The Conservative Sensibility Read online

  He responded to the act with a controlled, canny, patient but implacable vehemence. So, the most luminous career in the history of American democracy, the most morally edifying career in the history of world politics, took its bearings from the principle that there is more to the American purpose, and more to justice, than majorities having their way. If justice is what Thrasymachus said it was in his debate with Socrates in Book I of Plato’s Republic—if justice is the interest of the strong—then two conclusions follow. One is that Douglas was right in arguing that justice regarding slavery in the territories was whatever pleased the strongest faction—a majority—in the territories. The other conclusion is that in a democracy, the crucial machinery of justice is the adding machine—that justice is known, simply and decisively, when votes are tabulated. Lincoln knew better.

  Fifty years ago I submitted to the politics department of Princeton University a doctoral dissertation titled “Beyond the Reach of Majorities: Closed Questions in an Open Society.” The title came from the Supreme Court’s 1943 opinion in West Virginia v. Barnette, the second of the flag salute cases involving public school children who were Jehovah’s Witnesses. As told by Noah Feldman, the two cases, which culminated in one of the most striking reversals by the court in its history, began on an October morning in 1935 in Minersville, Pennsylvania, when William Gobitas (the Supreme Court misspelled the family’s name as Gobitis), a ten-year-old fifth grader, refused to salute the flag during the Pledge of Allegiance. “The teacher,” Feldman writes, “tried to force his arm up, but William held on to his pocket and successfully resisted.” The next day his sister Lillian, eleven, a seventh grader, also refused to salute the flag, explaining to her teacher, “The Bible says at Exodus chapter 20 that we can’t have any other gods before Jehovah God.”5

  At that time, Feldman explains, the flag salute, as Americans gave it, “closely resembled the straight-arm Nazi salute, except that the palm was to be turned upward, not down.”6 A national leader of the Jehovah’s Witnesses had recently given a speech denouncing the Nazi salute, and several Witnesses’ children around the country had come to the same conclusion that Lillian explained to her teacher: Saluting the flag was idolatry. Lillian and William were shunned at school, the Gobitas family grocery store was threatened with violence and boycotted, the school district changed saluting the flag from a custom to a legal duty, and the Gobitas children were expelled from school.

  Their case wended its way to the Supreme Court as war clouds lowered over the world, a context, Feldman notes, that was not favorable to the Witnesses. They were pacifists, had opposed US participation in World War I and were opposing any US involvement in any war in Europe. In June 1940, just days after Nazi troops marched into Paris, the court ruled 8–1 that the school district had the power to make saluting the flag mandatory. The opinion for the court was written by Justice Felix Frankfurter, a former member of the national committee of the American Civil Liberties Union. He was Jewish and had been born in Austria, which the Nazis had occupied in 1938. As a Jew, he was anxious to avoid practices that allowed schoolchildren to be treated differently because of their religion. The case Minersville v. Gobitis dealt, he said, “with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.”7 He said his personal opinion was that the school board should allow the Witnesses’ children their dissent. He was, however, as most political progressives had been for many decades, an advocate of judicial restraint, and he thought the court should acknowledge that the elected school board had made a defensible, meaning reasonable, choice expressing the will of a majority of its constituents. To put the point in judicial language that would become familiar in subsequent decades, the school board’s policy passed the “rational basis” test.

  The eight members of the court’s majority had all been nominated by President Franklin Roosevelt, whose anger with the court’s refusal to be deferential toward Congress’ enactment of New Deal legislation led to his ill-fated attempt to “pack” the court. The lone dissenter in Gobitis was Harlan Fiske Stone, who had been appointed by President Calvin Coolidge. Minersville’s flag salute law, wrote Stone, was “unique in the history of Anglo-American legislation” because it forced the children “to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” So, deference to the school board’s legislative judgment amounted to “the surrender of the constitutional protection of the liberty of small minorities to the popular will.”8 As Feldman says, “In 1940, the idea that the Court should protect minorities from the majority was not the commonplace it would later become. Stone had first introduced it in 1937, burying it in a footnote.”9 Indeed, this became the most famous and consequential footnote in the court’s history, one we shall consider in Chapter 4.

  Taking their cue from the court’s decision, many communities made flag saluting mandatory. There was an upsurge of violence against Witnesses, including that by a mob of 2,500 who burned down the Witnesses’ Kingdom Hall in Kennebunk, Maine. In 1943, however, with a world war raging, the court agreed to hear another flag salute case concerning Jehovah’s Witnesses, for the purpose of overturning the decision it had reached just thirty-six months earlier. Writing for the majority in a 6–3 decision, Justice Robert Jackson, who had not been on the court when Gobitis was decided, said: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.…Fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”10

  First as a graduate student, then briefly as a professor of political philosophy, and now for five decades as a Washington observer of American politics and governance, I have been thinking about the many vexing issues implicated in these two flag salute cases. The issues include the source of American rights, the nature of the Constitution and the role of the Supreme Court in construing it, and what fidelity to democracy does and does not require regarding the rights of majorities. There is, I believe a coherent philosophy that provides intellectually satisfying and politically prudent answers to these and other questions. It is American conservatism, rightly understood.

  Such American conservatism takes its bearings from the American Founding, properly understood. William James called philosophy “a peculiarly stubborn effort to think clearly.”11 My effort is to explain three things: the Founders’ philosophy, the philosophy that the progressives formulated explicitly as a refutation of the Founders, and the superiority of the former. An explanation of terminology is helpful here. Although it distresses some American conservatives to be told this, American conservatism has little in common with European conservatism, which is descended from, and often is still tainted by, throne-and-altar, blood-and-soil nostalgia, irrationality, and tribalism. American conservatism has a clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders’ thinking. The price of accuracy might by confusion, but this point must be made: American conservatives are the custodians of the classical liberal tradition.

  In the Anglophone world, this tradition began with Thomas Hobbes and John Locke, in the context of authoritarian governments that ruled confessional states, those with established churches. Liberalism acquired its name, and became conscious of itself, in the eighteenth and nineteenth centuries, when liberty was threatened by the forces of order—by institutions and instruments of the state, often operating in conjunction with ecclesiastical authorities. Liberalism championed individualism and the rights of the individual against those forces of enforced order. The label “liberal” was minted to identify those whose primary concern was not the protection of community solidarity or traditional hierarchies, but rather was the expansion and protection of individual liberty. Liberals were then those who considered the state the primary threat to
this. Liberals espoused the exercise of natural rights within a spacious zone of personal sovereignty guaranteed by governments instituted to serve as guarantors of those rights. Today, when the French describe—disparage, really—Margaret Thatcher’s kind of free market doctrines as “neo-liberalism” their terminology is not mistaken. For many years now, American conservatism has been the strongest contemporary echo of this liberalism in the trans-Atlantic world.

  American progressivism developed as an intended corrective to traditional liberalism. Progressives aimed to redress what they perceived as a dangerous imbalance. Their goal was to strengthen the powers of order—of the state—which had supposedly become anemic relative to the surging powers of entities and autonomous forces in America’s industrial society—banks, corporations, railroads, trusts, business cycles. In Europe today, the too few people who think the way American conservatives do are commonly called liberals, and people who think as American progressives do are called social democrats. In America today, there are a few intellectually fastidious people who think as eighteenth- and nineteenth-century liberals did, but who are reluctant—perhaps for what they consider reasons of historical accuracy—to call themselves conservatives, so instead call themselves classical liberals.

  In recent decades, many Americans who were comfortable identifying themselves as liberals, and who prospered politically by doing so, have come to refer to themselves as progressives rather than liberals. They have done this for tactical reasons: The label “liberal” was devalued by association with various governance disappointments. Progressives are, however, terminologically accurate. Progressivism represents the overthrow of the Founders’ classical liberalism.

  The progressives’ indictment is that the Founders’ politics is cramped and uninspiring because it neither aspires to, nor allows for, the integration of the individual’s spiritual needs and yearnings with the individual’s political identity and activities. To this indictment the American conservative’s proper response is a cheerful, proud plea of guilty. The world has suffered much, and still suffers, from politics freighted with the grand ambition of unifying the individual’s social and moral lives. Such politics inevitably aims to fuse individuals into an organic community, with little social space in civil society for institutions—civic, religious, commercial—that can respond to human needs with politics largely left out.

  One lesson of the twentieth century is that the comprehensive politics of the integrated state promises fulfillment but delivers suffocation. In contrast, American patriotism is “an intricate latticework of ideals, sentiments and overlapping loyalties” that involves politics but is not primarily about politics.12

  Conservatism’s celebration and protection of individual autonomy does not, as many critics now charge, condemn the individual to a desiccated life of shriveled social attachments or to the joyless pursuit of material enjoyments. Conservatism neither advocates nor causes individuals to be severed from familial, communal, or religious affiliations. Rather, it demarcates a large zone of individual sovereignty in which such affiliations can be nurtured. By pruning the state’s pretentions and functions, conservatism prevents the emergence of an enveloping state, in the shade of which other institutions cannot thrive, and often wither. In a political setting that insists upon the reality of individual autonomy and the morality of self-reliance, some find solace in an omnipresent and omniprovident state. Conservative governance should minimize opportunities for indulging this temptation.

  Conservatism’s great gift is preservation of the social space for the personal pursuit of higher aspirations. If people fail to use this space well, that is their failure, not conservatism’s.

  THE ADJECTIVE

  In the phrase “American conservatism,” the adjective carries a lot of weight. Conservatism became conscious of itself as a political philosophy through the writings of Edmund Burke. Subtle and profound, his works are rich in prudential lessons that remain germane. Nevertheless, his thinking is in the European tradition of throne-and-altar conservatism. America has no throne, and most Americans want altars kept apart from the state’s business. Burke’s conservatism was, in large measure, produced by British premises and French events. European conservatism has generally sought to conserve institutions and practices, such as social hierarchies and established churches, that were produced by the slow working of historical processes spanning many centuries. American conservatism seeks, as Alexander Hamilton did in the Republic’s infancy, to conserve or establish institutions and practices conducive to a social dynamism that dissolves impediments to social mobility and fluidity. So American conservatism is not only different from, it is at bottom antagonistic to British and continental European conservatism. The latter emphasizes the traditional and dutiful, with duties defined by obligations to a settled collectivity, the community. Because American conservatism is about individual liberty, it cultivates spontaneous social order and hence encourages novelty.

  In the stream of Western political thought, American conservatism is exceptional in a way that is related to the theory of “American exceptionalism.” The multifaceted postulate of American “exceptionalism” includes one or more of these ideas: Americans were born exceptionally free from a feudal past, and hence free from an established church and an entrenched aristocracy. This made them exceptionally receptive to intellectual pluralism and exceptionally able to achieve social mobility. America had an exceptional revolution, one that did not attempt to define and deliver happiness, but one that set people free to define and pursue it as they please. Americans codified their Founding doctrines as a natural rights republic in an exceptional Constitution, one that does not say what government must do for them but what government may not do to them. And because the Founding experience was the result of, and affirmed the potency of, human agency, Americans are exceptionally impervious to bleak modern anxieties about human destiny being decisively shaped by vast impersonal forces. America’s central government is exceptionally constructed to limit the discretion of those in power by balancing rival centers of power.

  All of these ideas are related to the doctrine of natural rights. It supposedly guarantees a substantial zone of individual autonomy by guaranteeing limited government. But suppose it does not do that?

  Everything, including this or that aspect of America’s supposed exceptionalism, is perishable. The modern world has learned that there are more forms of social entrenchment, more impediments to social mobility, than those that descended from feudalism. By now, America’s government has long been involved in defining and delivering happiness, understood as material well-being and freedom of self-expression. For at least half a century, it has been impossible to believe that the Constitution created a government that remains limited by the mere enumeration of its powers. Trying to restrain the modern executive, which is the motor of the administrative state, by depending on the Madisonian architecture of checks and balances seems increasingly akin to lassoing a locomotive with a cobweb. Furthermore, and most important, Americans’ sense of their exceptionalism is increasingly attenuated because of their absorption of important aspects of European social thought since the American Founding. The doctrine of natural rights is the most solid foundation—perhaps the only firm foundation—for the idea of the political equality of all self-directing individuals. But what happens when people begin to wonder to what extent individuals actually are self-directing? Such wondering is prompted when the very concept of the self seems to have become problematic. As we shall see, consciousness has become a political problem and a political project.

  “It has been our fate as a nation,” the historian Richard Hofstadter said, “not to have ideologies but to be one.”13 This sentence sacrificed accuracy for felicity. Writing in the middle of the twentieth century, Hofstadter surely understood that the United States had long since ceased to be a nation embodying one ideology. Since early in that century, and especially since the New Deal, there have been two political philosophies contending
for supremacy. The original one, the Founders’ natural rights philosophy, began losing ground to progressivism more than a century ago and today is seeking to regain lost ground. What progressives aimed for, and largely achieved, was a second American Founding, this one taking its bearings not from unchanging nature but rather from history, which is a river of change.

  As Margaret Thatcher said, European nations were made by history, the United States was made by philosophy. Unique among all nations, the United States knows precisely when and exactly why it was founded. American conservatism is an ongoing meditation on America’s Founding, which means on the Declaration of Independence and on the Constitution, which should be construed in the bright light cast by the Declaration’s affirmation of natural rights. The American project, distilled to its essence, was, and the conservative project is, to demonstrate that a government constructed on the assumptions of natural rights must be limited government. The natural rights theory is that individuals in the state of nature possess rights that pre-exist government; that government is created for the limited purpose of securing those rights; and that the individual surrenders some sovereignty to government on the basis of a rational calculation that government secures more sovereignty than it requires to be surrendered.

  One cannot do political philosophy without engaging in intellectual history. “The safest general characterization of the European philosophical tradition,” said Alfred North Whitehead, “is that it consists of a series of footnotes to Plato.”14 The American tradition of political philosophy, which flowered during the ferment of the American Revolution and the framing of the Constitution, was consciously trans-Atlantic. It drew particularly heavily from John Locke, who knew he was arguing with, among others, Hobbes, who in turn was arguing with various contributors to an argument running back to, of course, Plato. If America can be said to have a national political philosophy, it comes from a political philosopher from another nation. Locke, whom we shall meet again in Chapter 1, reasoned that all persons are naturally free, meaning free in a state of nature, and would surrender portions of their freedom to a government of their creation in order to prevent injuries or inconveniences. And in order to achieve positive goals that can be achieved best, or only, collectively, through political action. Because individuals are equal in possession of freedom, government’s fundamental purpose is to provide them equal protection in the exercise of their freedom to pursue happiness.