- November 2010 – Founding Principles and Today’s Politics: The Constitution at Risk?
- Transcript by Bradley Jensen and Guy Burnett
THE CONSTITUTION AT RISK?
Founding Principles and Today’s Politics
November 17-20, 2010
A Conference Hosted by the Tocqueville Project of Brigham Young University, with Funding from The John Adams Center for the Study of Faith, Philosophy and Public Affairs and The Sutherland Institute.
Is the Constitution as understood by the Founders at risk? If so, then how so, and what caused this? And would the passing of the Founders’ Constitution represent a grave threat (as Tea Partiers or Glenn Beck would have it) or rather a welcome moment in the progressive unfolding of basic principles of freedom and equality? Can our deepest constitutional concerns be addressed through ordinary political means, or are our problems fundamentally moral and spiritual?
Conference Director: Ralph C. Hancock, BYU Professor of Political Science and President of the John Adams Center. Author of The Responsibility of Reason: Theory and Practice in a Liberal-Democratic Age.
Paul Rahe, Charles O. Lee and Louise K. Lee Chair in Western Heritage and Professor of History, Hillsdale College, Author of Soft Despotism, Democracy’s Drift. “Montesquieu and the Foundations of American Constitutionalism,”
Charles R. Kesler, Dengler-Dykema Distinguished Professor of Government, Claremont McKenna College, editor of the Federalist Papers and of the Claremont Review of Books: “Restoring Constitutionalism”
William Voegeli, Visiting scholar at Claremont McKenna College’s Henry Salvatori Center, contributing editor of the Claremont Review of Books and the author of Never Enough: America’s Limitless Welfare State: “Populism and Constitutionalism”
Peter Lawler, Dana Professor of Government at Berry College in Georgia, editor-in-chief of Perspectives on Political Science, and author of Modern and American Dignity: “Toward a Consistent Ethic of Judicial Review: Our Founding and Legislative Compromise.”
Rogers Smith, Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania, author of “Oligarchies in America? Reflections on Tocqueville’s Fears”: “The Constitutional Philosophy of Barack Obama.”
Wednesday 17 November:
2pm Charles R.Kesler: Restoring Constitutionalism
The Constitution, at Last by Charles R. Kesler
From the May 17, 2010 issue of National Review
The majority of political controversies in American politics until the 1960s were centered on basic constitutional issues. Deeply divisive disputes over the national bank, internal improvements, the expansion of slavery, secession, civil rights and desegregation were each focused on a particular interpretation of the Constitution. Bust since the 1960s, the Constitution has essentially faded out of American politics. Today when constitutional issues are raised, during the confirmation of federal judges, for instance, the Constitution appears tediously tendentious; both Republicans and Democrats are generally relieved not to have to think about that old thing for a while.
The outcry of the Tea Party movement reflects a deep-seeded popular concern over the constitutionality of Obamacare, the national debt, and the size and nature of government. The Tea Party’s devotion to a renewal of constitutional limits on government recalls the American Revolution where the people rebelled against the unwritten and tyrannical British constitution. The real impact of the Tea Party is in its role as an ideological tonic for the Republican Party, reviving arguments that have not been heard in decades.
Two key questions about this constitutional renewal must be addressed. First, what ever happened to the Constitution? Why was it eclipsed in the first place? And second, what is so good about the limits and strictures of the Constitution? What possible guidance do they provide to their renewal?
The Constitution was diminished by modern liberalism, beginning in the Progressive Era and continuing through the New Deal. Modern liberalism caused a fundamental shift in how the Constitution was viewed and understood. The result today is that the Constitution is virtually irrelevant to the political class. The New Deal, in particular, created a deep-seeded attachment to a new kind of experimental or historical rights-based government. The Founders asserted that the individual had rights endowed by Nature and Nature’s God. The government that was instituted to secure those rights could possibly threaten them; therefore, it was essential to keep government power limited. The Progressives, in contrast, believed that rights reflected society’s evolution. The more power government has, the more rights it can and will bestow upon the people. Far from limiting, checking or channeling government power, a proper constitution should liberate and enhance government power in the Progressive view.
Progressives are not alone in this view of government; conservatives have sidelined the Constitution, too. Conservatives invoked the Constitution in opposing Medicare and Medicaid in the 1960s while southern Democrats used it to inveigh against civil rights and desegregation of schools. This mixed bag of causes, and their clear defeat, made conservatives reluctant to appeal to the Constitution again. Moreover, Republicans have not only acceded to the existence of the welfare state, in some cases they’ve added to it, as with George W. Bush’s expansion of the Medicare entitlement. Conservatives have tried a host of remedies to slow the growth of government: tax cuts, tax pledges, tax limits, spending limits, term limits, “and a host of never-enacted, barely serious constitutional amendments.”
Conservatives, having tried everything else, should consider returning to the Constitution. While the Constitution is no panacea it could provide the spirit, principles, example, and invitation to limit the federal government. The Constitution is a republican document, grounded in the authority of the people, giving it the weight of moral law. As a moral law, the Constitution prohibits things because they are wrong; they are not simply wrong because they are prohibited. In order to preserve the Union, the Constitution originally contained several compromises and protections for slavery, compromises that were necessary to maintain a nation whose founding principles were anti-slavery. The Constitution is not racist, sexist, or anti-democratic. Partisans of the Left, who have routinely criticized and denounced the Constitution and the men who wrote it, have been ably and brilliantly rebutted by such scholars as Harry V. Jaffa, Hadley Arkes, and the late Robert Goldwin and Martin Diamond.
The Constitution created a government of specifically enumerated legislative powers along with some implied powers. There was disagreement about the nature and extent of those implied powers as well as the exact bounds of the executive or judiciary but enough flexibility was built into the system to enable definitions to be worked out over time. Federalism provided powerful adversaries to the federal government in the form of the state governments, who, if they rally together, can doggedly oppose federal abuses of power – as many states have united to oppose Obamacare. Elected state officials such as governors and legislatures carry great weight in particular. The state governments also have two additional constitutional powers: 1) they may ask Congress for a constitutional amendment, and 2) they have a nuclear option: they may call for a convention of states to propose such an amendment if Congress will not.
Another fundamental constitutional principle, the separation of powers, enables each branch to excel in its own sphere while checking the excesses of the others. When separation of powers worked well it fought off the centralization of administrative control, a malady better known as Big Government, which often infects bureaucrats into believing they run government better than the people. Big Government attacks both federalism and separation of powers and the limits they impose.
American liberalism has labored for over a century to remove the separation of powers from our government. The Left has had much success while not achieving a total victory. Conservatives who wish to restore constitutional government may find reestablishing separation of powers a more critical task than reinvigorating federalism. Obamacare, for example, was an immense delegation of rulemaking and regulatory legislative authority to an immense number of bureaucratic agencies. “These multiplying centers of petty tyranny will accelerate our transformation from a republic of laws to a corrupt regime of muddle and ever more arbitrary power.”
Restoration of the old Constitution will not be easy but at the very least conservatives must insist that no new centralization or increase in government should occur. Obamacare must be repealed, no new TARPs issued, and no new delegations of legislative authority should be allowed by the people of this great nation. The goal should be to constitutionalize the government we now have. Government should be prudently pared back to its original, limited functions and where that is not a possibility, we should favor more constitutionalism in every aspect of government. This is the starting point for conservative office holders and ordinary citizens alike to lead us “to a healthier, more responsible, and more constitutional political life.”
9:30-10:30: Paul Rahe: Montesquieu and the Foundations of American Constitutionalism
Hinckley Assembly Hall
The opening address for the day was given by Paul A. Rahe, who presented original research on a comparison between Montesquieu and ideas found in The Federalist. Providing a deeper insight into the political theory of the Framers, Rahe’s work examines how the Framers would have understood Montesquieu when answering the question of a republic’s size and it’s sustainability. Rahe begins with a look into the contemporary wisdom of Greece and Rome on a republic’s appropriate territorial extent. The Greeks believed that the only way to keep a republic functioning was to educate its citizens with a love of the public —not so much to imbue in them the notion, but to consistently reinforce the moral teaching of the “advantageous, the just, and the good” in order to focus the citizens on the common good. The ancient city became dependent on the single-mindedness towards the public that the citizens espoused. In order to keep this single-mindedness a reality, the Greeks refused to naturalize non-Greeks as citizens in their city-states. Rahe finds that Montesquieu recognized this strength in the Greek polities, and when Rome fell, it was due to expansion and naturalization of those with views other than the Roman common good.
When Montesquieu wrote The Spirit of Laws in 1748, he dealt with many issues, including territorial extent in a republic. While most Anti-Federalists cited Montesquieu’s reasoning that a democracy can only be sustained in a smaller extent as in the Greek example, the Federalists came to a different conclusion. Rahe’s extensive look into Montesquieu’s works finds that the other side of the argument of a small republic is that a polity must be large enough to defend itself from an outside attack.
These two opposing ideas are brought together in England’s constitutional monarchy which Montesquieu praises. The Framers understood this as they sought to preserve the form, participation, and feeling of non-nationalized republics while at the same time creating a partly national and partly federal government.
As the country began to grow, James Madison, Alexander Hamilton, and later the French philosopher Alexis de Tocqueville feared a usurpation of power into the national government through the principle of “soft despotism.” Tocqueville feared that the shrinking local participation in government coupled with the suspicion and uneasiness inherent in liberal citizens would eventually become a cry for security, transferring large grants of power to a secure national administrative state creating a soft despotism. This transfer of power becomes inimical to the Constitution and the principles of civic virtue, participation, and liberal uneasiness which kept citizens and polities democratic in both ancient and modern times.
Rahe asserts that the arguments for the republic envisioned by the Framers was not wrong; on the contrary, it proved that Montesquieu’s notions of territory and security could function together. However, Rahe asserts that in more recent times soft despotism has already crept in and corrupted the system, leaving the Constitution and its original principles of federalism and participation greatly undermined. Rahe concludes that, although slowly, this trend towards soft despotism might be reversed and original principles might be somewhat resurrected in the modern era through a renewed appeal to Montesquieu and the Framers’ principles.
10:30-12:00 Panel Discussion: Philosophical Foundations of Constitutionalism: Paul Rahe, Noel B. Reynolds (BYU), Peter McNamara, Utah State University.
Hinckley Assembly Hall
The morning panel included Paul A. Rahe, Peter McNamara, and Noel B. Reynolds presenting papers and discussing the function and purpose of the Constitution and its role in society. As noted previously, Dr. Rahe’s presentation focused on Montesquieu and The Federalist when examining the size of the republic and soft despotism.
Peter McNamara’s presentation focused on Alexander Hamilton’s views on both the theory and practice of constitutionalism as well as the necessary role of religion and morality in the American regime. McNamara asserts that the best way to understand Hamilton’s views on the American Constitution and the Enlightenment is to look at his reactions to the French Revolution contrasted with Thomas Jefferson’s views. In a letter to the Marquis de Lafayette, Hamilton notes that theory and practice had become intertwined for deleterious effects in the French Revolution, and that the reliance on reason over any consideration of religious morality had produced a regime of the worst kind. At the beginning of the French Revolution, the regime had tolerated religion and religious belief, but as it progressed, there became a widespread atheistic assault on religion itself. Hamilton saw this betrayal of religion in the French Revolution as one of the worst outcomes imaginable, and foresaw the problems which would occur in the new regime.
McNamara finds that Hamilton believed revealed religion, and the morality that accompanies it, is absolutely essential to a well-functioning and democratic republic. In drafts of Washington’s Farewell Address, Hamilton reminded America that it must be mindful of the necessity of religion as an integral part of political life in its society. Progress, he noted, was not guaranteed by History, nor was it possible to sever the Enlightenment from the religious past that gave birth to it. To ignore revealed religion in American society, or to institute reason over religion, would be to lose the vestiges of democracy and Western Civilization. Indeed, Hamilton noted that the Enlightenment itself was not to overthrow those vestiges, but to improve upon them.
Noel B. Reynolds’ presentation contrasted both Rahe’s and McNamara’s presentations by challenging the moral assumptions of American constitutionalism. By looking back into political and legal history, Reynolds finds that constitutions were not created to be the bases of society, but instead to provide institutional safeguards for the proper rule of law. In observing this, Reynolds asserts that the American Constitution did not set up a moral basis for American society, but rather created a set of institutional checks and balances designed to protect the rule of law from unjust or undemocratic influences. Laws, not morals, are the basis of society, and these laws change and are shaped by the shifting perceptions of truth in a society.
Reynolds concludes that the assumption of any society forming or maintaining a constitution centers on the cooperation and respect of the people for the rule of law. If this is not “written in their hearts” no constitution will ever produce a successful or sustainable regime. Thus, in order to understand the proper role and function of the Constitution in America today, one must understand the institutional system set up to protect the rule of law, not the purported moral underpinnings of the document.
The panel concluded with a discussion regarding the importance of morality and the Constitution, as well as morality in society at large. Rahe contested that Reynolds’ point about the rule of law was not sufficient to understand the Constitution. He asserted that laws were not enough, as one had to gauge where they fell compared to true justice. The same held for a judgment of justice in a society. Only under a limited government that established what justice was could this examination be carried out. McNamara agreed with Rahe insofar as the argument about the injustice of laws was on full display in recent times by the acts and stir raised by the Tea Party Movement. The movement itself professes to support a return to fundamental constitutional principles of limited government and fiscal responsibility. This raises the question of the definition of morals, but leaves room for more research into the underpinnings of the Constitution and the perceived crisis by those who claim to be part of the Tea Party Movement. Further research should yield a better understanding into the nature of the movement and it’s perception of the Constitution.
William Voegeli: Populism & Constitutionalism
The Meaning of the Tea Party by William Voegeli
From the Spring 2010 Issue of the Claremont Review of Books
There is a virtual consensus that the Tea Party movement began when Rick Santelli, a CNBC financial correspondent, denounced a proposed $75 billion homeowner bailout from the floor of the Chicago Board of Trade in late February 2009. “How many of you people want to pay for your neighbor’s mortgage who has an extra bathroom and can’t pay their bills?” he raved. Santelli in that instant voiced the rank unfairness that millions of Americans were feeling. Their government had decided to take money from those who lived within their means to pay the bills of those who didn’t. And plenty of Americans weren’t going to put up with that.
From Santelli’s rant to a rapidly growing movement, the Tea Party has become a full-blown political insurgency almost overnight. But beyond its origin, everything else about the Tea Party remains an open question. It may be growing in strength or this wave could have already crested. It may be the saving grace of the Republican Party or seal its doom. The only clear answer we have is that time will tell. “An unforeseen burst of political engagement, still in the process of sorting itself out as it enters its second year, is not going to reveal its ultimate character and goals so readily.”
While most observers may casually conclude that the Tea Party is simply a response to the aggressive agenda of Barack Obama, there are strong indicators that the movement is reacting to far more than just the new Administration. Tea Partiers have routinely disparaged the highly educated elites who now occupy most of the significant positions in government, business, higher education, and the media. The pretensions of these over-achieving meritocrats and their fawning, excessive praise of the president has been ridiculed and derided by the Tea Party, “not only because many people . . . find such extravagant praise of a still unproven politician absurd and insufferable, but because of the increasing evidence that Obama himself believes” his own hype. By replacing cynicism with hope, Obama wanted to enact a truly transformational agenda that would permanently shift our political process toward fairer, more just outcomes. Cynicism could only be dispelled through openness, which lead Obama to promise that Congressional debates over health care reform would be televised rather than be hidden behind closed doors and that no family making less that $250,000 a year would have their taxes increased. But neither of these promises could be kept. Negotiations with a TV audience cease to be negotiations and turn into abject posturing. And a scant 15 months after promising no taxes for those making less than $250,000, Obama reneged. One wonders if Obama was not aware that these promises fundamentally could not be kept when he made them. “Did he really not understand . . . that all the expensive new things he promised government would do could not possibly be reconciled to his promises to exempt 97% of the population from any new tax increases? Or was he agnostic all along about his solemn promises, winking in the mirror and chuckling before going out to intone them to the crowds of supporters who stood, cheered, and wept as they beheld, at last, a politician personifying the change they could believe in?”
“A candidate determined to tell the voters what they need to hear rather than what they want to hear would, by contrast, acknowledge — explicitly, repeatedly, and forcefully — the fiscal reality that will dominate American politics until the last baby boomer’s ashes are scattered at Woodstock: our government has promised its people entitlement benefits that exceed, by several GDP percentage points, the tax revenues it has prepared those people to surrender. Realistically, the only way to square our spending promises with our taxing promises is to break one or the other, or to bend them both, arriving at some politically feasible and economically sustainable mixture of spending cuts and tax increases. . . .”
“The problem is that cleaning up the nation’s balance sheet is a lamentably pedestrian mission for a world-historical figure. Worse still, getting out from under the debts created by the New Deal and Great Society programs works against Obama’s efforts to launch his own ambitious, third-wave Epoch of Hope. The president’s ungainly response to this dilemma has been to concentrate the nation’s mind on figuring out how to pay for all the unaffordable promises that were made decades ago . . . right after one more batch of unaffordable promises is added to the existing stack of IOUs. In his inaugural address Obama promised a “new era of responsibility,” and then made clear in his first months in office that it would commence only after another long, indulgent season of irresponsibility.”
Obama’s unsuccessful first year in office shows the sharp limits of presidential rhetoric. The contradictions of Obama’s claim that the health insurance system was utterly broken while in the next breath assuring Americans they could keep the coverage they had were not lost on the public. This and many other questionable statements explain the rapid rise of the Tea Party and its unsparing condemnation of the president’s health care program. “The Tea Party scorn for the president’s promises that all his transformative plans won’t hurt a bit is about Obama, but also about something bigger. The voters are particularly unreceptive to presidential promises that sound too good to be true, because they have lived to regret listening to other such promises.” Highly educated experts, who expect that the befuddled masses will defer to their more refined judgments regarding public policy, are the ones who have routinely made such promises, often dismissing the common sense of the people as misinformed.
The new American class structure is reflected in the background of Obama himself. The president is an alumnus “of Columbia and Harvard Law School, married to a graduate of Princeton and Harvard Law. His mother had a doctorate in anthropology, his father was a Harvard-trained economist.” While Obama spent several years in community organizing, he chose to take a position at a prestigious Chicago law firm rather than at a working-class firm like Kent or John Marshall, choosing to ensconce himself in the upper echelon of the urban elite while distancing himself from the vast majority of ordinary Americans. Such distance is reflected in Obama’s now famous statement in San Francisco about bitter Americans clinging to guns and religion. “The Tea Party movement’s grievance against the Eternal Valedictorians cannot be reduced to the lingering grudges of those who took a remedial class here and there against those who enrolled in Advanced Placement Everything. . . . A leadership class that actually improved ordinary Americans’ security and opportunities would be forgiven condescension worse than Obama’s. It’s when the people running the country are both disrespectful and ineffectual that folks get angry.” Some have suggested that an angry Tea Party movement may lead to a wholesale replacement of the meritocratic elite, much like the Episcopacy in the early 20th century. But unlike the Episcopacy, the Eternal Valedictorians have no qualms or second thoughts about their claim to rule. “Before setting on the convulsive course of evicting the Achievatrons from their positions of power, the Tea Party movement would be well-advised to continue reflecting on whether America’s problem is this establishment or an establishment. An alternative reading of what the Tea Party movement does and should want is not a better establishment but a less autonomous establishment, subject to the checks and balances of a re-engaged citizenry and a re-invigorated Constitution that constrains its discretion.” That’s why, according to Larrey Anderson, “whatever their other differences, [the Tea Party’s] “divergent groups agree that the federal government has, over the last several decades, stepped further and further outside the bounds of the Constitution.””
The Tea Party has then a clear affinity with the principles of the Claremont Institute, an organization founded in the late 1970s “to restore the principles of the American Founding to their rightful, preeminent authority in our national life. This orientation means the Tea Party movement has the potential to be a vessel for a conservatism committed to conserving political blessings that are unqualifiedly American.” The connection to the founding principles of the nation suggests that the Tea Party has an intellectually viable agenda and principled guidance to achieve its ends. The trouble comes in formulating an effective and appealing electoral message that will resonate with the broader public. “Conservatives have . . . to explain how shrewdly delimited government can succeed where sloppy, undisciplined government has failed.” Tea Partiers may be unable to reconcile their populist fire with a new set of policy wonks, creating a deep tension within the coalition ranks of the GOP. “What’s at stake in the war conservatives have declared on Obamacare is not only 18% of our economy, but 100% of our polity. If the anger over what Democrats enacted, and the way they passed it, is replaced by acquiescence, America will have taken a big step toward having not only policies but political processes that are indistinguishable from Europe’s.” If the American people were to quietly and meekly accept the stern expertise of ruling experts, they would have effectively ceased to rule. As Frederick Douglass said in 1857, “Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them.”
10:00 Panel: Religion, Family & Constitutional Order. Lawler, Hancock, Lynn Wardle (JR Clark Law School)
Religion, Family and the Constitutional Order
Panel Participants: Ralph Hancock, Lynn Wardle, and Peter Lawler
Dr. Hancock: Introductory Remarks
This session raises the important question of how the Constitution is related to the character of society. In particular, in what light or background, do citizens properly interpret the words of the Constitution? There appears to be three competing approaches. First, there is the natural rights doctrine as articulated in the Declaration of Independence. Natural rights are given to each individual as an endowment from the Creator. It is the purpose of government to secure these rights for each citizen and enable them to have their full enjoyment. Second, there is the Progressive view, which sees justice in ever-expanding individual rights. This is in opposition to the natural rights doctrine, which emphasizes limited government for limited ends. In contrast, the ever-expanding rights of Progressivism necessitate the constant growth of government in size and authority to more ably provide and guarantee the expanding realm of individual rights. Lastly, there is the natural law view, which understands justice as grounded in some thicker or fuller understanding of human progress. There is the approach that emphasizes institutions, practices and procedures in the Constitution rather than the key principles found therein. Hamilton’s argument that the stability and ultimate success of the American constitutional order rests on the religious beliefs of the people raises the important question of the role of elites, political and otherwise, in the forging and maintenance of a sound and just government. William Voegli’s argument that the transformation of the old political elite into a “valedictocracy” suggests that the problem of an established cadre of ruling elites is unavoidable. There is therefore some weight to the critique of anti-intellectualism in the Tea Party, however some dominant form of reason, whether it be insight, honor, achievement, or a particular understanding of one kind or another, will rule, and the people who are smart and driven will always have influence. It is in the light of these questions that brings us to our panel.
Dr. Wardle: Virtue, Marriage, and the Substructure of the Constitution
The Founding Fathers fundamentally believed in both public and private virtue. Arguments and exhortations to virtue and its absolute necessity for the establishment of a sound and just government in the new American nation are found throughout the papers and writings of the founders, both the Federalists and Anti-Federalists. The assumption and efficacy of private, individual morality and moreover the aspiration to inspire, inculcate, and shape public virtues among the citizenry comprise the moral substructure of the Constitution. If we were to alter or change the substructure that the Constitutions rests on, if we were to substitute a competing or alternate notion of morality antithetical to that of the founding generation, we would fundamentally alter the superstructure of our government. While the institutions and various components may survive, the basic principles would have been altered. Virtue, both public and private, is the indispensable pre-condition of American government, in its operation and it maintenance. Much of virtue-related legislation was delegated to the states as the primary arena of its inculcation. In particular, family law was completely left in the hands of the states and their legislatures and courts to decide. The federal government had no jurisdiction in those matters. From the New Deal, however, family law has increasingly become a thorny judicial issue for the federal courts.
Dr. Hancock: On Freedom and Science in Modern Society
Modern societies are shaped fundamentally by two authoritative ideas: science and freedom. These ideas provide most general assumptions about the world and thereby exert an enormous influence over our public and private lives. The notion of science now defines what we believe is rational. It was Descartes who first proposed a reasoning “method” wholly free of contaminating traditional or so-called revealed truths, thus introducing scientific objectivity into Western civilization. The obvious advantage of this method was the promise of “absolutely verifiable and replicable results,” and while that has held generally true for mathematics and the hard sciences, it has proven distinctly limited in questions of morality and politics. “For in the practical realm the question of purpose is clearly primary, and Descartes’ method is based on the deliberate and systematic suppression of the question of purpose, or of the good.” Ultimately, science, and the technology it creates, may enable us to achieve our desires but they cannot tell us what we should desire in the first place.
The notion of science is bound to that of freedom. Science insists we bow to facts yet freedom allows us to pursue our individual values. In this way, science “sustains its ruling authority by a breath-taking and perpetual sleight-of-hand: it somehow gets away with claiming at once to be sovereign and to be neutral, that is, incompetent to judge of the most important practical questions, questions of limits and purposes.” Scientific rationality in modern society is therefore completely dominant but abdicates “any responsibility for ends.” Science, therefore, tends to erode all particular goods known through experience, institutions, and traditions. When scientific rigor is thus applied to traditional or moral goods, it tends to dismiss or eliminate them as fundamentally irrational.
“Some practical goods are more resistant to this solvent compound of science and freedom than others.” Hobbes dismissed the question of the highest good in favor of debasing politics to rest on the greatest evil, namely fear of violent death. (Never mind the question of whether there are real causes and goods worth sacrificing one’s life for). Liberal thinkers from Locke to Mill to Rawls have deemed security, property, self-expression, and other values as “rational.” This extended spectrum of rational goods hasn’t really deviated from the basic Hobbesian argument and the “absolutist founding intention of liberalism: only goods that haven nothing to do with the elevation or fulfillment of the “soul” (whether the soul is considered as natural, as per Aristotle, or as divine, as per the Bible, or worst of all, as both, as in Aquinas, as well, let me suggest, as in the Restored Gospel) must be deemed “rational.”” It is clear that the bond between science and freedom, unfettered by any distinctly limiting or guiding notion of an authoritative, higher good, “continues to drive the liberalization of liberal society.”
The strange marriage of science and freedom results in the cult of Progress which undercuts all traditional, higher, or practical goods for their lack of scientific rigor, for instance traditional marriage. “A ‘scientific’ understanding of reason dissolves all moral obstacles articulated in traditional and religious language that might stand in the path of a more and more absolute “freedom.”” Traditional goods valued and supported by great majorities with a long history of providing practical and beneficial goods find themselves under near constant attack and bombardment. Exceptionally few people clearly see that the extreme extension of liberalism is based on “the hollowest of foundations, that is, at bottom, on a simple, willful denial of any goods not reducible to the safety or comfort of the body – or, in the contemporary version, not reducible, to the unlimited expression of sexual desires.”
Dr. Lawler: The Gender-Blind Society
To what extent are we guided by the Founders’ view of women or the family? Our Constitution is gender-blind — it speaks only of persons — but, on the other hand, marriage and family law are left to the states governments to decide and define. The states initially excluded women from political and business life. John Adams notably mocked the notion of women ruling the nation. Calling it the tyranny of the petticoat, Adams noted that if women ruled in public, they would effectively control everything. The Founders’ understanding of virtue essentially dealt with women unjustly. This changed with the enactment of the 14th Amendment which read a gender-blind spirit into state law. Marriage shifts from being a contract between man and woman to merely an agreement between two individuals.
Key to this transformation of our understanding of marriage in an individualistic direction is John Locke, perhaps the most influential thinker among the Founders. His influence is seen in the shifting of social welfare programs away from families and towards individuals. In the 1950s, the welfare state was oriented towards unions and family men. High working wages were negotiated that would enable women to stay in the home with their children. Republicans initially were the most supportive of the proposed Equal Rights Amendment (ERA) while Democrats opposed it. Businessmen wanted women to be a source of labor just like men. Only in the late 1960s, when the two great parties began a deep ideological realignment, did the two sides switch, with liberals joining the Democrats and the religious conservatives flocking to the GOP.
The cultural transformations of the 1960s illustrate the underlying demographic issues at stake in the liberalization of gender roles. Nowhere is this better seen than in Mad Men, the AMC television series following the lives of advertising executives in 1960s Madison Avenue. It’s essentially a TV show showing men doing bad things, things completely opposed by our contemporary society. These men from the 1960s drink alcohol without concern, smoke like chimneys, and never exercise. Clearly, these people weren’t thinking straight — they had no view to their personal health and security. They hadn’t gotten over gender roles! The distinct gender role of the day was that men got married and had children. People fifty years ago had more children and lived less well than we do today. The demographic reproduction rates with young people outnumbering the elderly were sustainable for a welfare state. Now, however, young people are having less children or no children at all. Children are superfluous in a technology-driven society. It is increasingly harder for a woman to be a stay-at-home mom and forgo the added income and benefits of being fully employed in the marketplace. Tocqueville observed that democracy is not good for women as it requires them to radically care for themselves. Thus a deeply individualistic principle is present in the democratic experiment from the very beginning. Things are better for women than ever and yet they are worse than ever for women, too.
Essentially, the only way to make the welfare state financially sustainable is to enact a two-step plan 1) encourage middle-aged people to start smoking and 2) stick with it, bringing on earlier death and therefore one less check for the government to cut. It’s either that or young people need to start having children this very week. These observations are made in light of a the clear fact that if we continue to keep living longer while having less children, the welfare state as we know is completely unsustainable. If we were to remove all religiously observant citizens from the country, what’s left of America would look a lot like France demographically. (Please note that we may be able to save the welfare state. I’m not actually pro-death).
The great economist Friedrich Hayek, long before the Berlin Wall fell, stated that when socialism collapses, the Europeans will reproduce again. This prediction turned out not to be true. When Communism fell and the Soviet Union and its satellites collapsed, the Europeans continued to embrace radically individualistic behavior. Such behavior can not fully be attributed to big government removing the incentive to have children by providing a welfare state. However, the critique of the meritocracy, which now dominant Western governments, is right to note that elite values are more opposed to traditional family structures than those of citizens with more religious faith and less education. The Tea Party is therefore justified to oppose the intellectual non-reproducing paternalism of big government. Yet there remains the interesting fact that elites in big government and elites in big business are essentially products of the same system. Are these elites caused by the nature of capitalism to some extent, and therefore, are they essentially unavoidable?
12:00 Lawler: “Toward a Consistent Ethic of Judicial Review”
Peter A. Lawler spoke on judicial restraint and the problems of the Supreme Court’s evolving interpretation of the Constitution. While other modern Court scholars have advocated a return to the original intent of the Constitution, few, if any, have argued for a remembrance of virtue in interpretation as part of originalism.
This is what distinctly sets Lawler’s argument apart — it advocates originalism when interpreting the Constitution, but also includes the importance of virtue espoused by the Founders and traditional religious and moral standards.
The modern Supreme Court has engaged in a high amount of judicial activism for conservative as well as liberal ideas. Lawler points out that conservatives, who typically argue against the Court’s judicial activism, are as much to blame when it comes to an unrestrained Court as liberals. Lawler finds that the Court’s modern judicial activism has centered on a new libertarian understanding of individualism. Emphasizing a Lockean interpretation of the 14th Amendment’s use of the word “liberty,” the modern Court has moved away from letting the other branches of government decide political issues, and has instead embraced the notion of individual rights as the most salient interpretation of any clause in the Constitution. Shifting notions on issues such as families, affirmative action, same-sex marriage, and abortion have all become subjected to the interpretation of the Court’s individual liberties doctrine, and have been part of a growing and inconsistent rise in judicial activism.
In this way, Lawler contends that the Anti-Federalist Brutus was correct in his assumption that the vague and nebulous words and phrases in the Constitution would become problematic and the Court would interpret them counter to the popular culture of America.
Instead of embracing the Court’s Lockean understanding of individual liberty (which Lawler notes that Locke himself was not convinced would make an individual truly happy), Americans should call for a return to more moral virtue in the laws. The separation of powers created in both Federalist Nos. 10 and 51 create a system which has the Court more restrained, even in the face of a new extreme understanding of individual liberty. If the Constitution is to survive, Lawler concluded, a new rise of populism, which rebuts the elitist notion of an activist Court, must become active and vociferous in their denunciation of judicial policymaking.
1:00 Panel: Constitutional Interpretation. Lawler, Wardle, Richard Davis (BYU Political Science)
The afternoon panel included Peter A. Lawler, Lynn D. Wardle, and Richard Davis discussing Constitutionalism and the Supreme Court. As previously noted, Peter Lawler’s lecture on the nature of judicial activism and restraint addressed the Court’s activist stance being tied to a specific interpretation of individual liberty. After Lawler’s lecture, both Wardle and Davis offered their research on the role of the Constitution and the Court.
Lynn D. Wardle largely agreed with Lawler’s proposition that an activist Court is indeed a dangerous one. However, instead of emphasizing a Lockean interpretation of individual rights, Wardle examined the words of the Framers in the Constitutional Convention debates of 1787, focusing specifically on the dual ideas of a Council of Revision and the “Justiciary of Aragon” to understand the need for more restraint. Wardle argues that the Framers’ belief in a restrained Court was reflected in their continual rejection of the Council of Revision, which was to have overseer powers to protect the Constitution. Although the Council was repeatedly proposed and upheld by both James Madison and James Wilson, those at the convention feared that such council, if created, would begin to make policy and act as both a judiciary and legislature.
Sifting further through the Convention, Wardle finds that a seemingly obscure reference to the “Justiciary of Aragon” by John Dickinson encapsulated the fears of what many in the Convention knew to be judicial activism.
When judicial tribunals became more activist in their role as interpreters, they often became expositors of law as the medieval example of Aragon had shown. As the lesson from the Council of Revision in the Constitutional Convention demonstrated, the Framers were roundly against the idea of an activist Court. Davis asserts that instead of trying to determine the different modern interpretations and roles of the Court, justices should focus on the original understanding that activism itself was abhorrent to the Framers.
As both Lawler and Wardle contended, Richard Davis also thought that an activist Court is not optimal for the constitutional order, but disagreed with the presumption that the Constitution should be interpreted using only an originalist viewpoint. Originalism presupposes an understanding of the Framers’ intentions, but it is rife with problems in today’s Court. First, the Framers did not all agree on their own interpretation of the Constitution, and for modern justices to attempt to understand their collective viewpoints on matters is difficult, if at all possible. Second, while the Framers were brilliant in their own time, they ceased to comment on things unknown or unimagined to them. In modern American society, many things have drastically changed, including society itself and the interpretation of words and phrases, which makes the Framers silent on such matters. To attempt to update them in a modern context and a disregard precedent and societal leanings is dangerous.
Davis asserts that specific Constitutional principles should be followed, such as separation of powers and checks and balances, but as the world has changed, so has the understanding of the Constitution. Davis advocates a living Constitution approach which would draw a compromise between the text of the document as well as considering precedent and other modern interpretations of law and justice over a murky idea of original interpretation. While not always justified in it’s activism, the Court is a good place to make decisions in harmony with modern understandings of the Constitution.
The session ended with a question about the importance of the academic endeavor to the modern understanding of the Court. As unelected elites, justices can become insulated from popular and academic opinion on a variety of issues surrounding the Courts. The panel agreed that work done in academia is one of the ways justices might come to better and more fully understand their role and the role of the Court in interpretation and policymaking.