraits suggesting that Locke is a “possessive individualist,” whose theory of natural rights subordinates man's social tendencies by focusing too much on acquisitive and life-preserving passions.Footnote ²⁰ Without a doubt, Locke does focus government on simple human interests like life and property, but not to the point that he focuses on human possessive and egoistic tendencies to the exclusion of social tendencies.Footnote ²¹ Among those social tendencies, Locke focuses heavily on most men's need for authoritative social opinion. He expects, “by the little that has hitherto been done in it, that it is too hard a task for unassisted reason to establish morality in all its parts upon its true foundation with a clear and convincing light” (RC 241). Instead, he acknowledges the force of the “Law of Opinion or Reputation,” also called “the Law of Fashion” (ECHU II.28.5–10, 12), and he describes shame as “the common measure of Virtue and Vice” (ECHU II.28.11; see also I.3.22–26, IV.16.4, IV.20.2–3). The separation between reason and opinion shapes the character of political life. On the one hand, Locke expects that his Essay Concerning Human Understanding, a treatise on theoretical science and philosophy, will be thought among most readers “to deserve no consideration, for being somewhat out of the common road” (ECHU, Epistle to the Reader). On the other hand, he believes that The Reasonableness of Christianity will be extremely relevant to the vast run of mankind, for “[t]he greatest part cannot know, and therefore they must believe” (RC 243).

Locke is also pessimistic that politics can, within humane limits, direct citizens to pursue one or a few outstanding virtues. While Locke resembles many pre-Enlightenment political theorists in his eudaimonism and his respect for common opinion, on this topic he breaks with his predecessors and anticipates contemporary liberal thought. Many prominent ancient and medieval Christian philosophers were teleologists, which is to say that they presumed that men, like other things in the world, are naturally directed to one or a few purposes. In contrast, Locke criticizes “the philosophers of old” for “in vain enquir[ing], whether Summum bonum consisted in Riches, or bodily Delights, or Virtue, or Contemplation: and they might have as reasonably disputed, whether the best Relish were to be found in Apples, Plumbs, or Nuts, and have divided themselves into Sects upon it” (ECHU II.21.55). Locke agrees with the philosophers he criticizes inasmuch as they are all eudaimonists, but he parts with them to the extent that they claim that men are naturally inclined toward one or a few forms of human excellence. For Locke, men differ profoundly in their capacities. Some are endowed so that, realistically, they will appreciate riches and bodily delights but not contemplation; others are endowed so that they are “not content to live lazily on scraps of begged opinions” and instead set their “own thoughts on work, to find and follow truth” (ECHU, Epistle to the Reader). Because of these and many other differences, Locke concludes that teleological political philosophy has a tendency to be inhumane. It encourages political rulers to force many citizens to follow standards of excellence and happiness that they are simply not equipped to attain.Footnote ²²

Locke therefore sets lower standards for politics. Aristotle maintained, in principle, that the citizens who are superior in virtue deserve to rule the city; Locke's most political writings, the Two Treatises, do not mention virtue (a fact which contributes to the perception that Locke is a possessive individualist).Footnote ²³ Locke's political theory focuses on the goods most useful to a broad cross-section of the citizenry, no matter what their particular talents and interests—life, liberty, security, property, and family (see TT I.86, I.88, II.17, II.124, II.135, II.199).Footnote ²⁴

C. Locke's diagnosis: Civil strife in the Christian world

Finally, Locke is a foul-weather friend and a fair-weather critic of Christianity. He finds Christianity's basic teachings to be just and humane. He regards Christianity as a more effective and humane way to inculcate basic practical morality in most men than other possible foundations for practical ethical and political morality (see RC 231, 239–45). At the same time, he takes pains that Christianity not be misunderstood in ways that make politics inhumane.Footnote ²⁵ Christianity's universal and revelational claims create dangers in Christian nations. In contrast to pagan religions, which tended to emphasize external devotions to rituals and laws, Christianity emphasizes the internal aspects of faith—in Locke's description, “Faith only, and inward Sincerity” (LT 27; see RC 241, 243, 245). In addition, whereas pagan cults were tied to particular cities and made worship a matter of external practice, Christianity penetrates wider and deeper. Its revelation claims a universal reach; it purports to regulate not only external conduct but also inward belief and piety (RC 241; LT 28).

Christianity therefore creates the possibility that believers may disagree over points of dogma that are fairly abstract and difficult to resolve with unaided reason. Hence, Locke criticizes zealots who take less “care and industry to the rooting out of … Immoralities, than to the Extirpation of Sects” (LT 4). If Christian religion is as involved in real-world politics as pagan cults were tied to the ancient city, zealous believers will be tempted to use civil force to settle such dogmatic disputes. Because Christianity is a universal religion, believers will also be tempted to appeal to it as a justification to disobey their local civil laws and to treat their fellow citizens as enemies. They may ally more easily with members of their sect or denomination than they do with their countrymen. Hence, Locke concludes, “No Peace and Security, no not so much as Common Friendship, can ever be established or preferred amongst Men, so long as this Opinion prevails, That Dominion is founded in Grace, and that Religion is to be propagated by force of Arms” (LT 18).

Jeremy Waldron reads Locke as making a narrower argument—as seeking to avoid the question of whether the commonwealth is competent to identify orthodox belief, and to stress instead that the commonwealth is not competent to compel such belief.Footnote ²⁶ But Locke is making the broader criticism that Waldron reads him to avoid: “[I]t is unavoidable to the greatest part of Men, if not all, to have several Opinions, without certain and indubitable Proofs of their Truths; and it carries too great an imputation of ignorance, lightness, or folly, for Men to quit and renounce their former Tenets” (ECHU 4.16.4). Because opinions about the best and happiest way of life are so problematic, Locke “esteem[s] it above all things necessary” to separate politics from quests for the highest virtues—specifically by “distinguish[ing] exactly the Business of Civil Government from that of Religion, and … settl[ing] the just Bounds that lie between the one and the other. If this be not done, there can be no end put to the Controversies that will be always arising, between those that have, or at least pretend to have, on the one side, a Concernment for the Interest of Mens Souls, and on the other side, a Care for the Commonwealth” (LT 6).

D. Locke's prescription: Liberalism

Broadly speaking, in order to settle these problems Locke bifurcates what was one “city” in classical and medieval Christian political philosophy into two separate spheres—one for public affairs, and another for private. The deepest manifestation of this change is that Locke propounds his political program on foundations not of natural law or duties but of natural rights. The Second Treatise begins by insisting that men are “naturally in … a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit” (TT II.4). This liberty is an ordered liberty. The natural freedom sketched at the beginning of the Second Treatise is “within the bounds of the Law of Nature” (TT II.4). “[T]he great privilege of finite intellectual Beings,” and “the great inlet, and exercise of all the liberty men have” lies in their capacity to “suspend their desires, and stop [those desires] from determining their wills to any action, till they have duly and fairly examined the good and evil of it” (ECHU II.21.52). This presumption of liberty also manifests itself in the principle of consent, under which all governments must operate by election or representation (see TT II.22, 95–99).

Because politics is ordered toward securing liberty, it bifurcates what counts as one realm of politics in many political theories into two separate realms. One sphere consists of the public realm, the “commonwealth,” the realm of public affairs, which are limited to the securing of the low and solid material interests around which most or all citizens can agree. Locke refers to these interests by formulations like “Safety and Security,” or “no other end but preservation” (TT II.94, 133, 135). These public interests, when secured, in turn secure and order for individual citizens private zones of practical discretion. Citizens may use such discretion first to secure their individual shares of material interests and then to pursue happiness as their reason and conscience help them to understand it.

That privatizing formula has public repercussions. For example, the public protects private property understood as individual zones of labor and creativity. Privately, property helps individual citizens to take care of their own needs. Publicly, the wealth created by private property in turn secures the citizenry from domination abroad and from dependency on “Quarrelsom and Contentious” elites at home (TT II.34, 42). Culturally, when the government secures “property” to its citizenry, it teaches the vulgar mass of citizens the virtues of responsibility and self-ownership. It teaches each citizen to value “honest industry” and how to become “Master of himself, and Proprietor of his own Person” (TT II.42, 44).Footnote ²⁷ Privately, the Lockean nuclear family frees individual families to rear their children without interference by politics or rule by clan patriarchs. Publicly, in turn, because clans are disintegrated into clusters of autonomous nuclear families, the Lockean order undercuts quarrelsome noble dynastic families and makes the private home a source of self-reliant republican virtues (see TT II.77–78; STCE 70).Footnote ²⁸

Similarly, not only does the separation of church and state free a people from what Locke calls the “inhumane Cruelty” to which devout Christianity can encourage believers who disagree over articles of faith (LT 2), it also encourages church and government each to specialize in its own area of competence. Christianity is freed to focus on “the regulating of Mens Lives according to the Rule of Vertue and Piety” through the power of persuasion (LT 1–2; see also 3); the commonwealth is better focused on using the power of “command” and “Penalties” to protect material interests (LT 8). Religious toleration also perpetuates liberalism, for it gives every heterodox church a political interest in stopping the civil government and the dominant church from overstepping the liberal settlement of church and state. Toleration encourages dissident churches, “like so many guardians of the public peace, [to] watch one another, that nothing may be innovated or changed in the form of the government” (LT 52).

E. Liberalism and the private society

We may now appreciate why Locke uses the notion of a private society as a rhetorical measuring standard for churches in the Letter Concerning Toleration and for governments in the Two Treatises. As between a citizen and the government, Locke teaches his readers to judge their governments by whether those governments secure their happiness as well as their employers, their social clubs, and the many other private associations they may enter or exit freely. That standard makes consent and liberty as fundamental in politics as they are in these more social settings. Of course, Locke is quite aware that many individuals are bad judges of comprehensive questions (see ECHU 4.20). By the same token, he accepts that many citizens will use their consent and liberty irresponsibly in important ways. But the governors suffer from that problem as well as the governed, and Locke focuses the temporal order on securing forms of happiness that the governed are better-equipped to appreciate.

As between churches and the broader society, the private-society ideal works in two conflicting ways. It elevates the position of many heterodox churches. The ideal encourages the government to leave such churches alone to govern themselves as nonreligious societies do; the ideal also reinforces the basic principle that opinions about piety and salvation are presumptively off limits to politics. By the same token, however, the private-society ideal also limits the power of churches. It limits church proselytization only to “Exhortations, Admonitions, and Advices” (LT 13). If that ideal does not totally discredit the idea of an established state sect, at least it eliminates one of the main attractions for establishment: state compulsion to guarantee membership and revenues. More generally, the private-society ideal also undermines the legitimacy of some religions in a liberal society. If a religion, on the authority of revelation, maintains that believers may not leave the fold because they conscientiously disagree on articles of faith, or if it bars them from keeping their beliefs and their politics reasonably separate, Locke's teaching suggests that the religion is not compatible with republican liberalism.

A. Associational wrongs to individual rights

Locke qualifies the right of private society in several important respects. These qualifications identify the principles by which legitimate association may be distinguished from harmful association, and the private freedom of societies from their public responsibilities. Locke's understanding should be distinguished from the more utilitarian understanding that prevails in many contemporary discussions. For example, modern American constitutional law analyzes challenges to freedom of association in terms of a utilitarian calculus, in which a government interest may outweigh the private interest in association if the government's objective is important and compelling enough and its means narrowly tailored to advance that objective.Footnote ³⁷ Locke's natural-rights theory presumes that individual and public interests do not conflict when both are understood correctly. Normally, the end of government consists of “the preservation of all, as much as may be.” In extreme cases, the public interest may diverge from an individual's interest, as when the sheriff tears down the house of an innocent owner to stop a spreading fire (TT II.159). But excepting such extreme cases, if conduct is properly part of the right of private society, government interest may not take priority over that right. Government restraints on association are therefore justifiable in normal circumstances only if those restraints count as police “regulations”—that is, laws that require associates to keep their society “regular” in light of the moral laws, interests, and rights that justify and limit the bounds of private society.

Consider, by way of example, the principle that associations must answer for their torts and crimes on terms similar to those that apply to their individual members. When Locke concludes that the associational freedom of churches entitles them to expel members, he adds the proviso that “in all such Cases care is to be taken that the Sentence of Excommunication, and the Execution thereof, carry with it no rough usage, of Word or Action, whereby the ejected Person may any wise be damnified in Body or Estate” (LT 14). In contemporary American constitutional discourse, a church's actions have value as exercises of the freedom of association, but the state has a stronger interest in preventing battery, property damage, or libel. In Locke's usage, by contrast, the moral foundations of the right to associate cease before the associates may tortiously or criminally injure neighbors through the vehicle of their association. Battery, trespass, and libel laws, however, do not seriously interfere with the activities or ends of associations; they simply stop associates from using their association to commit torts or crimes that they could not commit individually.

B. Associational wrongs to public opinion

Locke lays down other principles that limit private societies' activities or ends far more substantially. In the Letter Concerning Toleration, Locke identifies four separate grounds the civil magistrate may cite to refuse to tolerate churches. (I set out these grounds in subsection C below.) Taken together, these grounds are a metaphor for Lockean liberalism generally. Each of these grounds for denying toleration to churches is really a principled restraint on the natural right of any society to associate. Each of the grounds focuses on preserving a certain set of opinions. Locke hopes to free liberal citizens to pursue or believe “speculative” opinions, without fear of coercion by the state or retaliation by private groups who disagree passionately about those opinions. His liberal project is also willing to tolerate a wide range of “practical” opinions, meaning opinions bearing directly on individual ethics or the commonwealth's politics (see LT 39–40). But the Lockean commonwealth requires that the people assent to the practical opinions necessary to perpetuate liberalism.

In this respect, Locke is not a modern liberal pluralist. He rejects the pluralist view “that it is none of the government's business what citizens believe” or “that the shaping of citizens' beliefs is not a task of a liberal state.”Footnote ³⁸ In this respect, Locke has far more in common with pre-Enlightenment political philosophers than he does with, say, Nozick or Rawls. Locke assumes that political philosophy is primarily the study of a political community's comprehensive political opinions. He also assumes that, when political philosophy becomes prescriptive, it must teach political opinions that persuade a people first to embrace and then to perpetuate the best possible regime. Locke holds that three factors contribute to the ethical and political rules a society enforces on its members. These factors are religion, the positive law, and common opinions, and of these the last does most to establish “the common measure of Virtue and Vice” (ECHU II.28.11). Thus, because liberal toleration is more just and humane than its alternatives, a liberal people and magistrate must continually superintend public opinion, inculcate the citizenry in the moral and political conditions of liberal toleration, and remind the citizens how precarious and precious such toleration is.

Locke's qualifications on associational freedom may thus be understood as the product of a more general and relatively tough-minded calculation regarding how to tolerate the widest freedom of thought consistent with the community's responsibility to perpetuate the conditions in which such freedom is possible. The social compact runs both ways. If the civil government breaches any of the terms of the social compact, it dissolves itself from within, and the populace may properly replace it by appealing to the natural right of revolution (see TT II.199, 221–26).Footnote ³⁹ By the same token, however, if citizens associate privately on terms inconsistent with the social compact, they threaten the compact, and the commonwealth may properly quell their associations.

This suggestion may seem contrary to much of the argument of the Letter Concerning Toleration, for Locke insists more than once that “[t]he business of Laws [is] not to provide for the Truth of Opinions, but for the Safety and Security of the Commonwealth, and of every particular mans Goods and Person” (LT 40; see also 6). Nevertheless, later in the Letter, he qualifies this claim significantly:

In this passage, Locke concedes that the magistrate of the Lockean commonwealth is not entirely focused on “the Temporal Good and outward Prosperity of the Society” (LT 43). But the concession is subtle. Locke holds that the civil magistrate is not responsible for all of social morality, particularly social opinions about piety, intellectual excellence, or other individual practical virtues. William Popple's translation of the Letter confuses this point, when it translates “rectitudo morum” (translated above as “rectitude of morals”) to mean “a good life.” In the Essay Concerning Human Understanding, Locke doubts that practical philosophy can identify any “highest good” (“summum bonum”). Locke applies this skepticism in the Letter. He instructs the civil magistrate to tolerate claret clubs and other societies of moral idlers, and also to tolerate “speculative opinions,” which leave “to every Man the care of his own Eternal Happiness” (LT 39–40, 42).

With that qualification in mind, when Locke says that the civil magistrate has an interest in the “rectitude of morals,” he refers to the public morals relating not to speculative opinions but to “practical” ones, which specifically “contribute to the Comfort and Happiness of this Life” (LT 42).

C. Four types of harm to public opinion

Locke lays down four specific grounds on which the civil magistrate may properly rely for refusing to tolerate private societies. First, Locke recommends banning churches and other societies from organizing to propagate “Opinions contrary to human Society, or to those moral Rules which are necessary to the preservation of Civil Society” (LT 45). As part of his jurisdiction to protect lives, liberty, property, child-rearing families, and so forth, the civil magistrate has jurisdiction to stop citizens from associating toward the end of teaching that it is good to kill, enslave, or steal from citizens, or to be sexually promiscuous. Thus, to take one of many possible examples, the Lockean commonwealth has jurisdiction to restrain associations encouraging adultery, incest, sodomy, or polyamory. Such associations encourage the wider society to accept practical opinions that undermine the status of the traditional family and marriage, on which the liberal commonwealth depends to raise and educate children in sound republican habits.Footnote ⁴¹

Second, the commonwealth need not tolerate atheists. Many contemporary authorities suggest that liberal law and policy should “mandate[] governmental neutrality between … religion and nonreligion.”Footnote ⁴² For Locke, however, it is crucial for the liberal civil society to inculcate liberal morality in the public. Even granting that some individual atheists may be far more moral than many religious believers, Locke doubts that the broad public will learn the moral habits liberalism requires without a humane and equality-respecting religion like Christianity (see RC 243). Locke thus worries that atheists “undermine and destroy all Religion” (LT 48).

Of course, one may wonder, as John Dunn does, whether Locke's attitude toward atheists is “odious.” One may also wonder whether Locke can credibly banish atheists given how he recasts Christianity and propounds a rationalist theory of politics.Footnote ⁴³ Nevertheless, in his political teachings, Locke prescribes against atheism to preserve public respect for morality and religious teachings consistent with liberalism. When Lockean liberalism replaces throne and altar with government by consent, it increases the risk that political society will be unstable (see TT II.223). Locke thinks that government by consent can be stable, but not without widespread support for humane religion. Even if common opinion supports government more strongly than religious or positive law, a civil society still gambles dangerously with its social capital if it moves all its bets from religion to popular opinion.Footnote ⁴⁴

A third limit on the extent of toleration is that the magistrate may ban churches and other societies whose membership rules specify that “all those who enter into it, do thereby, ipso facto, deliver themselves up to the Protection and Service of another Prince” (LT 47). Here, Locke cites as an example Muslims beholden to the Ottoman Empire, but in the process he invites his readers to think of Roman Catholics who hold that their articles of faith require them to support the temporal claims of the Church's hierarchy. Elsewhere in the Letter, Locke suggests that he is willing to tolerate the Latin Mass and transubstantiation doctrine; by extension, he is willing to tolerate Catholics (see LT 40, 52).Footnote ⁴⁵ In return, however, Catholics must forsake any elements of Catholic teaching that make it legitimate to overthrow a sovereign government that is not in conformity with Church teaching. More generally, this proviso can fairly be understood to cover banning associational support for the interests of foreign governments and international totalitarian movements with ideological or political agendas inimical to the interests of the liberal commonwealth.

Finally, Locke proposes to ban churches and other societies whose members “arrogate to themselves, and to those of their own Sect, some peculiar Prerogative, covered over with a specious shew of deceitful words, but in effect opposite to the Civil Right of the Community” (LT 46). As he explains elsewhere, “No private Person has any Right, in any manner, to prejudice another Person in his Civil Enjoyments, because he is of another Church or Religion. All the Rights and Franchises that belong to him as a Man, or as a Denison, are inviolably to be preserved to him” (LT 14). Locke offers as examples a church that teaches its members to break promises with nonmembers, or to consider overthrowing the government over religious questions. “These therefore, and the like, who attribute … [to] themselves, any peculiar Priviledge or Power above other Mortals, in Civil Concernments … I say these have no right to be tolerated by the Magistrate; as neither those that will not own and teach the Duty of tolerating All men in matters of meer Religion” (LT 46–47).

This last proviso complicates Locke's teachings considerably, because it threatens to retract much of the immutability of the natural right to society. If one reads Locke's proviso broadly, the more that private societies advocate particular political programs, the more they expose themselves to government supervision. This suggestion is somewhat overdrawn, for the proviso applies only when societies claim political rights and benefits inconsistent with the rights a Lockean commonwealth is pledged to secure. Yet in the hurly-burly of practical politics, it can be difficult for political parties to distinguish between disagreements over first principles and disagreements over their application. For instance, during the 1790s, American Federalists and Republicans accused one another of subverting the new U.S. Constitution, and some Federalists assumed that the federal government would not abridge associational freedom if it suppressed political protest by nascent Republican Party groups.Footnote ⁴⁶ The potential for disagreements of this sort helps explain why Grant reads Locke as being hostile to political parties, and why Boyd reads Locke as propounding a prudential view of private association. Even so, these readings go too far. Locke's teachings leave private societies with a wide right of association, not qualified by prudential concerns in any significant way, as long as they stay out of politics. If societies do engage in politics, Locke concedes, they do risk political supervision. But it is impossible to avoid this problem completely, and Locke's prudential teaching encourages the civil magistrate to tolerate associational dissent as long as it is not too dangerous or violent. Locke suggests that there is no reason not to tolerate heterodox practical opinions, “tho not absolutely free from all Error, if they do not tend to establish Domination over others, or Civil Impunity” for the association in which they are propagated (LT 48).

A. Seditious associations

The Smith Act, passed in 1940, makes it a federal crime for anyone knowingly or willfully to organize an association advocating the forcible or violent overthrow of the United States or any state. Although many prosecutions under this act have been held unconstitutional, the act has been neither repealed nor declared unconstitutional in all of its possible applications. In the 1990s, the U.S. Congress added to the federal criminal code 18 U.S.C. section 2339B, which makes it a federal crime for anyone knowingly to provide material support to a foreign terrorist organization as designated by the Secretary of State. These laws are more or less consistent with three of Locke's provisos (discussed in Section VI.C above), relating to groups that threaten the public morals, claim special privileges or exemptions, or advance foreign interests.Footnote ⁴⁷

These laws (and executive policies that enforce them) raise an obvious practical problem: that the government may overzealously punish legitimate free speech and association in its efforts to stamp out anarchism and terrorism. The U.S. Supreme Court has struggled over how to reconcile this risk with the government's stated mission.Footnote ⁴⁸ But the laws and policies also prompt an existential question: Can a government that claims to be tolerant claim it has a strong interest in refusing to tolerate groups because of their message?

Many prominent pluralist theories of liberalism are open to this objection. United States constitutional law raises the same problem when it holds that First Amendment doctrine aims in large part to foster a “marketplace of ideas.” If the goal of constitutional democracy is to foster a competition of different ideas without regard to which idea prevails, it is hard to explain why Communism, Islamic jihadism, or other illiberal idea systems should be kept out of the market. This paradox has led Larry Alexander to wonder whether political liberalism is “nothing more than an unprincipled modus vivendi responsive to religious and cultural pluralism or, alternatively, a description of a denatured way of life characteristic of Western modernity, one devoid of deep conviction.”Footnote ⁴⁹

Locke's teachings provide a partial response to such doubts. Although Locke's philosophy is moderate in other respects, his tough-minded eudaimonism precludes existential doubt. The liberal polity need not tolerate illiberal groups. Again, Locke's theory is consequentialist; it builds generally on a comprehensive empirical and psychological analysis of human political life; and it justifies freedom not in any general theory of autonomy or the will, but rather in an account of the human interests most reasonably conducive to human happiness. Because of these qualities, Locke's liberalism is not indifferent to different conceptions of the good life. In Locke's terms, while individuals enjoy freedom to speculate about salvation and other topics, their freedom to do so is qualified by the common good, which is in turn defined as an aggregation of all the society's members' individual interests in being free to work, raise families, and pursue their own individual conceptions of excellence or salvation. Similarly, in contrast to the Supreme Court's marketplace-of-ideas metaphor, Locke doubts that a liberal people can cycle through different theories of government without corrupting the moral character they need to remain liberal.

Locke's liberalism thus has little difficulty explaining why Communists or Islamic jihadists need not be tolerated. Locke is reasonably sure that man knows too little about ultimate questions relating to the good life for politics to settle these questions in a decent way. He is also reasonably sure that citizens can coexist and even flourish if they agree to focus their government on liberty, property, and family, and then to pursue higher forms of excellence in smaller groups. Communists and Islamic jihadists are too sure they have comprehensive answers to ultimate questions. Both claim that their possession of these answers gives them the authority to impose tyranny. Both groups reject the public-private distinction and the freedom citizens enjoy thanks to that distinction. Both deny basic rights protecting reasonable human interests, including respect for life, liberty, property, and free thought not consistent with their dominant teachings. Both hold that their claims to truth justify claiming “peculiar Prerogatives” that justify their not extending respect and decent treatment to fellow citizens who do not support their causes (LT 46). While Locke limits the ends for which his liberal commonwealth may act, he does so to make it more competent and forceful within its rightful sphere—including taking those actions necessary to prevent illiberal elements from subverting the system. A Lockean civil magistrate may choose to tolerate illiberal fringe elements, when the society is fairly secure and government suppression seems too likely to encourage censorship of legitimate freedom. But whether the magistrate should be so restrained is a question of prudence. If the society is genuinely threatened, the magistrate should take all actions appropriate to the threat.Footnote ⁵⁰

There is a catch here: To give the liberal commonwealth more certitude in the rightness of its cause against totalitarians, Locke's theory of association also gives the commonwealth stronger regulatory powers to use against associations of non-Lockean liberals. Contemporary welfare-state liberalism was developed in large part on the basis of a common political understanding holding (in John Dewey's formulation) that “[n]atural rights and natural liberties exist only in the kingdom of mythological social zoology,” and that “organized society must use its powers to establish the conditions under which the mass of individuals can possess actual as distinct from merely legal liberty.”Footnote ⁵¹ It would not be difficult to extend Locke's provisos to ban groups dedicated to implementing Dewey's principles in practice.

In many cases, Locke's teachings about prudence help establish a spectrum for judging different forms of political dissent. While modern welfare-state liberals may reject Locke's political foundations and many of the implications of his theory, they still respect democracy, elected representation, liberty, religious toleration, and many other implications of Locke's program. Welfare-state liberals and Lockean liberals have far more in common with each other than either does with Communists or jihadists. Those commonalities provide important reasons why welfare-state liberals might be tolerated in a Lockean commonwealth. At the same time, it is striking that, on Locke's view, toleration of welfare-state liberals is supported only by a prudential argument and not by an immutable right.

Nonetheless, it is not clear that any other theory of government can do better. Many contemporary theories of liberalism are committed to pluralism and neutrality between competing visions of the good life. These theories are broad enough to finesse deep divisions about politics within the political community, but they are correspondingly shallow in response to existential threats from outside that community. Lockean liberalism is deep enough to respond to such existential threats from without, but it is not broad. Rather than minimizing as “inner splits” profound theoretical differences among species of liberalism, Lockean liberalism highlights the political differences among liberals.Footnote ⁵² Maybe a liberal polity cannot have it both ways.

B. Antidiscrimination policies and the public-private distinction

Antidiscrimination laws bar employers, social clubs, and other groups from denying access on the basis of race, religion, sex, sexual preference, or other similar characteristics. These laws are usually justified as part of a broader project to eradicate animosity in all forms toward groups that are targets of discrimination. Such animosity often starts in small, private groups. To wipe out discrimination root and branch, then, antidiscrimination policies typically require that such groups open their membership to members of targeted groups.

As Andrew Koppelman has recognized, an antidiscrimination program thus “presses against the public/private distinction” symbolized in freedom of association. When an association claims that it should be free to regulate its membership, choose its ends, or enforce its policies without government interference, it claims that its internal governance belongs entirely in the private sphere. Antidiscrimination policies, by contrast, claim that, in some cases, such groups pursue ends and policies inconsistent with the public's interest in ending racial and other forms of discrimination. Many contemporary theories of liberalism have difficulty explaining why the private sphere is or ought to be autonomous from the claims of the public. Consider Robert Nozick's theory of liberalism, which entitles every citizen to wide discretion to believe what he wants and associate with whom he wants. As Koppelman and Stephen Macedo have suggested, the citizens of Nozick's ideal polity may not sufficiently appreciate the deontological respect for persons that provides the foundations of their freedom. But as soon as a Nozickian polity seeks to foster such appreciation, it blurs the line between public and private in free thought and association.Footnote ⁵³

Locke's defense of private societies may provide a stronger defense for associational privacy and a deeper justification for the public-private distinction. Because Locke's approach is consequentialist, it anticipates and provides a response to a claim central to antidiscrimination policy: that in order to make sure citizens do not use their freedom to discriminate against fellow citizens, a decent political community must intervene closely in its citizens' preferences and associations. Locke recognizes that a civil society has a huge interest in shaping its citizens' preferences—although not to the degree that contemporary antidiscrimination policies typically require. As I noted in Section VI, the Lockean commonwealth has an interest in preventing groups from committing crimes and torts that individuals are barred from committing. It also has an interest in stopping groups from undermining foundational liberal moral opinions, including, specifically, preventing groups from claiming “any peculiar Priviledge or Power above other Mortals, in Civil Concernments” or a right “to establish Domination over others” (LT 46–47, 49). The Lockean liberal order does not require citizens to like one another, but it does require them to be civil to one another and to respect one another's equal liberties to be let alone to pursue basic material interests. Thus, in principle, the Lockean commonwealth may prosecute and disband a group dedicated to the violent intimidation of members of a particular race or religion—before that group even commits any act of violence—simply to teach the broader community that such intimidation will not be tolerated.

At the same time, it is harder for the Lockean commonwealth to justify a policy forcing a private business or social club to admit members that it does not want, even if the association is denying membership on the basis of race or another similar characteristic. The refusal to admit an applicant does not count as domination over the applicant or as an assertion of any special privilege to the applicant's detriment. The applicant remains left alone. The applicant still has his liberty, his property, and his freedom to join many other associations to pursue his ends. Since the association is not inflicting any harm on the applicant or the public morals, it remains absolutely free—whether it is a local church, the Boy Scouts, or an employer employing individuals from the same religion and ethnic background—to control its membership without state interference. Here is where Locke's presumption of associational freedom applies with force. It matters little that the business or social club is not advocating a political program or promoting religious worship—if anything, the lack of advocacy favors associational freedom. The business's commerce and the social club's fraternity are ends as intelligible, legitimate, and deserving of legal noninterference as loftier ends, and neither commerce nor fraternity claims special privileges inconsistent with the equal civil rights of nonmember citizens.

Locke's analysis of human psychology and politics explains why a liberal society might want to refrain from enforcing policies against discrimination by associations. One strand of this analysis relates back to Locke's analysis of civility. Otherwise-decent citizens differ too much in their backgrounds, characters, interests, and religious backgrounds to make it realistic for the law to force them to associate. Citizens will have their own close friendships with their family members, workmates, churchmates, and so forth, but they will not like and will probably actively mistrust many of their fellow citizens. The law can teach such citizens not to threaten their neighbors, but it cannot force them to like one another. Thus, as Robert Putnam has suggested, compulsory association often fosters social isolation and depletes a country's store of social capital. A country may decide to enforce antidiscrimination laws anyway, to break up local patterns of ethnic and religious discrimination and to create patterns of social trust that transcend ethnic and religious backgrounds. But Putnam confirms with empirical data what Locke suggests by general observation: the society will pay a cost for making many useful and pleasant social groupings less so, and it ought to discount this cost from whatever benefits it hopes to promote by restraining the power of free associations to exclude outsiders.Footnote ⁵⁴

Along with civility comes a cluster of values associated with personal responsibility, spiritedness, and self-reliance. To justify wide-ranging power to monitor employment discrimination and private-group exclusion, antidiscrimination advocates often appeal to norms like equal dignity, concern, or respect: a freedom from insults, hate, and other social stigmas that make individuals think that the wider society values them little or not at all.Footnote ⁵⁵ Locke's version of dignity sets lower goals. In a Lockean society, individuals can and should find enough affirmation from family, religion, and friends. Lockean citizens do not need to tolerate physical or reputational attacks by outsiders who dislike them, but they do need to disregard insults and other lesser expressions of animosity with spiritedness and a thick skin. At a high level of generality, when the Lockean citizen is excluded from a private association on the basis of race, religion, or another similar characteristic, the appropriate response is to brush off the implied insult and find more friendly associates.

In other words, Locke treats the public-private distinction more sensitively than antidiscrimination advocates often do. Koppelman and other antidiscrimination scholars portray liberalism as naïve. When liberalism claims that freedom of thought and association are entirely private affairs, these scholars argue, it ignores the fact that private associations shape the public culture. To this extent, Locke's theory accords with antidiscrimination scholars against Nozick and many other contemporary defenders of liberalism. But Locke differs with antidiscrimination scholars about what form of public culture is most likely to facilitate the private happiness of citizens and a humane and tolerant public life. When Locke draws a distinction between rights invasions and mere insults, he sets standards that teach individual citizens to be self-reliant and free. Antidiscrimination scholars may overlook such qualities or take them for granted: they may be promoting a conception of dignity so open-ended as to encourage individuals to see themselves as victims, to habituate them to using the law as a bludgeon for social advancement, and to institutionalize ethnic and religious competition. Similarly, Locke's political theory limits the role of elites to a greater extent than antidiscrimination theory does. Locke's conceptions of dignity and self-reliance encourage a public culture in which individual citizens shrug off insults and focus on taking care of their own interests. By contrast, a capacious theory of dignity encourages elites to become “quarrelsome and contentious” over ethnic and religious grievances. While more needs to be said, these insights suggest why Locke may provide a more serious response than many contemporary liberal theorists to conventional antidiscrimination criticisms of liberalism.

At the same time, Locke's theory is exposed to a different set of problems. To get the advantages of psychological sophistication, Locke opens his approach to empirical criticisms. Locke presumes that individuals can coexist peaceably within a democratic republic even if they dislike one another for religious reasons and, depending on the political community, even if they mistrust one another because of racial and ethnic attachments. These predictions may be accurate in some cases, but not necessarily in all. Locke's arguments are thus exposed to criticisms similar to those leveled at Richard Epstein's book Forbidden Grounds, which defends the freedom of a business to deny employment to any applicant for any reason. This defense of at-will employment is similar to Locke's account of free association generally. Both are consequentialist; both draw broad lessons from relevant history; and both fill in the gaps by inducing likely general principles from general observations about human selfishness and sociality. Epstein's argument has been criticized thoroughly for going against the empirical evidence. According to the critics, before the U.S. Congress enacted the Civil Rights Act of 1964, white prejudices against blacks were too deep to dislodge privately and socially and too deep to allow blacks to create their own economic opportunities without government intervention. Because Locke's defense of free association relies similarly on soft empirical generalizations, it must confront similar empirical criticisms.Footnote ⁵⁶