Posted on 06/07/2002 8:04:47 PM PDT by aconservaguy
From The Center for Constitutional Studies Virtue, Wisdom, Experience, Not Abstract Rights, Form the Basis of the American Republic‡
Gregory S. Ahern*
In Natural Right and History, Leo Strauss writes that "Prescription cannot be the sole authority for a constitution, and, therefore, recourse to rights anterior to the constitution, i.e., to natural rights, cannot be superfluous unless prescription itself is a sufficient guarantee of goodness."1 Such a characterization results in the accusation that those who hold to prescription as a guide to present conduct are guilty of historical relativism. By contrast, the Straussian hero appears to be the "wise 'legislator' or founder" whose essentially private reason discerns the universal, absolute truth without any regard to public opinion and who imposes the product of his reasoned understanding on an ignorant, and perhaps even recalcitrant, nation.2
This argument is taken up by Harry V. Jaffa and his followers including Charles Kesler. Traditional conservatism's respect for the past, writes Kesler, is an "extreme of conservatism" which is "unreasonable and unprincipled." Such conservatism, he says, "does not acknowledge any objective standards by 'which we may distinguish just from unjust, good from bad, true from false, and so provides us no guidance in choosing what elements of the past should be conserved as a matter of expedience, and what elements must be conserved as a matter of justice. Nor can it provide us with what the past does not furnish—living statesmanship and virtue."3 The remedy for such "unreasonable and unprincipled" conservatism, Jaffa and his disciples argue, is adherence to what they claim is the central idea of the American political tradition—equality of natural rights.
This "central idea" shapes and determines Jaffa's interpretation of the American Constitution as a document that was designed to secure the rights of man. This leads to the paradoxical conclusion that, "in the decisive respect, the division in the American understanding of sovereignty was not between the state governments and the Union, but between the people's liberty and the law that entitled them to that liberty."4 Thus, Kesler, citing Thomas Paine, argues that the people can be sovereign only in a subordinate and conditional way and that the extent of the people's sovereignty is determined by the essentially private reason of the wise legislator or statesman.
There are a number of problems with this view. First, it seems to result from a misunderstanding or deliberate misrepresentation of the Western natural-law tradition.5 Second, it implies that statesmanship and virtue cannot be attained without reference to abstract rights as an ultimate standard. Third, it so redefines the nature of sovereignty that the federal character of the United States is reduced to insignificance, and the sovereignty of the people is left very precarious indeed. Finally, and perhaps decisively, this characterization of the Founding simply is not supported by a close reading of the Constitution or The Federalist Papers.
Nowhere in the Constitution is there to be found a reference to the natural rights of man; nor do The Federalist Papers, which explain that document, base their argument on any such concept. While the authors of The Federalist (James Madison, Alexander Hamilton, and John Jay, who write under the pseudonym "Publius") are concerned with protecting "the diverse faculties of men" as "the first object" of government (Federalist No. 10), the manifest tenor of the work and the explicit statements of Publius indicate that this object is to be attained through the structure of the federal system itself, through the republican system of government, and by a reliance on the deliberate sense of the community (and its representatives as reflective of that sense). Moreover, Publius clearly does not envision the federal government's becoming concerned with the regulation of the individual rights of the citizens. These are to be left to the care of the state governments, which are to retain all powers not expressly delegated to the federal government (FederalistNo. 84).
The legitimate object of federal legislation, Publius argues, is first and foremost the preservation of peace and tranquillity both against foreign arms and domestic insurrection. Publius, thus, bases his appeal for ratification of the Constitution on the very practical observation that a united America will be embroiled in fewer wars, since a country united under a single government (where foreign affairs and defense are concerned) will provide fewer provocations to other nations and will, by its strength, invite fewer acts of aggression against it (Federalist No. 3). Publius, therefore, advocates a federal government as one that can "harmonize, assimilate, and protect the several parts and members [of the Union]" and will be able to protect the interests of the parts as well as those of the whole (Federalist No. 4).
In Federalist No. 9, Publius quotes extensively from Montesquieu's passage in The Spirit of the Laws in which he speaks of the advantages of confederate republics. Montesquieu characterizes such republics as "a kind of assemblage of societies" which, by means of association, increase their power in order to "provide for the security of the united body." Such a republic, Montesquieu argues, being itself composed of small societies, enjoys the internal happiness of small republics, while possessing with regard to external security, all the advantages of large monarchies. Publius quotes this passage at length, he explains, because it contains "a luminous abridgement of the principal arguments in favor of the Union." Publius even goes beyond Montesquieu in protecting the authority of the small republics who are to compose the new Union, saying that "the proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power" (FederalistNo. 9).
Even while urging ratification of a Constitution which grants new powers to the national government, Publius repeatedly emphasizes that the authority of that government is to be limited to certain enumerated objects; and he argues that the Constitution seeks to refer "the great and aggregate interests" of the nation as a whole to the national legislature while leaving the "local and particular" interests in the hands of the states. In so doing, Publius argues, both local circumstances and lesser interests are protected as well as "great and national objects" (Federalist No. 10). Thus, the principal purposes of the Union Publius summarizes as "the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries" (Federalist No. 23).6 Under the Constitution, writes Publius, the jurisdiction of the federal government is to be limited to those objects "which concern all the members of the republic [i.e., all the states], but which are not to be attained by the separate provisions of any." The state governments, Publius argues, are to retain their authority over all the purposes of government for which they can separately provide. Indeed, Publius continues, so important is the role of the states "that if they were abolished the general governinent would be compelled, by the principle of self- preservation, to reinstate them in their proper jurisdiction." (Federalist No. 14).
Again and again Publius emphasizes that the Constitution allows the states to retain their authority independently of the federal government. "An entire consolidation of the States into one complete national sovereignty," he writes in Federalist No. 32, "would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." (Emphasis in the original.) Indeed, Publius says, "the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor" is obvious from the proposed Constitution as a whole.
Far from abolishing or diminishing the legitimate role of the states, Publius notes in Federalist No. 21 and elsewhere, a major purpose of the proposed Union is to provide additional protection to the state governments.
Publius's concern with protecting local authority against the encroachments of federal power echoes the medieval principle of subsidiarity—a principle that remained very much alive in eighteenth-century England and its colonies and was eloquently defended by Edmund Burke in his attack on the French Revolution.
According to this principle, the state is perceived as an organic unit composed of a great variety of institutions—the family, the guild, the town, the university, the Church—each with its own intrinsic value. And it is primarily through these societal structures that men are habituated to virtue and attain practical wisdom. Public power, or government, stands above these organizations as the organic syntliesis of their mutually complementary functions, and its responsibility is to avoid interference in these societal institutions and to assist each to function properly within its sphere through the maintenance of peace and order. The state, as an organic whole, does not make the societal institutions superfluous. It must never abolish them or seek to usurp their purposes or functions; any attempt to do so is seen as a threat to the people's liberty.
The principle of subsidiarity was, then, the moderating factor between the omnipotence of the state and the absolute, undirected freedom of the individual.7 As Frederick Wilhelmsen writes:
The legitimate power of the king was the fruit of a hundred pacts solemnly entered upon by princes and subjects, themselves represented by a thicket of institutions which were the work of generations and even centuries of common experience.8 In his attack on the French Revolution, Edmund Burke defends this principle as a necessary function in the formation and development of a culture. As Peter Stanlis summarizes Burke's argument: "The basic institutions of society, the family, church, and state, and even all lesser institutions, were the necessary means [for Burke] by which the 'natural man' overcame his innate deficiencies in the intellectual, social, aesthetic, and moral virtues, and fulfilled his highest potential as individual and in society."9 These institutions, says Burke, are the seedplot of the social virtues: "To be attached to the subdivision, to the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love of our country, and of mankind."10 If man is torn away from the natural objects of his affections, if the normal order of progression for public affections (from the concrete local to the abstract remote relationships between people) is inverted, then these affections will be deprived of the soil necessary for their growth, and they will die, to be replaced by self-love and narrow self-interest.11 Moreover, since these institutions embody the customs, traditions, and wise prejudices of a people, their destruction in the name of uniformity would disconnect man from the source of wisdom and all that makes life rich and full. Men would be ground into "the dust and powder of individuality"12 and become shallow, selfish, and vain, and care neither for their fellow men nor for those who came after them. The possibility of community, ordered liberty, and civilization itself would disintegrate, and man would be led into Hobbes's war of all against all. "Nothing can be more absurd and dangerous," Burke writes in his Tract on the Popery Laws, "than to tamper with the natural foundations of society in hopes of keeping it up by certain contrivances."13 Moreover, when the people arc habituated to virtue through these natural relationships and affections, they will confer power "on those only, in whom they may discern that predominant proportion of active virtue and wisdom," thus ensuring that the people's liberty is secured and justice and the common good are pursued by those entrusted with the powers of government.14 Though Burke wrote these works after the ratification of the U.S. Constitution, the ideas from which they were derived were a part of the intellectual currency of English and American society and of the Whig political tradition from whence the American founders largely took their ideas.15
Just as in medieval thought interference by the sovereign in the institutions of society was seen as a threat to liberty and a violation of the legitimate powers of the king, Publius believes that, if the federal government should ever usurp the residual authority of the states over local matters, such an action would imperil the people's liberty. Publius notes that the ordinary administration of criminal and civil justice—which he refers to as "the great cement of society" and "the most powerful, most universal, and most attractive source of popular obedience and attachment"—was left in the hands of the state governments, thus ensuring that the primary affections of the people would be towards the states.
Jaffa suggests that the Framers preferred a much stronger central government vis-à-vis the states than the one established by the Constitution and that they made concessions to state power merely out of expediency: that, only by such compromises, could they induce the states to accept as much centralization of power as they did at that time.16 Yet Publius emphasizes repeatedly that the division of power between the federal and state governments is a positive good and that the states should jealously guard against encroachments from an overreaching federal authority.
Thus, in Federalist No. 51, Publius relies explicitly on the federal character of the Constitution to preserve the people's liberty. "In the compound republic of America," he writes, "the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." Thus, should the authority of the states be eroded or destroyed, one of the major barriers against tyranny would be eliminated.
On numerous occasions Publius describes how the state governments will control an unjust or tyrannical use of power by the federal government. The argument is most strongly stated in Federalist No. 26, where he says that the state legislatures "will always be not only vigilant but suspicious guardians of the rights of the citizens against encroachments from the federal government . . . and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent."17 With this in mind, Publius argues that the appointment of militia officers by the states "will always secure to them a preponderating influence over the militia" (Federalist No. 29)—thereby ensuring that the states have the ability "to take measures for their own defense [against a despotic federal government], with all the celerity, regularity, and system of independent nations" (Federalist No. 28).
Yet, clearly, this is an extreme case. Publius envisions a sufficiently moderating and salutary influence of the states on the federal government through the regular processes of the federal system to ensure that such extreme measures do not become necessary. Election of the Senate by the state legislatures would give the states a direct voice in the national councils (Federalist No. 62). Moreover, the election of senators in this manner, along with the use of the Electoral College to choose Presidents, would encourage the selection of men of talent and integrity who would be "the most able and most willing to promote the interests of their constituents" (Federalist No. 64). Publius explains how this is to occur:
As the select assemblies for choosing the President, as well as the State legislatures who appoint the Senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attentions and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence (Federalist No. 64). Publius assumes that even the House of Representatives, though elected directly by the people, will be chosen "very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures" (Federalist No. 45). Thus, not only do the state governments act as a check on the threat of tyranny but they also help to promote by a filtering process in which the best of the best are chosen for national office a national government that is characterized by wisdom, virtue, and ability. Contrary to the assertions of many Straussians, Publius recognizes that wisdom and virtue do not arise by reference to abstract natural rights that are somehow assumed by the Constitution. Rather, these qualities arise from the customs, traditions, wise prejudices, and religious beliefs that make up a community; and they are embodied in the state and national governments in the person of the community's "most enlightened and respectable citizens." Republican government is founded not on abstract principles, according to Publius, but on the better qualities of man's divided nature, which must be encouraged and promoted for self-government to work:
As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form . . . [otherwise] the inference would be, that there is not sufficient virtue among men for self-government . . . (Federalist No. 55). The nation's moral strength, then, is derived not from constant reference to the rights of man as an ultimate standard, on the one hand, nor from mere reliance on the ability of ambition to counteract ambition, on the other. Rather, Publius relies on the wisdom and good judgment of the people and their representatives to secure justice and the common good; and, in seeking these ends, he calls on them to be guided by what Patrick Henry called "the lamp of experience." One significant lesson of experience is that men are "ambitious, vindictive, and rapacious" and that they are frequently guided by momentary passions and immediate interests (Federalist No. 6). But experience also reveals that there is much virtue and wisdom to be found in men as well. In constructing the national government, therefore, Publius tries to minimize the effects of evil tendencies in man anid increase the likelihood that the nobler side of human nature will determine the policies and laws of the government. He urges ratification of the Constitution as providing for a system in which the best men in the country will be appointed to office (Federalist No. 3) and in which the chances of oppression will be minimized.
To achieve these ends, Publius advocates in Federalist No. 10 the creation of a large, extended republic, which increases the possibility that its representatives will be men of "enlightened views and sentiments." But, recognizing the darker side of human nature, he also takes the morally responsible course of trying to minimize its effects without destroying the liberty which can be used for either good or evil. He sees as an additional advantage of an extended republic that it will encompass a greater number of classes and interests, which will serve to prevent any one group from oppressing the rest and place greater obstacles in the way of "an unjust and interested majority." Such diversity of interests will render a common motive for arbitrary action less likely and decrease the probability that a majority bent on mischief will know its own strength. Because those groups in society whose interests are contrary to the common good will tend to counterbalance each other, representatives having "enlightened views and virtuous sentiments" will find themselves able to rule without being subjected to undue influence.
Yet it should not be assumed that for Publius the various classes and interests in society are simply a necessary evil which cannot be eliminated without simultaneously destroying liberty. He argues, on the contrary, that "a landed interest, a manufacturing interest, a mercantile interest, with many lesser interests, grow up of necessity in civilized nations." (Emphasis added.) In other words, these various interests comprise the very fabric of civilization, which is necessary for wisdom and virtue to be attained.
Though he is aware that such varied interests frequently lead to conflicts and oppression by one group over another and that they must therefore be held in check, Publius also recognizes that there are legitimate variations in society and that these differences must be accepted as an element of the common good. While Publius urges ratification of the Constitution as a means of promoting the commercial interests of the nation, for example, he also acknowledges that those interests ought to be regulated so that they serve the larger interests of society as a whole. In short, the selfish and destructive aspects of society's diverse interests must be controlled in order to serve the ends of justice and the common good.
What kind of men does Publius envision governing such a society? While he recognizes that men are not angels and that those elected must be controlled by the checks and balances of a republican form of government (Federalist No. 51), his primary emphasis is on the wisdom, patriotism, virtue, ability, and experience of those who are to be elected. Such men, he says, will be able to "refine and enlarge the public views" (Federalist No. 10) and to deliberate concerning the best means to promote the public good. "The aim of every political constitution is, or ought to be," Publius says in Federalist No. 57, "first to obtain for rulers men who possess most wisdom to discern and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust." In republican governments, he says, the mode of obtaining rulers is election; and, while the methods of preventing degeneracy are numerous and varied, the most effectual way is "such a limitation of the term of appointments as will maintain a proper responsibility to the people."
A republican government, therefore, requires the existence of sufficient wisdom, goodness, and public-spiritedness in the people that they are capable of recognizing and electing to office those who possess such virtuous qualities in the highest degree. It also requires that the people remain sufficiently vigilant so that a betrayal of their trust will not go unnoticed.
Yet, just as Publius sees the wisdom and virtue of those entrusted with the government as essential but insufficient means to ensure just policy, he sees the same attributes as essential but insufficient qualities in the people. It may at times become necessary, he says, for an institution which is ultimately answerable to the people but which also maintains a degree of stability and independence—i.e., the indirectly elected Senate [before ratification of the seventeenth amendment]—to interpose itself "until reason, justice, and truth can regain their authority over the public mind" (Federalist No. 63). Yet in no sense does Publius see this as a compromise of the ultimate sovereignty of the people. "The ultimate authority, wherever the derivative may be found, resides in the people alone," he writes in Federalist No. 46. Instead, the limitations on the immediate enactment of the majority will into policy are a means of ensuring that the people's sovereignty is exercised according to the principles of wisdom and prudence rather than on the basis of passion and narrow self-interest (Federalist No. 49).
By what principles, then, is America to be governed? Is it necessary to look to principles anterior to the Constitution in order to determine government policy? In one sense, Publius would say that it is. "Justice is the end of government. It is the end of civil society," he writes in Federalist No. 51. Yet, this end is not to be achieved by an appeal to absolute standards existing a priori. It is an end which must be achieved by good men, acting within an established political order, according to the collective experience of the nation (and of the lesser societies of which it is composed), and with due regard to the experience of mankind through the ages. And it must be pursued in a spirit of humility, moderation, and compromise—lest the established political order be destroyed in a vain attempt to achieve what cannot be.
In marked contrast to Publius's view, Jaffa asserts that the meaning of the Constitution is to be found in the "principles of the Declaration of Independence" and that contemporary constitutional interpreters, including judges, may simply ignore compromises reached by the Framers which, in their opinion, do not seem wholly consistent with the Declaration's abstract principles.18
Publius begs to differ. It is a major strength, he writes, that the Constitution is the result of compromise and that it does not display "that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination" (Federalist No. 37). Publius denigrates those who act on the basis of "utopian speculations" and cites "the accumulated experience of ages" as the best guide to judge of the proper form of government (Federalist No. 6). Dismissing "idle theories" of a "golden age,"19 he recognizes that "imperfections, weaknesses, and evils [are] incident to society in every shape." He, therefore, appeals to experience as "the least fallible guide of human opinions" and constantly refers to "that best oracle of wisdom, experience" (Federalist No. 15).20 While he recognizes that the American people should not be guided by "a blind veneration for antiquity" or custom (Federalist No. 14), he also believes that "Nothing can be more fallacious than to found our political calculations on arithmetical principles" (Federalist No. 55).
In advocating ratification of the Constitution, Publius appeals time and again to the lessons of history, including the experience of other nations and of the state governments. He emphasizes that many provisions of the federal Constitution were taken from like provisions in the state constitutions. He further emphasizes that the Constitutional Convention was composed of men "who have grown old in acquiring political information" and who carried into that convention "their accumulated knowledge and experience" (Federalist No. 2).
Still, Publius says, the most the convention could do was to avoid the past errors of other countries and those of the United States under the Articles of Confederation and to "provide a convenient mode of rectifying their own errors, as future experience may unfold them" (Federalist No. 37). Yet, no individual or group is authorized to abolish or alter the system on speculation of an improvement or a correction in the perceived errors of the founders. "Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act" (Federalist No. 78). The reason for strict adherence to the formal amendment process as the only method of changing the Constitution, Publius explains, is that both the institutions of man and political principles are obscure. Hence men must moderate their "expectations and hopes from the effects of human sagacity" (Federalist No. 37). "The purest of human blessings must have a portion of alloy in them," he writes in Federalist No. 41; "the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good." Thus, the greatest care and circumspection must be exercised before tampering with the fabric of the nation, and such change should be undertaken only after experience has revealed its necessity to the great body of the country.
The political system created by the Constitution both presumes and fosters a spirit of moderation and compromise, exercised by men of virtue, wisdom, patriotism, experience, and ability. In such a system, the sovereignty of the states is not of secondary importance but is one of the pillars of the constitutional edifice. The states, through their various subordinate communities, provide the source of the virtue and wisdom that are to guide the nation, and they act as a check on the potential abuse of power by those entrusted with it at the national level. In this system, appeals to "arithmetical principles" and a priori rights are rejected in favor of the lamp of experience and the good sense of the people and their representatives. In Federalist No. 37, Publius praises the process of compromise that led to the Constitution, saying: "It is impossible for the man of pious reflection not to perceive in it a finger of [the] Almighty hand . . . ." The incarnation of good in this world, if it is to be attained at all, is achieved through the give and take of consensus and compromise. It is in this way that justice is made possible.
Those who would seek to impose their own private vision of the good—built not on the lessons of experience and the common customs, traditions, and religious beliefs which constitute a people21 but on those "contrivances" or abstractions which Burke so roundly condemned—threaten to bring about the destruction of society rather than its perfection. Publius makes this quite clear in cautioning against a rejection of the Constitution in the hope of achieving a more perfect document. Quoting Hume, he writes:
"To balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments." These judicious reflections contain a lesson of moderation to all sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience (Federalist No. 85). Only time and experience, and the prudent application to particular circumstances of the lessons which they have to offer, can achieve a true and lasting good. And any such applications must be undertaken in the humble recognition of the fallibility of human reason. Such a recognition will lead to a spirit of compromise and an understanding that perfect good is only to be found in the next world. To attempt to achieve perfection in this world—through an uncompromising intellectual arrogance—will lead not to perfection but to anarchy or tyranny: in short, to hell on earth. Notes ‡ This article is from Humanitas, Vol. V, No. 1 1991. [Back] *Gregory S. Ahern is a Fellow in Constitutional Theory with the Center for Constitutional Studies. [Back]
1. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 319. [Back]
2. Ibid., 313. [Back]
3. Charles Kesler, "A Special Meaning of the Declaration of Independence: A Tribute to Harry V. Jaffa," National Review (July 6, 1979). [Back]
4. Kesler, "The Higher Law and 'Original Intent': The Challenge for Conservatism," The Intercollegiate Review (Vol. 220, No. 2, Spring 1987), 12. [Back]
5. See, for example, Kesler's characterization of the "genuine" standards of English common law as "right reason or as a determination of the natural law"—not, however, as determined by precedent and customary law but as the product of a judge's essentially private reason. "The Higher Law and 'Original Intent,'" 12. [Back]
6. See Federalist Nos. 41-44 for a complete discussion of these enumerated objects. See also Federalist No. 45. [Back]
7. Heinrich A. Rommen, The State in Catholic Thought (St. Louis: Herder Book Co., 1945), 299-302; see also Frederick D. Wilhelmsen, Christianity and Political Philosophy (Athens: University of Georgia Press, 1978), 151. [Back]
8. Ibid., 150. [Back]
9. Peter Stanlis, "Burke, Babbitt, And Rousseau: The Moral Nature of Man," in Irving Babbitt in Our Time (Washington, D.C.: The Catholic University of America Press, 1986), 129; see also Edmund Burke, Reflections on the Revolution in France (New York: Penguin Books, Ltd., 1982), 189. [Back]
10. Reflections, 135; see also Reflections, 315. [Back]
11. Stanlis, Edmund Burke: Selected Writings and Speeches (Gloucester, Mass.: Peter Smith, 1968), 506-517. [Back]
12.Reflections, 194. [Back]
13. Quoted in Stanlis, Edmund Burke and the Natural Law (Chicago: University of Chicago Press, 1953), 42. [Back]
14. Reflections, 192. [Back]
15. See H. Trevor Colbourn, The Lamp of Experience: Whig History the Intellectutal Origins of the American Revolution (Chapel Hill: University of North Carolina Press, 1965). [Back]
16. Harry V. Jaffa, "What Were the 'Original Intentions' of the Framers of the Constitution of the United States?" University of Puget Sound Law Review (Spring 1987), 371 and 377. [Back]
17. See also Federalist Nos. 28, 46, 52, 60, and 84. [Back]
18. Jaffa, op. cit., 385; see also Jaffa, "The Closing of the Conservative Mind," National Review (July 9, 1990), 41. [Back]
19. See also Federalist No. 28, where he condemns "the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction." [Back]
20. See also Federalist No. 7. [Back]
21.See Federalist No. 2. [Back]
When I contemplate the low intellect and political ambitions of the socialist majority in the three branches of government in California, relative to the above quotation, I shudder.
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Part of this argument contains the fallacy of four terms.
"To balance a large state or society (says he), whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments."
The standard Burke (and, you and I once learned, the Hayek) argument against big-L Libertarianism or any purely abstract plan of government.
OTOH, to be conservative in the sense of only wanting to defend what is (or agitating on behalf of what used to be), it seems, is to constantly play defense, and to endlessly reconcile yourself to yet another set of previous, successful encroachments upon tradition that inevitably become the tradition to be "conserved." When I think about how matter-of-factly modern-day conservatives reconcile themselves to Social Security (albeit in a different form), prescription drugs for the elderly and the like, I think that conservatism without reference to profound external principles has no there there, and is thus ripe for the plucking by whatever leftist movement strolls down the block. I'll be interested to see what you think.
Constantly playing defense is only in our recent years. In the start of the Republic, we were too much on the offensive. Seeing that Abstract Ideology and its dangers so well portrayed in the actions in France, the Federalists, fearing our small Republic in danger of being subsumed by the French Metaphysical excess, even assisted by Jefferson and his friends, passed the Alien and Sedition Acts even though libel legislation and related common law was very strong within the State governmental systems. We endangered the duel system that McDonald calls the "layered" government.
Subsiquently, Jefferson, on the sly, attempted a grand scheme of state nullification as invisioned in the original Kentucky Resoulutions, which Madison wisely watered down. As McDonald says of the pre-Constitution time period:
As time passed, several leading patriots came to a way of thinking about sovereignty that would make it logically divisible. That way was both subtle and simple: government at various levels had certain responsibilities, and inherent in those responsibilities was the power to carry them into execution. More specifically, Congress had sovereignty, the supreme lawmaking power, in regard to matters entrusted to them; the states had sovereignty in regard to matters entrusted to them; and the people reserved sovereignty in still other matters, refusing to entrust it to government at any level. Alexander Hamilton, James Wilson, and Oliver Ellsworth had reached that view before 1787, but the position could have little or no meaning prior to that time, for the Article of Confederation gave Congress no coercive power to carry out its assigned duties.This is why McDonald explains in his book States' Rights and the Union Imperium in Imperio -- a contradition of divided sovereingty first seen in our nations' birth-- as sovereingty wasn't previously considered divisible, only delegatable.The Constitution did give the general government broad powers within a limited sphere and thereby institutionalized a system of didided sovereingty. The result was a mixed blessing, for it gave rise to the doctrine of states' rights. Historically, champions of states' rights insisted that their doctrine was necessary to prevent the concentration of power to leviathan central government. To such ardent states' righters as John Taylor of Caroline and John Randolph of Roanoke, power concentrated in some remote center was the very definition of tyranny. One the opposite side, to such ardent nationalists as J. Q. Adams and Nicolas Biddle, vigorous action at the center was vital if the nation was to fulfill its promise and its destiny, attaining wealth and stature among the family of nations. Each position had merit, and in the event the United States, after a century if independence, managed both to remain unburdened by oppresive central authority and to take long strides toward greatness.
Now back to the specifics of the question you asked which I copied over to the start of my reply: This is what I believe makes non-ideological libertarians are such a valuable "bay leaf" to the mix of conservatism (without subscribing to their line of thought myself). They help us always harken back to that promise and destiny I emphasize above. To me, as a thread from earlier today discussed, it is the Animating Principles (not Propositonal) that can still animate us today.
You are saying just what Hayek says in the "Why I am not a conservative" essay. For all who quote it thinking that it means he is a ideological libertarian instead of the Old Whig he claims, it shows they haven't read the Constitution of Liberty and thought it through for themselves.
Subsiquently, Jefferson, on the sly, attempted a grand scheme of state nullification as invisioned in the original Kentucky Resoulutions, which Madison wisely watered down.
(snip)
The Constitution did give the general government broad powers within a limited sphere and thereby institutionalized a system of didided sovereingty. The result was a mixed blessing, for it gave rise to the doctrine of states' rights.
States' rights has been in abeyance for some time now, presumably because of its abuse at the hands of segregationists, but it seems to me that to some degree at least (by your description) the Jeffersonians won out to a degree, at least for a time. SO in that sense at least the post-Revolutionary was partly a radical time, not a conservative one.
One the opposite side, to such ardent nationalists as J. Q. Adams and Nicolas Biddle, vigorous action at the center was vital if the nation was to fulfill its promise and its destiny, attaining wealth and stature among the family of nations. Each position had merit, and in the event the United States, after a century if independence, managed both to remain unburdened by oppresive central authority and to take long strides toward greatness.
Note that I choose to underline a different part than you. Here, the more ordinary conservative view seems to have won out. A radical might have wanted the new nation to be aggressively uninterested in "stature among the family of nations."
Now back to the specifics of the question you asked which I copied over to the start of my reply: This is what I believe makes non-ideological libertarians are such a valuable "bay leaf" to the mix of conservatism (without subscribing to their line of thought myself). They help us always harken back to that promise and destiny I emphasize above. To me, as a thread from earlier today discussed, it is the Animating Principles (not Propositonal) that can still animate us today.
I'm glad to hear you say so. (Although to me red pepper might be better herbal analogy than basil. :) ) There is so much common cause between us, and yet the hair-splitting, especially over issues of vice, seems to loom unnecessarily large.
And yet I'm still concerned that at least mainstream conservatives have at least reconciled themselves to and perhpas have been coopted outright by the Big-Government activism of the 20th century. To them a world without federal Social Security, a world where the common law serves to police many matters that instead have been seized by the feds, a world where vice is seen as at most a state and local issue, is too scary to contemplate. And so they argue over precisely how government is to be expanded. One can easily imagine conservatives a few years from now being the most aggressive defenders of the welfare state because they are, after all, trying to conserve the status quo. When the left presses the expansive state, to do nothing other than to conserve is to constantly be under seige, if the size and scope of government is the arena of battle. (To be fair, conservatives wish to fight other battles as well.)
In politics, we must look for the Art of the Possible as Kirk says, and add those visions that are peculiar and appropriate for the Times.
But what does conservatism fight for? Will conservatives be fighting for the same things 50 years from now as now? What principles (and are they constant ones?) motivate a conservative to go to battle in the political arena?
IOW, it mobilizes all those groups and ideas you mention on behalf of what?
On behalf of the practical politics of honest representation and orderly governing. Not on the grand rationalistic scale that leftists, rationalists and others use wherein the invision government to be a vast tool to remake the world, society or man in general, but instead, real world modest limited and honest government. The hope of every nation.
OK. People of all political persuasions presumably favor honest government, but "limited" and "modest" are unabashedly normative goals that some favor and some don't. So there is some external philosophical principle being appealed to other than conserving of the status quo, and so there is some common ground with some libertarians.
Certainly. I have always posted such, even while being an strong critic of the ideological strain of that sect.
A conservative looking to motivation in the political arena, can call expect legislators making law to reflect on an Enduring Moral Order as it applies to the issue in question...Kirks first principle. That may, or may not be subscribed to by libertarians and is certainly not limited to "conserving".
Realizing Tradition is interpreted by the time, the conservative may look to governmental choices with an eye to the second principle of custom, convention and continuity as good standards. This is where a conservative, confronted with an established FDR piece of crap would want a continuity maintained during a transition while a Totalitarian Rationalist of any sort would want wholesale change or revolution.
Private Property, bound up with liberty, is preserved by Conservative action in defense of Prescription, not just on fights over supremacy of metaphysical arguements about rights and one right over another.
Prudence, the fourth principle, is readily seen in all branches of governmental decisions, and doesn't always line up with presevation or "conserving". Sometimes a new course is just plain prudent.
Variety and how it relates to equality under law, the fifth principle lends itself to giving a family a voice and not just the individual. It acknowledges goals far different from the lone man.
An awareness that man is imperfectable, the sixth principle, is always leading a conservative to shy from Utopian schemes...thats vastly different from just "conserving" and often at odds with rationalists.
Knowing Freedom and Property closely linked, the seventh principle, conservatives can be proactive on taxes, takings, restrictions and many other issues where that link is denied...all without simply "conserving".
Voluntary Community, the eighth principle, as marked by local and general agreement always leads the conservative to look to State government instead of Federal.
Kirk says: "Ninth, the conservative perceives the need for prudent restraints upon power and upon human passions.... A state in which an individual or a small group are able to dominate the wills of their fellows without check is a despotism, whether it is called monarchical or aristocratic or democratic." And this allows proactive diagnosis of real world needs and corruption.
And finally, in direct address to the issue of the hollowness of merely "conserving" conservatives are directed to be aware of: "Tenth, the thinking conservative understands that permanence and change must be recognized and reconciled in a vigorous society.... The conservative knows that any healthy society is influenced by two forces, which Samuel Taylor Coleridge called its Permanence and its Progression.... He thinks that the liberal and the radical, blind to the just claims of Permanence, would endanger the heritage bequeathed to us, in an endeavor to hurry us into some dubious Terrestrial Paradise. The conservative, in short, favors reasoned and temperate progress; he is opposed to the cult of Progress, whose votaries believe that everything new necessarily is superior to everything old."
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So I guess, that while I am always praising cautiously the libertarian contribution to conservative animating issues in government, even without them, there is much that a conservative can look to his principles for and find good politics as the Art of the Possible.
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