The Conservative Sensibility Page 6

  Consent is the primal act of a republican citizenry; the right to consent to government is the right to insist on the recognition of other rights. The right to consent presupposes the right to be persuaded. This presupposes in the citizenry a certain threshold of rationality, hence a durable claim to respect. A government that is required by the ethos of republicanism to persuade is a government inherently secondary to that which must be persuaded, a society composed of self-determining individuals. Such a government need not be uninterested in improving the souls of its citizens, but it must do so by respecting their reasonableness and thereby encouraging them to subordinate passions to reason. When Aristotle defined human beings as political animals and as language-using animals he was making a single argument for democracy, meaning government by the consent of the governed. Human beings can speak to one another, and to their leaders, who can speak back. Human communities feature constant talk about alternative arrangements for living together. The reasons for preferring some arrangements over others require us to speak about justice. Which is why, in America’s constitutional order, the First Amendment comes first.

  America’s Founders, and particularly the wisest and most subtle of them, James Madison, insinuated their unsentimental view of self-interested human beings into the Constitution’s separation of powers. In Federalist 51, Madison said: “Ambition must be made to counteract ambition.” The self-interests of rival institutions will check one another. Madison continued: “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” So, said Madison, we must have a policy of “supplying, by opposite and rival interests, the defect of better motives.”38 But neither Madison nor the other Founders meant that we should presuppose that America could prosper without anyone having any good motives. Such motives are manifestations of good character, and America’s Founders did not suppose that freedom can thrive, or even survive, without appropriate education and other nourishments of character. They meant education, broadly understood to include not just education by schools but also by all the institutions of civil society that explain freedom and equip citizens with the virtues freedom requires. These virtues include industriousness, self-control, moderation, and responsibility, virtues that reinforce the rationality essential to human happiness.

  When Madison, like the Founders generally, spoke of human nature, he was not speaking, as modern progressives do, of something malleable, inconstant, fluid, and evolving, something constantly formed and re-formed by changing social and other historical forces that can and should be controlled and manipulated by government. When people today speak of nature, they generally speak of flora and fauna—of trees and animals and other things not human. But the Founders spoke of nature as a guide to, and measure of, human action. They thought of nature not as something to be molded for human convenience but rather as a source of norms to be discovered. They understood that natural rights could not be asserted, celebrated, and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view partially derived from and buttressed by the teaching of Biblical religion: Nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator. This is the Creator who endows us with natural rights that are inalienable and universal—and hence the foundation of democratic equality. And these rights are the foundation of limited government—government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.

  A government thus limited is not in the business of imposing its opinions about what happiness the citizens should choose to pursue. Having such opinions is the business of other institutions—private and voluntary ones, including religious ones, that nourish the conditions for liberty. The Founders did not consider natural rights reasonable because religion affirmed them; rather, the Founders considered religion reasonable because it secured those rights. There may, however, be a cultural contradiction in modernity. The contradiction is that although religion can sustain liberty, liberty does not necessarily sustain religion or the other preconditions for its own security. This is of paramount importance because of the seminal significance of the Declaration of Independence’s second paragraph:

  We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

  America was born with an epistemological assertion: The important political truths are not merely knowable, they are known. They are self-evident in that they are obvious to any mind not clouded by ignorance or superstition. It is, the Declaration says, self-evidently true that “all men are created equal” not only in their access to the important political truths, but also in being endowed with certain unalienable rights, including the rights to life, liberty, and the pursuit of happiness. Perhaps the most important word in the Declaration is the word “secure”: “[T]o secure these rights, governments are instituted among men.” Government’s primary purpose is to secure pre-existing rights. Government does not create rights; it does not dispense them. This assumption, the bedrock premise of American political thought, has hardly been uncontroversial in our time. It has been at the center of the controversy that has shaped our political debate for more than a century. Since the rise of progressivism, the debate has been between adherents of the Founders’ thought and progressives who have confidently advocated leaving that thought behind.

  In his first inaugural address, addressing himself to “my dissatisfied fellow countrymen,” Abraham Lincoln expressed “a patient confidence in the ultimate justice of the people.”39 Note his cagey nuances. Confidence must be patient because the justice of the people can be counted on only ultimately. He was delicately stepping onto contested ground where Jefferson had preceded him. In 1801, in Jefferson’s first inaugural address, he said, “Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”40 Jefferson’s formulation is not altogether clear. When he said the majority “is” to prevail in all cases, was he merely making a neutral prediction? Or was he enunciating an ethical norm? Did he mean that the majority inevitably will prevail, or that it ought to? If he meant either, he was soon to be shown to be wrong.

  Two years later, in Marbury v. Madison, Chief Justice John Marshall, the cousin whom Jefferson detested, established judicial review. This would temper the dubious assumption and dangerous practice that under America’s written Constitution the majority, understood as the voice of a representative, majoritarian process, must and should have its way. In many cases, majorities have a right to have their way even when they are unreasonable. Majorities have vigorously exercised this right throughout American history. Jefferson said majorities have no right to violate minority rights, but he did not say why majorities do not have this right. If he meant that no majority has a right to violate the natural rights of any person or group of persons, then the will of the majority should not only not prevail in all cases, it should not prevail in many cases. We shall recur to this subject in Chapter 4, where we examine the justification for, and the increasingly urgent need for, judicial supervisi
on of democracy.

  This supervision is one answer to the question that fascinated Alexis de Tocqueville. He understood that this nation would be the great laboratory in which mankind might discover whether “democratic liberty” can flourish without giving way to “democratic tyranny.” Martin Diamond, who masterfully placed the Founders in the stream of Western political thought, noted the philosophic pedigree of an interesting fact about the writing of the Declaration of Independence. In Jefferson’s original draft he wrote that all men “are created equal and independent.” The word “independent,” Diamond said, “refers to the condition of men in the state of nature, to their utter nonsubordination, in the state of nature, to each other or any common political sovereign.”41 Democracy would be the mechanism of political subordination. But it would be democracy limited, tempered and refined by institutional architecture intended to guarantee that limited subordination through democracy would be instrumental to the enjoyment of liberty. And the regime of liberty would mean all persons having equal rights to become unequal.

  The Declaration, said Diamond, was, in Lincoln’s language, “conceived in liberty,” meaning that “the deepest stratum of American political life”—“the very foundation of American political existence”—is the liberty in which the Declaration was conceived. All individuals are “created equally entitled to that liberty.”42 The nation that began four score and seven years before 1863—that began with the Declaration—had, congenitally, meaning from birth, the single defining goal of equal political liberty. The Declaration did not stipulate a form of government. It was silent on that subject as it declared that “these united colonies are, and of right ought to be, free and independent states.” There was a war for independence to be won, and the Articles of Confederation to be improvised among the “united colonies,” which would lead to the constitutional convention. All this occurred in just eleven tumultuous years that culminated in the nation committing itself in the Constitution to a democratic form of government to secure equal liberty for themselves and subsequent generations. It was, however, as Diamond wrote, “a sober and cautious commitment.”43

  The constitutional architecture was created by men sobered by deep reading about earlier republics, and made cautious by hard experience during what historians have termed the “critical period” of American history under the Articles. The Constitution’s Framers created, Diamond said, “a democratic government carefully safeguarded and structured so as to enhance the excellences of democracy while guarding against its dangers and defects.” The fact that the Framers spoke often about those dangers and defects has led many, following the lead of the progressive historians of the first half of the twentieth century, to portray the Framers as reluctant democrats, or even as anti-democratic. However, they spoke insistently about the difficulties of democracy (e.g., Edmund Randolph on its “turbulence and follies”) because they had no intention of creating any other form of government. This explains the Declaration’s silence, or what Diamond calls its neutrality, about the proper form of government. The silence reflected not uncertainty but consensus about the basic matter: America’s government would be based on mechanisms for securing the regularly recurring consent of the governed. But as Diamond said, the Declaration’s silence also underscored this: “[D]emocracy is made, not the end of government, but merely the governmental means for the securing of the true end, namely, the people’s equal liberties.”44

  So, the Constitution follows logically from the Declaration; the Constitution is entailed, Diamond argued, by the Declaration’s implicit “subordination of democracy to liberty.” By its very silence about the proper form of government, the Declaration proclaims that all forms of government are to be judged by how instrumental they are to the project of securing inalienable rights. Thus, wrote Diamond, “the Declaration teaches Americans to view even their own democratic self-rule coolly” because any form of government is to be judged against a standard higher than itself. The Constitution, with its separation of powers and other provisions for refining and elevating public opinion, reflected what Diamond called “the American people’s sensible self-doubt.”45 The fact that they had decided that democracy was the best instrument for securing equal liberty did not mean that it was not risky. The Founders understood, from their study of history and their personal experiences, that democracy is susceptible to degeneracy, folly, and oppression. Nevertheless, the Founders’ unsentimental embrace of democracy was a firm embrace. They were modern men who, armed with what they considered a new science of politics, consciously turned their backs on the ancients. Diamond understood the rupture between ancients and moderns:

  The ancients saw man as capable of reaching nearly to the divine and took their bearings from the highest possibilities of human nature. While the ancients had no illusions about the capacity of most men, they thought that every resource of the political art should be employed to draw out and up the potential of the exceptional few. Their very idea of human nature led classical thinkers to make the preeminent political task the bringing toward completeness or perfection the relative few who were naturally capable of fulfilling their humanness. The classical idea of human nature is, as it were, aristocratic: all men are human but some are more so, and that is the crucial political fact. The modern idea of human nature is democratic: no difference among us can reach so far as to alter our naturally equal humanness, and that is the crucial fact.46

  For the ancients, the art of politics was “strenuous and demanding.” And, America’s Founders thought, it was utopian, aiming at the unattainable. The Founders’ political science would strive “to achieve, not the delusive heights at which the ancients aimed, but solid human decencies.” They would rely on the low but solid and—this was, after all, political science—predictable constants of “human passions and interests.”47 As Diamond shrewdly saw, from this flinty realism about human nature and possibilities came a powerful new argument for democracy. The Founders’ realism did more to deflate the pretensions of the few than to disparage the capacities of the many. The new science of politics, by taking its bearing not from the radical inequality among people but from capacities concerning which people are most equal, denies the political relevance of human inequalities. No inequality confers an entitlement to elevated political status.

  Again, Diamond: “In the old view, the ‘common good’ was understood to include certain virtues or excellences which could be nurtured and made preeminent only by the rule of those who peculiarly and unequally possessed those excellences. Now the common good came to mean the protection of what all had in common […] an equal interest in securing their inalienable rights.” In the process of putting the ancients in their place, the Founders also made the case against a characteristic of contemporary progressivism, what Diamond called “sanguine egalitarianism”: “[The Founders] did not expect that the mass of mankind could ever rise to such levels of mind and character as would warrant the untrammeled rule of the majority. They did not believe that such a transformation of human nature could be effected by any means, not by education, leisure, greater affluence, the experience of political participation, the benevolent influence of collective social arrangements, or any of the strategies upon which egalitarianism is obliged to pin its hopes.”48

  Woodrow Wilson would explicitly argue that although the separation of powers had once been required to restrain overbearing factions, American society in its temperate maturity had reached such a point of consensus about social progress that the power of majorities was no longer frightening. Particularly when guided by the strong leadership of an enlightened president, factions would no longer pose a menace and so should be untrammeled. The Founders neither saw nor anticipated any such conditions. For them, inequality in social outcomes was inevitable and by no means inherently deplorable. The voluntary interactions of individuals in what we now call the private sector, and what in the Founders’ era was called society, aka almost all of life, would naturally produce inequalities. Individua
ls who are naturally unequal in endowments, desires, and exertions would, in a context of political liberty, experience different social results. “In the Founders’ understanding,” Diamond wrote, “whoever says equality of liberty thereby says inequality of outcomes; whoever says equality of outcomes thereby says inequality of liberty, because only the unequal handicapping of the superior will prevent their capacities from manifesting themselves.”49

  The Founders were not indifferent to virtue, but they were not going to wager the nation’s future on an ample supply of it in government officials. Rather, they would implement what Madison called “auxiliary precautions.”50 The Founders thought that America should reap the benefits of virtue not by granting it political entitlement but rather by allowing it scope to manifest itself in the spontaneous order of a lightly governed society. Jefferson’s anticipation of, and celebration of, a “natural aristocracy” expressed his confidence that when privileges conferred by custom or buttressed by law are eliminated, natural excellence will well up and should prevail.51

  More than anyone else’s among history’s most creative political thinkers, Madison’s life exemplified the unity of theory and practice, with each of those influencing the other. If philosophy is impractical, meaning not useful as a guide to political action, it is a sterile exercise. Madison’s political philosophy has been singularly applicable, informing the republic’s formation, and its understanding of itself. To the distressingly limited extent that it informs American politics today, it is as a disposition or inclination—less a political agenda than a braiding of prudential wariness with a foundation in the doctrine of natural rights. Although Jefferson called Madison “the greatest man in the world,” all that many Americans know of Madison is that his wife was a pistol.52 But he, more than any other Founder, clearly understood and unsparingly articulated the nation’s premises and their institutional implications. If we really believed the pen is mightier than, or even more dignified than, the sword, the nation’s capital would be named not for the soldier who wielded the revolutionary sword, but for the thinker who was ablest with a pen. It would be Madison, D.C.