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An Anti-Foundational Constitutional Conservativism

Moderate Conservativism defends moderation, limits, and practical wisdom as the antidote to today’s sorry tableau of polarization and extremism. John Kekes, currently Research Professor of Philosophy at Union College, has written numerous books over the years. Central to his thought is rejection of any “monist” conception of the good that privileges a single principle. No universalizable, context-free, and undeniably correct moral judgments can be made that would necessarily compel the assent of all fair-minded people. He lists his intellectual touchstones as Aristotle, Montaigne, Hume, Burke, Madison, and Oakeshott. Relentlessly anti-foundationalist and anti-utopian, the book’s first part describes and advocates an approach to political judgment for people who see politics as constituted by ineliminable conflict and incommensurable goods.

And without going into a lot of detail about it, Moderate Conservatism repeatedly affirms American constitutionalism. It has stood the test of time by adequately securing what Kekes calls the primary political goods: the rule of law, justice, legal and political equality, liberty, and private property (each analyzed in the book’s second part). Everyday people support the Constitution because it sustains a decent if imperfect regime, one that orders and limits conflicting imperatives so that citizens are secure and have the space and freedom to pursue lives of their choosing. From this perspective, the error of extremists is to overestimate what politics is capable of achieving. They anathematize those who disagree with them as irredeemable sinners or dangerous enemies, while simultaneously undermining the constitutional system’s capacity to facilitate accommodation and compromise from the roiling of American pluralism. Kekes wants us to see that if we better grasp the limits of politics as a human activity, we will better appreciate the enduring achievement of the Constitution and give it our continued support.

Kekes sees the monist insistence on a single universal good as the delusion of cloistered philosophers who abstract themselves from the messiness of reality, or of self-satisfied zealots who tend toward political extremism. Eschewing those errors, we should accept that there is a plurality of goods, that frequently they conflict, and that people reasonably disagree about how best to live. This is the natural setting of politics in a free society. We do not need to reach an agreement on philosophical first principles in order to make the judgments of better and worse by which we govern ourselves tolerably well. To recall a noted formulation of this idea: if we cannot gauge the height of peaks shrouded in the clouds, we can see that a mountain is higher than a molehill. “We should descend from the height of theoretical speculations about the nature of the cosmos,” and if things here on earth turn out poorly, Kekes writes, “we should not infer from factual contingencies that the cosmos is out to get us.” 

This is a perfectly defensible philosophical position with a respectable pedigree, which Kekes knows well and deploys adroitly. Yet America did have a founding, philosophical and political, in the doctrine of natural rights and the principles of government by consent and constitutional limitation it generated. Kekes lauds the Constitution, and quotes and praises the Declaration of Independence, but does not connect his overall project to their substance. They serve more as totems, or as referents for shared social norms, but not as the philosophical core of the regime and the basis of its political science as students of American political thought likely would understand these things. The traditional, philosophically foundationalist understanding of the constitutional order has its own claims about what human beings are, and why and how politics must be accordingly limited, but Kekes does address them as such. Similarly, nowhere does the book consider how constitutional structures and processes might foster the moderate politics the founders strove to inaugurate. These limitations mark the boundary of its ambition.

If we abandon the quest for agreement at the level of philosophical principle, we can still affirm the conventional values of our political community. Kekes calls these the “common decencies” and our “shared modes of evaluation.” In the first category are the “simple unsophisticated moral sentiments and actions of most of those who live together in American society.” They rest on acknowledgment of our shared humanity and allow us to tolerate one another day-to-day despite our individual differences. Think of what in older times would have been described as civility, honesty, politeness, and neighborliness. The second category is made up of the common evaluative principles and language of our society that we use to discuss and debate political things, the “condition of there being a society in which civilized human lives could be lived.” Without such basic agreement, “there would be no society in which political or any other evaluations could be disputed.”

Amid the glue of convention that holds society together, everyday life—and politics even more so—will throw at us “perennial problems” and “adverse contingencies.” The core theme of Kekes’s chapters on the primary political goods (listed above) is that none of them is absolute and they will inevitably come into conflict with one another as circumstances change. Indeed, we can be conflicted about them within ourselves, as can our leaders. And of course, we disagree with others. Accidents and other surprises descend on us; resources are scarce; knowledge is limited and imperfect. If anyone is fully satisfied it does not last, and all of us can never be fully satisfied at once. Given that this state of affairs is normal in any healthy political community irrespective of the shared conventions that ground it, and that universal agreement on philosophical first principles is unavailable, Kekes urges us not to ask of politics the concord or once-and-for-all resolution it can never produce.

Our Constitution has stood the test of time and is capable of accommodating conflict and change, and can continue to do so, if only we do not demand more of politics than any constitution can manage.

Instead, what we can do is “cope,” a word that recurs frequently in the book, as do “balance” and “reason.” Confronting the whirl of political conflict, contingency, and moral compromise, “If all goes well we can cope with them one by one as they occur and endlessly recur, but we can never eliminate them because they are part of our condition.” What, then, is good political judgment? “The conflicting claims of these political goods need to be weighed, balanced, and then priority is given to one of the conflicting ones in some contexts and conditions and to another in other contexts and conditions.” In this light, the book’s cover image is well chosen: Vermeer’s “Woman Holding a Balance” with the scales in equipoise—a condition we know is fleeting. Even more fundamentally, Kekes counsels us to accept that because goods inevitably conflict and circumstances always shift, politics cannot be the realm of moral or ethical purity. The Pauline principle (do no evil that good may come of it) is ruled out. People who cannot accept his reality should not be in politics because they mistake what it is. Their refusal to weigh, to balance, and to compromise in deference to the purity of their own beliefs tends to make them outliers whom other political actors must marginalize for the good of the whole. Here one is put in mind of an observation on this point from Bernard Crick’s In Defense of Politics: “A man who can’t ride two bloody horses at once has no right to a job in the bloody circus.” This way of thinking does not rule out political participation by the religious or others with what Kekes calls “unconditional non-political commitments,” but it does hold that politics is not the arena in which those commitments can be realized in any unmitigated way.

What makes Kekes’s project conservative, even a kind of constitutional conservatism? To be sure, it is secular, anti-foundationalist, and nonteleological. These qualities may lead some readers to dismiss its claim on the label, although we could point to acknowledged conservatives of similar views. The answer is that Kekes implores us not to delude our politics with abstraction or idealism, but instead to hold fast to the tried and true, however we might understand or dispute its foundations. Hume is apt here, as instanced by Kekes: “To tamper, therefore, in this affair, or try experiments merely upon the credit of supposed argument and philosophy, can never be part of a wise magistrate, who will bear a reverence to what carries the marks of age; and though he may attempt some improvements for the public good, yet will he adjust his innovations, as much as possible, to the ancient fabric, and preserve entire the chief pillars and supports of the constitution.”

Kekes repeatedly insists that our Constitution has stood the test of time and is capable of accommodating conflict and change, and can continue to do so, if only we do not demand more of politics than any constitution can manage. Moderate Conservatism thus expresses the cautious and realistic stand of conservatism, the toughness of mind that refuses to forsake the given and serviceable for the untried and overambitious. As Kekes writes at one point, “Moderation leads prudent people to avoid extremes and to be reluctant to endanger the life they have made for themselves.” Surely conservative politics and constitutionalism can benefit from renewed engagement with the ancient virtues of sophrosyne and phronesis, even if Kekes himself does not rely wholly on the larger philosophy they are part of.