The Conservative Sensibility Read online

  Antonin Scalia, April 19911

  There is a paradoxical aspect of the American Founding. The foundational document, the Constitution, was written to provide institutional arrangements that could function and endure without the regular occurrence of exceptional leaders. The arrangements presuppose that, as Madison wrote with notable understatement in Federalist 10, “enlightened statesmen will not always be at the helm.”2 Machiavelli earned a bad reputation by severing the assessment of a politician’s job performance from the assessment of his moral qualities. Less radical thinkers—temperate Machiavellians—know that a morally exemplary leader is an occasional bonus in political life, and occasionally is imperative, but is not necessary for the normal functioning of a well-founded regime. But if George Washington had not been, as it were, waiting in the wings to assume the presidency, the Constitution’s authors might not have so boldly swept away the Articles of Confederation. And the office of president, of which the Articles had no analogue, might not have been created, at least not in the form it was given by the Constitutional Convention.3 Except it barely had a form. It was soft wax that would take the shape given it by occupants, especially the first one. And if Virginia’s ratifying convention had rejected the Constitution, as it might have done (the Constitution passed eighty-nine to seventy-nine; Richard Henry Lee, an ardent and potent opponent of ratification, was too ill to attend), Washington would not have been a resident of the United States and so could not have become president. Charles de Gaulle once mordantly said that the graveyards are full of indispensable men. Washington, however, truly was such a man.

  In the immediate aftermath of his election as the first president, Washington was unlike any subsequent American political figure. There was no significant public faction opposed to him as he traveled to New York City “in a large coach with six matching cream-colored horses, four servants, and two gentlemen on horseback.” But a few prescient observers fretted about presidential magnificence. Benjamin Rush, the Philadelphia physician who was a member of the Continental Congress and a signer of the Declaration of Independence, worried that Washington’s unanimous election was symptomatic of an “idolatrous and exclusive attachment,” and he warned, “Monarchy is natural to Americans.”4 George Washington chose to be inaugurated in a suit made in America from what was called “homespun” broadcloth, but it had gilt buttons that went nicely with the diamond buckles on his shoes.5

  Samuel Adams, who lived through the apotheosis of George Washington, said, “[L]et us beware of continental and state great men.” Adams’ republican reflex was shared by others. During President Washington’s first term, there occurred what Madison called “a small circumstance…worthy of notice”: The federal government proposed to issue its first coin—featuring Washington’s profile. The House of Representatives, sniffing the odor of monarchy, amended the relevant bill to substitute lady liberty for the first president, but the Senate rejected this amendment. So the House passed it again, by an increased margin, and the Senate relented.6 Actually, this was not a small matter: If it had become normal to honor sitting presidents on the common currency, every occupant of the office would have been given a vague but unmistakable imprimatur as somehow elevated above partisanship. Responding to Vice President John Adams’ belief that “neither dignity, nor authority can be supported in human minds, collected into nations…without a splendor and majesty,”7 the Senate spun a grandiloquent title for President Washington: “His Highness the President of the United State of America, and the Protector of their Liberties.”8 Such pomposity did not last, in part because Washington’s austere manner was sufficient to guarantee a republican form of dignity.

  Although Washington was as revered throughout the new nation as his unanimous election suggested, his relations with Congress began to fray almost immediately. In 1789, Thomas Jefferson, wishing to make a temporary return to the United States, requested an official leave of absence from Paris, where he was serving as US minister to France. Washington duly instructed John Jay, who was conducting foreign affairs, to grant it. Several senators objected that Washington had “transgressed his Powers” because he had not consulted with the Senate. One senator saw a danger “that some points may be conceded to him from a sense of his virtue & a confidence that he will never make an improper use of his power.” Only a few months into this first presidency, some senators bridled at the idea that their constitutional power to advise and consent to presidential appointments did not extend to the power to consent to the removal of executive branch officers. One senator warned that Washington’s “virtues will depart with him, but the powers which you give him will remain.” When the question of removal came to a vote, the Senate was evenly divided, so the man who would be Washington’s successor, John Adams, cast the deciding vote, affirming Washington’s power unilaterally to remove unsatisfactory subordinates. This was the first such exercise of this vice presidential tie-breaking power, and Adams wielded it to augment presidential power.9

  Since then, presidential power has been multiplied many times and manifested in myriad ways that would have amazed Adams. The ever-expanding powers and pretenses of the presidency have become a menace to America’s Madisonian balance of separated powers. The powers and pretensions of presidents should long since have become an embarrassment to the public. Upon what meat doth this our Caesar feed, That he is grown so great? The presidential office has fattened on the exigencies of a sprawling, intrusive government and on the (somewhat consequent) childishness of the citizenry.

  PRESIDENTIAL ALCHEMY

  Alchemy, which was the dream that chemistry could turn base metals into gold, is properly derided as a medieval superstition. Many contemporary Americans, however, have faith in political alchemy: The faith is that 270 electoral votes can do more than turn a person into a president, they can turn a lout into a gentleman, a mediocrity into a savant, a master of electoral politics into a moral tutor and embodiment of the national spirit. The modern presidency is a pernicious conflation of the function of a government executive with that of a semi-sacerdotal official catering to the spiritual care of people who seek from politics some excitements, satisfactions, and consolations that politics should not try to supply. Granted, an extensive republic is especially in need of an energetic executive, regardless of what Hamilton in Federalist 67 called the “aversion of the people to monarchy,”10 and regardless of the fear that, as Edmund Randolph said, any single executive is “the foetus of monarchy.”11 The anti-Federalist who wrote as the Federal Farmer conceded that in any populous polity “there must be a visible point serving as a common centre in the government, toward which to draw their eyes and attachments.”12 This was long before graphic journalism began to draw eyes to the one institution suited to be such a focal point, the presidency. Then came such journalism, and modern technologies enable presidents to communicate to the public without mediating journalists.

  William Allen White, the nationally prominent Kansas newspaper editor, told in his autobiography a story of President William McKinley at his home in Canton, Ohio, in the summer of 1901. When a photographer approached to take the president’s picture, McKinley laid aside his cigar, saying, “We must not let the young men of this country see their president smoking!” The camera was a harbinger of the graphic revolution in communication that would help enlarge the place of the presidency, the most photogenic piece of America’s government, in the nation’s consciousness. McKinley was a transitional figure. He had presided over America’s passage into imperialism in the war with Spain, and his assassination late in the summer of 1901 produced the first modern president, who proclaimed his office a “bully pulpit” to be used for shaping the public’s mind and morals. McKinley’s discarded cigar was evidence that presidents were acquiring the extra-constitutional role as role model. Eleven decades later, this seems as unhealthy as McKinley’s cigar now seems.

  No newspaper had posted a reporter at the White House in the nineteenth century. President Grover Cleveland unde
rwent cancer surgery on board a yacht in New York Harbor without the press knowing anything about it. But presidential ascendancy was well advanced by the time one of William McKinley’s secretaries began briefing the press at ten o’clock each evening. McKinley’s successor, the first president filmed by a movie camera, was the first charismatic president. Twenty-five years later, Teddy Roosevelt’s cousin would master a medium—radio—that reached over the heads of Congress and journalists, directly to the electorate. Twentieth-century American history was to a significant extent a story of the economic consequences of war and the political consequences of mass communication. Radio made FDR America’s first “intimate” public figure, one insinuating himself into everyone’s living room. FDR had none of Churchill’s eloquence, but he had a flair as a phrasemaker: “rendezvous with destiny,” “day that will live in infamy,” “economic royalists.” No wonder he once said that if he had not gone into politics he might have gone into a profession that burgeoned when he was restless in the 1920s: advertising.

  Modern communications technologies have changed governance to the advantage of the executive. In the middle of the twentieth century, for the first time since the city-states of ancient Greece, a national leader could be “seen and heard in real time by most eligible citizens.”13 The first presidential news conference was March 15, 1913, conducted by the president who, nine months later, would become the first president since Jefferson to deliver his State of the Union report in person, as an address to Congress rather than in a written report. The nation was nearing the end of the tradition that most presidential communication was primarily written, not spoken, and was directed to the legislative branch, not the public. Unmediated presidential communication crossed another frontier at 8:38 a.m. on May 15, 2015: “Hello, Twitter! It’s Barack. Really!” First name? Two exclamation marks? Really?

  The ubiquity of presidents in American life is both cause and effect of what Gene Healy calls “the cult of the presidency,” which he thinks reveals an American hunger for “redemption through presidential politics.” Progressives and conservatives basically “agree on the boundless nature of presidential responsibility.” Progressives agree for reasons of progressivism: They think boundless government is beneficent and that presidents claiming a unique stature as embodiments of the nation can arouse public support to bend Congress into compliance, thereby vitiating the Founders’ blunder, the great impediment to energetic government acting with dispatch, the separation of powers. Conservatives—actually, faux conservatives—agree on the boundless nature of presidential responsibility because they have forgotten their raison d’être. They practice situational constitutionalism, favoring what Healy calls “Caesaropapism” as long as the Caesar-cum-pope wields his limitless powers in the service of things they favor.14

  The archived copy of President Franklin Roosevelt’s first fireside chat with a national radio audience does not contain the words with which he began the broadcast: “My friends.” Americans are now so used to the spurious intimacy of omnipresent presidents that they do not pause to wonder: Do we really want presidents pretending to be our friends? What does this chumminess reveal about them? And about us? “Tell me your troubles,” said Roosevelt in another fireside chat with a radio audience.15 Try to imagine George Washington—or any president prior to FDR—talking like that.

  In 1960, the nation elected a president concerning whom the word “charisma”—a term drawn from Christianity—came into common use. That year an eminent political scientist described the presidency as “the incarnation of the American people in a sacrament resembling that in which the wafer and the wine are seen to be the body and blood of Christ.” Good grief. In 1992, Governor Bill Clinton promised a “New Covenant” between government and the governed. That, Healy notes, was “a metaphor that had the state stepping in for Yahweh.” Hillary Clinton, stepping in for Sigmund Freud, diagnosed America as in need of presidential ministrations for “a sleeping sickness of the soul” because Americans do not know “who we are as human beings in this postmodern age.”16 The idea of presidents dogpaddling around in such shallow philosophical waters in order to answer existential questions no longer strikes people as ludicrous. Neither were there wholesome guffaws when, in 2008, Michelle Obama said that her husband “will never allow you to go back to your lives as usual, uninvolved, uninformed.”17 Leave aside the insult—how did she know Americans were uninvolved and uninformed? But do Americans really elect politicians to yank them out of their usual lives?

  Americans are mistakenly said to be political cynics. Actually, they are besotted presidential romantics. When, during the 1992 campaign, Bill Clinton, President George H. W. Bush, and Ross Perot appeared in a town hall–style debate, a member of the audience asked them this question: “How can we, as symbolically the children of the future president, expect…you to meet our needs, the needs in housing and in crime and you name it?” If you can name it, presidents are responsible for it. Politicians understand the infantilization of the public. “The average American,” said President Richard Nixon, “is just like the child in the family—you give him some responsibility and he is going to amount to something.” So, personal responsibility is dispensed to individuals from on high, by presidents. Government, said Vice President Al Gore, should act like “grandparents in the sense that grandparents perform a nurturing role.”18 “I think,” wrote the poet Randall Jarrell, “that George Washington would be extremely afraid of the traffic on the Merritt Parkway, but I think that we would be afraid of George Washington.”19 Indeed, his remote, austere demeanor would be not merely off-putting but would seem to be a reproach.

  Washington was acutely aware that he was fated to improvise a presidential manner congruent with republican simplicity. He avoided what has now encrusted the presidency—a vulgar grandiosity, which is a modern accretion. President James Monroe was faulted for excessive formality because he complained that diplomats constantly dropped in on him uninvited and expected tea. President John Quincy Adams regularly swam naked in the Potomac, accompanied only by a servant in a canoe. All day long citizens wandered into his White House to pester him for loans, jobs, or other favors. A British visitor shrank from the “brutal familiarity” with which President-elect Andrew Jackson was treated when traveling from Tennessee to Washington. It was not as brutal as the treatment White House furniture got from the crush at Jackson’s inaugural blast, which was an open house. President John Tyler founded Washington’s metropolitan police essentially to guard the White House, but President Franklin Pierce in 1853 became the first president to have a personal guard (an old army buddy). Enemy cannon were across the river and spies infested the city, but almost anyone at any time could wander into Lincoln’s White House. Through the late nineteenth century presidents regularly received the public each day in the East Room. President Ulysses Grant had a staff of three. President Grover Cleveland answered the White House doorbell himself.20 Until FDR, there was a New Year’s Day receiving line for anyone who joined the queue out on the street. Security became serious during World War I, but then until Dec. 7, 1941, the White House lawn was again a public park. Portions of the mansion’s first floor were open to everyone. You could even park on the narrow street between the White House and what is now the Executive Office Building. Harry Truman was the last president to live approximately as his countrymen did and do: He strolled across Pennsylvania Avenue to do his banking. His normality had something to do with the fact that he was the last president before television turned America into a wired nation and made presidents constant presences in the nation’s living rooms: In his only presidential campaign, that of 1948, he appeared on television once, for three minutes, urging people to vote.

  Presidential grandiosity manifests itself in many ways. When a young military officer directed Lyndon Johnson toward his helicopter, the president responded, “Son, they’re all my helicopters.” This confusion between himself and the office he temporarily occupied, and his equating the office with
the assets at its disposal, involved a kind of derangement that probably had something to do with Johnson’s Great Society and Vietnam overreaching. Be that as it may, one source of the modern presidency’s grandiosity, its rhetorical dimension, has great potential for good and for mischief.

  Ronald Reagan said that he sometimes wondered how presidents who had not been actors had been able to function. He was on to something. Two of this century’s greatest leaders of democracies, Churchill and de Gaulle, had highly developed senses of the theatrical element in politics. FDR did, too. So, however, have evil leaders in what Churchill called this age of “mass effects.” Hitler, Mussolini, and Castro all mastered ceremonies of mass intoxication. A political actor, be he good or evil, does not deal in unreality. Rather, he creates realities that matter—perceptions, emotions, affiliations. An actor not only projects, he causes his audience to project certain qualities—admiration, fear, hatred, love, patriotism, empathy. In some nations the actor’s role has been assigned to a constitutional monarch. The role is not necessarily incompatible with republican values, but it is inherently problematic.

  Rhetoric has a tainted reputation in our time, for several reasons. One is the carnage produced by murderous demagogues. Another is the public’s uneasiness about modern means of mass manipulation, including propaganda and advertising. But rhetoric is indispensable to good politics and can be ennobling. Ancient political philosophers, such as Aristotle and Cicero, and the best modern politicians, such as Lincoln and Churchill, understood that rhetoric that is systematic eloquence can direct the free will of the community to the good. At its best, rhetoric does not induce irrationality, it leavens reasoning, fusing passion to persuasion. Some people, said Michael Oakeshott, the British political philosopher, consider government “an instrument of passion; the art of politics is to inflame and direct desire.” On the other hand, a person with a conservative sensibility “understands it to be the business of government not to inflame passion and give it new objects to feed upon, but to inject into the activities of already too passionate men an ingredient of moderation; to restrain, to deflate.”21