In the interest of starting a discussion about constitutional purpose, Sandy Levinson argues "We best honor the Framers, then, by exhibiting their own willingness to challenge the verities of their times and to cease our own often “blind veneration” for the Constitution they created. What has been long settled may not be subject to conversations about “meaning,” but it is surely past time that it be analyzed for its wisdom in a 21st century America." But, what we might ask, has been settled, and what is open for re-creation?
Editor’s Note: This is part of a Law & Liberty symposium on Yoram Hazony’s Conservatism: A Rediscovery.
In his new Conservatism: A Rediscovery, Yoram Hazony may be said to take on two tasks: one, to describe an American conservative tradition, and the other, to advocate that people newly armed with knowledge of it begin to live conservatively. This he offers as a corrective to the longstanding leftward migration of American society, including American politics.
By now, it has become clear to American and other Anglophone conservatives that although their heroes won the Cold War, Western Civilization’s existential conflict with Soviet Communism, nearly two generations ago, conservatism has since been (as the saying goes) unable to conserve much of anything. Instead, every new round of political disputation seems to move society to the left, even if the conservatives win. Conservative parties such as America’s Republican Party put up little opposition to this trend, rather, as an immigrant Thatcher admirer from England described American political parties to me during the Reagan years, “Democrats want socialism now, and Bob Dole says, ‘Let’s wait ‘til next Tuesday.’”
The root of the American iteration of the problem, Hazony thinks, is the late National Review founder/editor William F. Buckley, Jr.’s entente with Fusionist Frank Meyer. Fusionism was essentially conservatives going along with anti-Communist liberals/libertarians in order to win the Cold War. Over time, prominent conservatives like Buckley became more liberal than conservative—more concerned with economic issues than with the culture. Symptomatically, he notes, National Review has become less conservative by social and religious metrics over time, though it has reliably sounded the clarion call of new reductions in the rate of capital gains tax. This has been true even when it came to public policy openings in regard to which conservatives could have expected to have voting majorities on their side, such as the Supreme Court’s decisions on prayer in public school.
Hazony points to Engel v. Vitale, in which the Supreme Court in 1962 discovered a right not to recite an anodyne prayer, or any prayer, in public school, as symptomatic of the general trend of secularization of American society in these last several decades. He notes that the tradition of public prayer, as old as English Christianity itself, now seems like an idea from an alternate universe. He also points out that the Constitution does not actually ban it. He might have added that the Supreme Court’s decision elicited a letter of protest to President John F. Kennedy signed by 49 governors and that no public opinion poll has ever shown less than 70% of the public in favor of such a practice.
Yet from our “conservative” party, crickets—several decades of silence. GOP members of Congress do vote to continue federal funding of a left-wing radio network and a left-wing television network every year, however. Those networks consistently campaign for Democratic Party causes and trumpet the most leftward among the Democrats, to which the “conservative” party responds by saying nary a word. The GOP is not operatively conservative.
A conservative, per Hazony, “is a traditionalist, a person who works to recover, restore, and build up the traditions of his forefathers and to pass them on to future generations.” American conservatives fortunately are heirs to a deeply rooted Anglo-American conservative tradition. Hazony devotes substantial space to describing that tradition and, more importantly, distinguishing it from what has come to be the mainline anti-conservative tradition in the United States.
The English historian Eric Hobsbawm famously wrote of tradition as “invented,” and readers familiar with the English and American history Hazony describes will note several points at which his case is strained. He is to some extent in the business of inventing tradition. Still, there is not much room for argument that a conservative current in American legal culture descends from, or at least has been strongly influenced by, a long line of important English lawyers, judges, and other thinkers including Coke, Hale, Mansfield, Swift, Blackstone, and Burke; other Europeans like Smith, Hume, Ferguson, Montesquieu, and Vattel; and American figures such as Washington, Jay, John Adams, Gouverneur Morris, and Hamilton. “These men,” he says, “are conservatives in the same way that John Locke is a liberal,” and this slant is “easily recognizable in their writings.” Elements of the tradition they developed included respect for limitation on royal power and an important role for the people’s representatives in making law, both of which distinguished English practice from that of the Continental powers.
Hazony’s summary of English legal history will make clear to the novice why it is that Englishmen (and others) came to admire it so—and why Englishmen thought their inheritance worth conserving. Of particular interest in this connection is his summary of the sixteenth-century dispute between Richard Hooker, a True Hero in Hazony’s eyes, and the Puritans. To the sectaries’ insistence on accommodating English Protestantism to the Continental model, Hooker argued that peculiarities in Albion’s religious practice were fit for that kingdom. Universalism had set the Continent “aflame with conflict in all its leading nations at once,” while God had helped Englishmen “settle their resolutions on a calmer and more moderate course, so that it might not happen in England as it has in many other wide and flourishing dominions.” Hooker, Hazony notes, “provided the theoretical underpinnings for the moderate, skeptical, and tolerant nationalism that has become one pillar of Anglo-American conservatism.”
An even Greater Hero in Hazony’s account is “The Greatest Conservative: John Selden.” Along with Sir Edward Coke, he led the opposition to Stuart efforts to impose various aspects of royal absolutism on England, and he wrote extensively against Hugo Grotius’s monumental On the Law of War and Peace, the path-breaking law of nations tome asserting that rationality could replace the various European states’ legal orders. The problem with Grotius’s idea, Selden wrote, was that reliance on reason alone led to results that were “intrinsically inconsistent and dissimilar among men.” (One wonders whether Justice James Iredell read this before writing his similar appraisal of natural law reasoning in Calder v. Bull (1798).)
Selden offered as an alternative the old English legal reliance on trial-and-error. “The way to find out the Truth,” he wrote, “is by others’ mistakings.” Hazony will through the rest of his book counterpose such (conservative) “pragmatism” to various projectors’ preferred recourse to unassisted reason. Most important among the non-conservatives is John Locke, the most influential of philosophers among Americans at the time of the Revolution (and still in good odor with many soi-disant conservatives even now).
The problem with Locke, of course, is that there never was a state of nature in which reason was natural law and men had “perfect freedom” and “perfect equality” and from which men exited by freely creating civil society via a social compact. That reason is the source of all moral and political obligation, another of Locke’s claims, also rests on mere Lockean ipse dixit. Having described this general schema, Hazony notes that “there is no reason to think any of Locke’s axioms are, in fact, true.”
To Locke Hazony contrasts Edmund Burke, the paradigmatic Anglophone conservative. Burke stood for the position that English law consisted of “the traditional English constitution and common law, amended as needed for local purposes.” For Burke, it is experience, the good it has brought, that justifies his preference for English law and custom over Lockean (Rousseauean, Kantian, Marxist, Rawlsian) speculative systems. Men ought never to remake government without the greatest care and the utmost caution, as any reform’s ramifications are likely to become clear only over a long period of time. More importantly, “The science of constructing a commonwealth … is … not to be taught a priori.” Theories of universal rights, said Burke and his Parliamentary allies, would wreck England’s political and religious status quo. On this basis, he called Locke’s Second Treatise “one of the worst” of books.
Apparently in emulation of Russell Kirk’s “Conservative Principles,” Hazony at several points lists principles of the subjects he describes. The first of those in regard to English conservatism is “historical empiricism,” which of course is the polar opposite of speculative theory and which he says continues to guide conservative tradition in several Anglophone countries. Of lesser importance in this connection are “nationalism,” “religion,” “limited executive power,” and “individual freedoms.”
The following section, “American Nationalists,” can be understood as a mere elaboration of the section on “The English Conservative Tradition.” In general, Hazony wants to demonstrate that George Washington, John Adams, John Jay, Gouverneur Morris, James Wilson, and Alexander Hamilton were the progenitors of an American nationalist conservative tradition descended from the English nationalism he has described. This section is markedly tendentious, or perhaps ill-informed, in, for example, making Thomas Jefferson a purely Lockean figure, minimizing James Madison’s role in the Philadelphia Convention, and otherwise equating conservatism in the Revolution and Early Republic with the Federalist Party and the Whig Party.
Part of the motivation for these moves seems to have been a desire to draw a hard line between the (centralizing) nationalism he admires—and wants his readers to admire—and American slavery. Thus, for example, while he is at pains to reject the idea of the state of nature, insisting instead that men are born subject to their parents, he omits the most famous American elaboration of that reality: John C. Calhoun’s Disquisition on Government. In fact, he criticizes Russell Kirk for having found in The Conservative Mind that there was much to admire in the conservative tradition of the American South.
Yet, though primarily responsible for the Lockean second sentence of the Declaration of Independence, Jefferson also two years earlier wrote “A Summary View of the Rights of British America,” which made exactly the historical argument for the American colonies’ historic political rights one would have expected George Wythe’s prize pupil to lay out. As M. E. Bradford noted, the lengthiest section of the Declaration amounts to a bill of particulars against King George—that is, it is not speculative at all. Jefferson would go on to butt heads with the Federalists Hazony makes the good guys in his Manichean drama over and over again, and always on the basis of the historic rights of the states, which Jefferson (rightly) insisted the Federalists during the ratification days had pledged would be sacrosanct under the new constitution, which Governor Edmund Randolph had repeatedly assured the Virginia Ratification Convention would give the new government only the powers “expressly granted.”
Hazony seems to think the Federalist Party was by definition “conservative” in every step it took. A Burkean might see that party’s history as having borne out Burke’s warning to beware reform’s unintended consequences, as much of the Federalist explanation of the Constitution during the ratification campaign of 1787-90 did not work out once the Constitution had been put into operation. How else could one explain that prominent ratification-campaign Federalists like James Madison and Edmund Pendleton became vociferous critics of Alexander Hamilton’s performance as treasury secretary? Kirk was right that a different variant of conservatism underlay the budding Republican Party of the Early Republic.
Instead of laying out Hazony’s entire argument here, I urge readers of this essay to engage with it. Rather than describing the grim pass at which we find ourselves and counseling readers that “Il faut cultiver notre jardin,” Hazony caps off his account of a “useful past” with a list of small-gauge steps every citizen can take to begin to turn society back in a healthier direction. Likely many readers who pick up the book with their minds open will be inspired to do so.