So I keep reading that America is exceptional. That’s not surprising. And that unexceptional fact is both good and bad.
1. Tocqueville finds both religious madness and an insane materialistic restlessness in America. The French have pretty much stayed with that criticism, still viewing us as Puritanical workaholics. So to be a Eurocentric American liberal today–or to be for change our liberals now believe in–is for being less Puritanical (on, to begin with, sex) and for adopting the more laidback French work ethic (withe the assistance of a more generous public safety net).
2. But Tocqueville also thinks being Puritanical is something in which we should take pride. The Puritans weren’t all that nuts. And they took popular enlightenment, civic responsibility, familial morality, the dignity of worthwhile work well done for everyone, and the equality of all human creatures with dead, unprecedented seriousness. The idealism at the core of our idea of equality has an irreducibly Christian element, as do our strengths when it comes to the family, citizenship, work, and charity. So as I’ve said before: When some French or Spanish guy calls you Puritanical, the appropriate response is: “Yes, thanks a lot, you should be more Puritanical too.” (For what happens to young Americans when they turn to today’s Europe to cast off their repressive American moralism, see Woody Allen’s repulsive VICKIE CHRISTINA BARCELONA.)
3. But the French–and also our friendly English critic Chesterton–are right to criticize the excesses of Puritanical America–prohibitionism, for example. This just criticism, whether it comes from Tocqueville or Chesterton, is more culturally Catholic than anything else. (It’s the darn prohibitionism that kept our immigrant Catholics from voting for the moralistic isolationist Bryan that so many Porchers admire.) The French rightly saw (for a while) that our Puritanical prohibitionism had morphed in the direction of bizarre and tyrannical health and safety legislation–concerning smoking, for example. They also saw that it had morphed more broadly in the direction of our humorless political correctness.
4. But Chesterton should have appreciated more than he did that Bryan’s struggle against Darrow was finally on behalf of defending our creedal belief in the equal significance of every human being against a Nietzschean form of Darwinianism. Bryan and Chesterton certainly shared the view that our Declaration’s creed was really about the equal significance of every human creature, and it depended upon a foundation for that personal significance in God and nature. So for Eurocentric liberals today our “fundamentalist” Darwin denial seems to be a peculiarly American form of redneck insanity. But even if it’s finally misguided, there’s something profoundly dignified and genuinely egalitarian about it. It should cause us to think, more broadly, about the question of whether even “the Laws of Nature” of our Declaration really account for who we are as persons.
5. So I have a lot more to say. I haven’t touched on either our Lockeanism or our progressivism (except its perverse Darwinian element) yet.
March 12th, 2010 | 1:53 pm
The “equal significance of every human being” vs. the equal inalienable rights that belong to every human being under the laws of nature. Doesn’t the latter (the Declaration) offer a more sensible (and moderate) political approach than the Christian account of who we really are as persons? Should we push the Declaration this far? Isnt Christian natural law too rigorous to impose politically? Shouldnt we celebrate the Declaration for its moderation, and not for robbing us of a fully worked out account of who we are as persons? I can still read Lawler (and Aquinas and Percy and O’Connor) in private.
March 12th, 2010 | 8:11 pm
Peter, excellent advice on the response to the “you Americans are too puritanical” charge. I have friends from Spain and France and elsewhere (including the U.S. of A) who repeatedly make this claim. I always respond with a defense of the virtues of what they call puritanism, but it always concedes too much. From now on I will will speak directly as you advise. It should make for a good conversation. In fact, I can’t wait for such conversation! Thanks.
March 12th, 2010 | 9:59 pm
Peter, do say more. But in the meantime: we should listen to the French sometimes, as they should listen to us. The assumption that we have nothing to learn from foreigners is among the worst tendencies of contemporary conservatism.
March 13th, 2010 | 11:36 am
Professor Lawler’s comment on the dignified and egalitatian nature of Darwin denial, even if it’s finally misguided, reminds me of Vladimir Soloviev’s mocking of what he called the intelligentsia’s strange syllogism: ‘Man is descended from the apes; therefore, let us love one another.’
March 14th, 2010 | 9:10 am
Man, one of these days, I do need to get around to Soloviev! And Brad, neither the NT nor the early fathers give you a “political approach” at all. You’re comparing apples and oranges.
But see Philippe Beneton’s neglected contemporary classic Equality by Default for why Christian/Biblical equality beefs up the Declaration’s equality, whereas the Declaration’s equality does little or nothing on the plane of pure principle to beef-up Christian or Biblical equality, and indeed can be twisted against it. But on the plane of practical politics, Declaration principles have been great for religious freedom and for every humanitarian(i.e., Christian-rooted) measure of alleviating human misery. And despite TJ’s wish, read straightforwardly the final (Cont. Congress-edited) version of the Declaration has aided the development of the American idea, perhaps best articulated by Tocqueville, that modern democracy needs biblical religion.
March 14th, 2010 | 12:53 pm
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March 14th, 2010 | 12:54 pm
We should certainly listen to the French more — especially at the expense of the Germans.
March 14th, 2010 | 6:24 pm
I’m for treating the French like real people, and so listening to them when they’re worth listening to. I think, as you know, that Tocqueville is mostly rightly right and certainly not to be dismissed as a foreigner who dissed our Declaration. I agree, as I’ve said before, with the French person Bruckberger that the genuine moderation of the Declaration comes from it being, as a whole, the product of compromise. It might even be said to be accidentially Thomistic, contrary to the intention of Mr. Jefferson and Mr. Franklin (who both like the wrong French way too much). I also agree with Beneton as described by Carl, Manent, and Chantal Delsol as described by me. Thanks to Brad for starting this discussion off by pointing to an important point of controversy. According to Chesterton and some might say Lincoln, the personal significance issue is indispensable for being dedicated to the proposition that all men are created equal.
March 14th, 2010 | 10:47 pm
Thanks for the Beneton reference, Carl. Fully agree with the importance of preserving the NT’s apolitical distinctiveness. This is why we should be open to the possibility that the Declaration speaks the truth about the origin of legitimate politics — even without a compromise that can work to keep Strauss’ Locke locked up in a “Locke-box”. Honored to be included, Dr. Lawler. Just wrestling with this fascinating compromise stuff, which seems to me a stunningly patriotic (and aristocratically inspired) way of saying “I’m not satisfied with the theoretical core of my patriotism”.
March 15th, 2010 | 12:35 pm
Brad, Most patriots wouldn’t think that patriotism depends on a wholly satisfactory theoretical core. That’s why, as jwc wrote on this site, that American liberals from the Founding onward have struggled with the nation and loyalty. Insofar as we’re citizens, we shouldn’t expect theoretical or theological satisfaction, but that doesn’t mean we’re free individuals who don’t owe our country loyalty and gratitude. We American citizens are also more than and less than citizens. We’re economic beings with interests and we’re creatures or beings with a personal significance that transcends “the city” and all its limitations. The political community–our territorial democracy, as Brownson says–is a true home, but not our truest home. I’m not at all clear that the origin of legitimate politic can be explained contractually, nor can the limits of politics be satisfactorily or completely explained that way.
March 15th, 2010 | 2:48 pm
Brad, since James has said we all need to listen to the good French thinkers more, here’s one that you may benefit from reading–Francois Guizot. A good foil to the (Zuckert-influenced?) Lockean strain I’m hearing in your words. If what I give you here (from class notes) tickles your palate, the place to pick up afterwards is Aurelian Craiutu’s book Liberalism under Siege, or less comprehensively, Pierre Manent’s chapter on Guizot in An Intellectual History of Liberalism.
Francois Guizot was a seminal historian and one of the most prominent statesmen of France during the Bourbon Restoration (1815-1830) and the July Monarchy (1830-1848). He was also a political thinker of first rank.
As both a politician and a political philosopher, Guizot was primarily concerned with how to “finish” the French Revolution with a consolidation of its worthy principles. He felt the French Revolution had been right in its basic principle and tendency, which he said was to introduce “moral law” into relations between citizens. However, he felt that democracy had three harmful tendencies, as shown by the experience of the French Revolution: 1) despotism of the majority, 2) lack of protection of rights, and 3) centralization of power. Moreover, the fact that haunted him and all French liberals of the time was that the Revolution had wound up producing an old-fashioned despot: Napoleon Bonaparte. To prevent a return to revolutionary chaos and despotism, Guizot favored moderate liberalism and constitutional monarchy for post-Napoleonic France. He was bitterly opposed both by those who wanted to return to traditional monarchy, and those who wanted a second French Revolution. Karl Marx, for example, despised him. The great error of his political career, from the perspective of Alexis de Tocqueville and other liberals, was that he too doggedly opposed expanding France’s highly restricted suffrage, a resistance that contributed to the Revolution of 1848 which threw him out of power and ultimately resulted in a new Napoleonic emperor.
Guizot rejected theories which granted a right of sovereignty to an individual or collective will, including the general will of the people. He developed a theory of the Sovereignty of Reason, in which “the only sovereign that is legitimate by nature is reason, truth, and justice,” but since “no-one can rightfully claim to fully possess” these, any free regime had to subject those in power to a continual questioning of their rule. Elections, freedom of press, and constitutionalism that institutes countervailing forces are necessary for this process of contestation, but none of these ought to be based upon a theory of the people’s inherent sovereignty.
Guizot held that all citizens must be treated as equals under the law, and that there are universal rights, but he denied the state-of-nature theoretical basis of both equality and rights, as taught by John Locke and echoed by our Declaration. In the beginning there were not rights-endowed individuals, but societies, since “the idea of right implies that of relation.” What is truly politically natural is the voluntary granting of power to the most politically capable, since “the superiority that is felt and accepted [by others] represents the original and legitimate link in human societies.” The universal rights proceed not from a state of nature, but from what reason, truth, and justice demand. Guizot’s brand of liberalism is thus an interesting foil to the natural rights liberalism of Locke, Jefferson, and Madison.
March 15th, 2010 | 3:46 pm
So we have Jesus and Socrates to “blame” for turning us into thoughtful, cautious patriots. But what about “the city”? Is it still needed as a necessary condition for appreciating the genuine needs of the soul? Also, if you’re not satisfied with the original voluntary agreement among free rights-bearing individuals as a basis for the limits to our limited form of government, then what’s a guy to do to stop today’s living constitutionalists? Thanks for this, Dr. Lawler Lots to think through.
March 15th, 2010 | 3:54 pm
Wow, thanks for this, Dr. Scott.
March 17th, 2010 | 8:45 am
Brad, A beginning of an answer would be that today’s “living constitutonalist” IS Lockean. See Kennedy, LAWRENCE V. TEXAS and the libertarian enthusiasm for him– for example, in the so-called originalism of Randy Barnett. (I also see Lockean M. Zuckert warming up to Kennedy’s view of “dignity.”) According to Kennedy, the word liberty in the Constitution is nothing but a weapon to be used by each generation of Americans to expand indefinitely the realm of freedom. This nominalism is Lockean–words are inventive weapons to be used against nature and for individual “autonomy.”
March 17th, 2010 | 12:25 pm
So Kennedy and the libertarians agree, But what about the conservative opponents of substantive due process? They too would argue that there is no substance behind the meaning of liberty other than what each generation, through the leg. process, decides to place upon it. Kesler once described this brand of conservative jurisprudence “slow-motion historicism”, but it’s living constitutionalism all the same. But again I’ve worked my way back to the compromise: the infusion of the christian understanding of liberty into the Decl. is the only genuine curb to Lockean autonomy, i suppose you would say. Okay, I’ll stop and think. But I’m still not so sure that we should completely dismiss locke’s recognition, in the 2nd Treatise, that there are natural limits to human liberty that prevent it from becoming “licence”
March 17th, 2010 | 12:57 pm
kennedy and the libertarians agree that it’s a const. requirement that Locke not be kept into the Locke box. The Const. requires a principled reconstruction of every feature of American life. The libertarians urge Kennedy etc. to get more consistent by applying that insight to economic life too, which seems reasonable enough giving the “foundational” premise of maxing out on autonomy. Kennedy and the libertarians keep liberty vs. license in place by saying whatever people choose to do must be consensual, while adding, following Locke, that women after all have a property in their own bodies. On substantive due process, I’ll just say for provocation that the great trinity of SBD classics are DRED SCOTT, LOCHNER, and ROE. Each was wrongly decided and had pernicious consequences. In each case, what was obliterated was the possibility of prudent compromise of conflicting principles.
March 17th, 2010 | 3:00 pm
Roger B. rightly saw that for the framers there are certain apriori limits to human choice and autonomy that do not arise from consent, as our libertarians say, but which are rooted in an understanding of “the human family”. Taney simply got the framers’ recognition of the human family wrong. He is an easy but dumb target for opp. of sub. due process because Congress had essentially already repealed the MC in 1850 and 1854 through the leg. process. And Hamilton, by the way, foresaw “a principled reconstruction of every feature of human life” not in the lockean conception of natural liberty but in the legal positivism which underlay the push for an enumerated bill of rights. In the attempt to return the insightful provocation, the antifeds, like kennedy and teh libertarians, seem to share something of Rousseau’s skepticism that lockean natural liberty is no good for the requirements of political life.
March 17th, 2010 | 4:24 pm
I think the conservative opponents of sub due process can on one hand simply rely on originalism–due process is simply what the Founding generation meant by it. Period. This is what was agreed to. Nothing in that unholy trinity Peter describes was. The contractualism of constitutionalism in that sense freezes a certain (in this case, Blackstonian) historically set idea of due process that may or may not be philosophically coherent.
So while such conservatives do not think society’s ongoing debates about the meaning of liberty ought to have any jurisprudential consequences through the due process clause, they can nonetheless appreciate that those debates matter in that they reflect American self-understanding. (And given the ongoing errant interpt of the 14th that will not be foreseeably corrected anytime soon, these arguments will have practical effects.)
That’s the other hand. But why should Kesler say such conservatives are bound to slow-motion historicism in such debates? Intriguing… but I don’t get it. I say, and imagine Peter does too, that the Lockean account of liberty is not finally a satisfying account of what liberty is, and of how political authority works. At best, as Ivan the K sometimes says here, the Lockean account emphasizes certain features of political reality that the solid-er Aristotelian/Guizotian account too much neglects. At worst, well, I assume you know the charges brought against it…
Thus, FOR ALL TIME, I say that the truth about liberty has been most closely arrived at by Aristotle and various kindred thinkers like Guizot and McWilliams. The only thing that might “change” is a more articulate version of Aristotle. Peter and I also talk up Tocqueville’s conception of liberty, which seems in line with that of the best liberals like Guizot, but which always insists that liberty cannot be fully formulated. Best understood, you see liberty at work in self-governing communities and in the confident political/intellectual activity of natural aristocrats. Know your history, know about new political factors like Christianity, the nation-state, industrial rev., etc., but the basics remain the same as they ever were.
So, America’s contractualism and our prudent and grateful reverence for it, means that Locke in his sacred he-influenced-the-founders’-conceptions box cannot be chucked. Further, pure Lockeanism taken in smaller doses on certain points, may indeed help us improve upon the Aristotelian basics of true political science, as I think Ivan has suggested. But both these propositions assume that the Straussian/Zuckertian interp of Locke is largely correct, so that he cannot be read as simply providing new terminology for Aristotelian and/or Thomistic truths, but correctly sits amid the radically modern critics (i.e., amid Machiavelli, Bacon, Descartes, and Hobbes) of ancient and Christian philosophy/political philosophy/theology.
We thus find ourselves in the paradoxical situation of knowing that we owe much to Locke, including both our constitutionalism and Lincoln’s A) strong defense of natural right against slavery which logically also applies to abortion, and B) that his philosophy is not totally true and contains harmful tendencies that are increasingly coming out in our political development.
And a big part of that “increasingly coming out” refers to what can be fairly called perversions of strictly-read Locke for the sake of going further than he did. As to how strictly he wanted to be read, however, well, consider what Lawler says above words-as-effectual and about “Barnet-ism” and certain disturbingly Kennedy-friendly aspects of “Zuckert-ism.” And while Lochner may have been bad constitutionalism, it was good Lockeanism.
Conservatives of my stripe can join the Jaffa school in denouncing the historicism of Progressive, Rawlsian, etc. perversions of Locke, the Dec, and the Constitution, and even the attempt to chuck what J. Ceaser calls political foundations altogether; against such, a united Pomocon-Claremont front exists to my mind. But speaking for myseklf, I find I must deny that there is a way to hold all the key truths about politics in a formulaic bundle like the Declaration or the Second Treatise. (Aristotle’s Politics is not fomulaic.) I cannot regard contractualism and self-ownership as the political truth, and I cannot regard legitimacy as a legitimate concept if it is to work apart from Christianity. God cares about justice being done or not done to you and I and our neighbors, but not through the language of rights, nor is that language the one he chose to speak to us about how we must treat one another. I humbly understand that rights, contractualism, and self-ownership allowed Lincoln to take a firmer stand against slavery than he otherwise would have been able to, and that they allowed many other good things besides. But all the political truths are not locatable simply by isolating the conceptions which set Americans, either in 1776 or 1865, free.
March 17th, 2010 | 8:42 pm
Dr. Scott, as i understand it, conservative opposition to liberal judicial activism has nothing whatsoever to do with the theory (or any “abstract” moral theory, for that matter), enshrined in the Declaration, which holds that there are certain inherent limits to the power of democratic majorities. Like Obama, most conservatives eschew the idea of judges appealing to abstract theories when they read the text. Slow motion historicism, as compared to the fast-fwd variety we see on display when liberals use the courts to affect social change, is simply the conservative preference for allowing the people, by way of politics, to initiate changes in the law and Constitution. The point Lincoln (and Jaffa) raise is that the failure to reflect on what it is that gives us, the people, the right to affect such changes in the first place is what invites the “maxing out on autonomy” of which Dr. Lawler speaks.
March 18th, 2010 | 8:29 am
Well it was a good Guizot-like thing for Kesler to dis popular sovereignty like that, but of course, like Guizot’s student-who-excelled him Tocqueville, Kesler I assume knows that we all have to live with trying to convince Democracy/Common Opinion to keep limiting itself and its government for the sake of liberty. That stance is not historicism, and whether that dooms us to a slow-motion trajectory into soft democratic despotism that can be loosely called slow-motion historicism is another story.
And in America, the #1 aide in getting Common Opinion to limit itself is our people’s very sane reverence for the Dec and the Const. And yeah, the Dec. and Const. do strongly suggest that limited government is better and they absolutely insist that there are inherent limits to the legitimate powers instituted and directed by democratic majorities. They do so on the basis of a perhaps incoherent combination of Locke and older ideas of justice and right, not on the basis of Rawls or the whatever latest-and-thus-greatest Democratic Theory you choose.
One ought to come to realize this whether one initially comes to these issues via the Conservative tradition, i.e. Burke and the like, or via American political thought.
But as to your last sentence, not everybody’s reflection on the initial right winds up tempering Locke, as Lincoln’s reflection did. Nor is it implausible to say that, without Locke, Lincoln’s stance was impossible, and therefore it is Locke’s more philosophic understanding that inevitably must wind up being the authoritative one; thus, via a more reflective route, we can also “max out on autonomy.”
Guizot could say: “No power here on earth can be unique or inalienable because no power is or can be invested with the sovereignty of right…the only sovereign that is legitimate by nature and in all eternity is reason, truth, and justice. …Sovereignty of right cannot be granted to any individual or collective being, because no one can rightfully claim to fully possess or represent reason, truth, and justice…Given the imperfections…of human nature.” And as mentioned above, he could deny that rights were based in a state of nature, real or posited.
Could Lincoln say that? The Founders?
March 18th, 2010 | 1:59 pm
My view of “judicial restraint” is, in part, that it’s unrealistic to look to the Courts to resolve profound national controversies–over slavery, the limits of the welfare state, race relations, abortion, same-sex marriage etc. When they try, they usually end up with with an imprudent application of a questionable principle that makes a bad situation worse. And I think anything that suggests to our judges that they can act like philosophers or even natural lawyers ends up putting them in a place way above their pay grade. So the observation that the Constitution doesn’t give judges enough guidance on abortion or how marriage should be defined to allow them to trump legislative decisions iwth judicial reiew I think is right–to that extent I’m with Scalia. That’s not to say that pro-lifers or pro-choicers are being illegitimate in their appeals to conflicting Lockean principles–both of which rightly have some claim to trump the unfettered will of the majority, of course. Those opinions are meant to shame the majority or elevate public opinion above tyranny. (So think here about MLK Jr. on using direct action to shame white moderates into to doing what’s right right now.) (Even the similar dispute between Lincoln and Douglas couldn’t realistically have been resolved by the Court.)
So it’s not true, as Jaffa claims, that Scalia is some kind of positivist or nihilist. His limited claim is that in interpreting the Constitution as a judge he can appeal to no standard higher than the actual text of the Constitution.
The Declaration really has and should serve to animate American political controversies, but it shouldn’t be the foundation of judicial review.
That doesn’t apply of course to “Lockeanism” clearly embedded in the actual text of the Constitution. For example, Harlan’s PLESSY dissent is rightly based on the observations that our Constitution is colorblind and regards man as man or individual as individual or not merely as part of some class or group. But even here, it’s troubling that that relatively uncontroversial insight has never guided any opinon of the Court on race. (It has, ironically, on sexual orientation–see ROEMER V. EVANS.)
March 19th, 2010 | 11:14 am
Insofar as our nearly natural lawyers (judges like Wilson, Chase, and Marshall) understood the Constitution as the legal embodiment of certain permanent principles of justice, I think it is safe to “criticize” them (or better still the declaration’s understanding of the laws of nature) for narrowing the scope of politics. The rivalry of human opinion about justice (M. Diamond’s helpful turn of phrase) is not for these natural lawyers what it once was for Aristotle. If they are right, then Scalia and Rehnquist are constitutional positivists: the exceptions WE take out of the political process take on their intrinsic rightness only because WE have chosen to embody them in the constitution. Okay, so Jaffa calls it nihilism. The point is, Scalia’s positivism hinders our natural awareness that the limits to politics, acknowledged and enshrined in our original constitution, have been determined for us by God and nature. In Fed. 49, Madison fears that Jefferson plan to make it easier FOR THE PEOPLE to resolve disputes between the branches will obscure veneration for the document that preserves this original recognition, whereas Jefferson trusts that engaging in repeated acts of founding will keep the natural awareness in citizens more alive. Despite the differences, the deeper agreement is there
To say it’s unrealistic to expect natural lawyers on the bench is to exaggerate the difficulty a la Iredell of our ability to know the basic political implications of the law of nature. But if Iredell was obscuring this awareness then (and im not convinced he was) then yes, the Declaration should animate American political controversies now. Can’t we all be natural lawyers, judges and citizens alike? At some basic level, i think so, while we reserve the task of adjudicating natural rights in difficult cases to the best among us. As i see it, this is not expanding indefinitely the realm of human freedom.
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