That is not to say the judiciary has no role in constitutional interpretation, only that it is part of the ongoing conversation that comprises republican p
There is a wonderful book to be written about our current political culture—which includes a growing movement to take down monuments dedicated to America’s founders—and how it would be best served by a return to the loftiest ideals of our founding. Such a book might reexamine the theories guiding the men who wrote the Declaration of Independence and the Constitution. It would analyze the Federalist Papers written in defense of the Constitution’s delicate structure, trying to understand the specific concerns that yielded its compromises. And, crucially, the book would grapple with arguments from left, right, and center in good faith, teasing out some uncomfortable truths each camp could learn from those who bequeathed us this republic. It might conclude that we have lost our appreciation for the finer points of the Constitution, for the rule of law, for the civic virtues that make republicanism possible. With our carefully constructed institutions (and memorials) under attack from all sides, we could use such a wake-up call.
Madison’s Sorrow is not that book. Its promising title, implying veneration for the founding and a nuanced understanding of American liberalism, yields quickly to strained analysis of how Kevin C. O’Leary’s political rivals operate, and a work of political history so riddled with misrepresentations and outright errors that O’Leary’s gesture to readers like this reviewer—that his book is written in part for “conservatives… uncomfortable with the illiberal turn of the base and the elected”—falls flat.
Inasmuch as one can point to a clear argument, it is this: Republicans today have moved far to the right, beyond the “classical conservatism” of John McCain, betraying the liberalism of the founding for “a witches’ brew of antigovernment libertarianism, misogyny, and Southern racism,” all of which add up to “illiberalism.”
There are two major problems with this thesis, one for each of O’Leary’s central conceits. First, all available evidence points to Democrats moving farther to the left than Republicans have moved to the right. A study by Pew, for one, notes that “the long-term shift among Democrats stands out as particularly noteworthy… The share who are consistently liberal has quadrupled from just 5% to 23% over the past 20 years.” Meanwhile, “the ideological shift among Republicans has been more modest.”
O’Leary outs himself as completely unaware of Democrats’ leftward lurch when he asks, “How would conservatives feel if… the Democratic Party were taken over by Marxist-Leninists bent on subverting democracy and destroying capitalism?” Well, they might just vote Republican no matter how nasty the nominee, for one thing.
The second problem is slightly more complex. O’Leary contends that the American founding aimed to enshrine in law Lockean liberalism as expressed in the Declaration of Independence, but he adopts a questionable definition of “liberalism.” Readers could be forgiven for assuming that liberalism meant individual liberty, limited government, and robust property rights. Ironically for someone relentlessly deriding the right as “reactionary,” O’Leary chooses to narrow liberalism’s meaning to what it is against—European monarchy and feudalism—defining liberalism as “opposing privilege, hierarchy, inequality, and exclusion.” He dismisses Locke’s arguments “regarding individualism, natural rights, limited government, and property” as “not foundational.”
There is a kernel of truth in this negative definition because liberalism does flourish in the absence of blood-and-soil values, but it is not precise. O’Leary is talking about egalitarian democracy, whereby as many people as possible are included in collective decision-making, and impediments to majoritarianism should be resisted for subverting the will of the people. This is not the same as liberalism. Democracy and liberalism, the latter including those “not foundational” elements of Locke, often conflict. Democratically-enacted laws to fix prices, seize property, or quash freedom of the press, for instance, run afoul of liberal principles.
Without this sleight-of-hand, O’Leary would find himself navigating an obvious contradiction: The framers of our Constitution were not egalitarian democrats, and the Constitution is not a document advancing egalitarian democracy. It proposes, rather, a republican system of indirect rule that protects liberty from potentially tyrannical majorities. None other than James Madison explained that the goal of the Constitution was “to secure the public good and private rights against the danger of such a [majority] faction, and at the same time to preserve the spirit and the form of popular government.” Democracy was a value, but far from the central value of the republic. Our republican Constitution therefore features countermajoritarian institutions such as the Senate, the Electoral College, and the Supreme Court alongside the majoritarian House and state legislatures.
Our defender of true Madisonianism thus turns to attacking Constitutional republicanism. “The Constitution of 1787 is embedded with provisions that violate the norms of equality,” he writes, referencing “the infamous Connecticut Compromise” that constructed the Legislative Branch as we know it. “A serious effort at making the Constitution truly liberal would attack the problem of a U.S. Senate that represents states instead of people.” Making no effort to understand why a tyranny of large states over small states was regarded as something to be feared rather than encouraged, O’Leary argues that the most populous states should have 10 times the representation of the least populous states. He does not explain why California (population 39.5 million) having 10 senators and Wyoming (population 578,000) having one would constitute an acceptable degree of disproportionality in representation, or what such a representative body would add to a system already featuring the democratic House. It is simply justified on grounds of egalitarian democracy: “Only a constitutional reform such as this would cure the massive political inequality at the heart of our political system.” Just as the 17th Amendment, instituting direct election of Senators, does not appear to have satisfied the progressive thirst for more democracy, one suspects that this too is offered as a mere step on the road to abolishing the Senate entirely.
This remarkable about-face is just the beginning of O’Leary’s sustained betrayal of the founding. He condemns Republicans lacking respect for the “delicate checks and balances of the American constitutional system,” and worries about “the complex system of American government—carefully constructed by James Madison and the framers in 1787,” then calls the Constitution “antiquated and balky.” Most galling, he argues that the Constitution was “improved… by Andrew Jackson, the Progressives, [and] Franklin Roosevelt.” Three symbols of open antipathy for the Constitution (especially as interpreted by the Supreme Court), united by their desires to democratize political processes—even while delegating actual decisionmaking to unelected “experts”—are O’Leary’s heroes. In his celebration of greater “mass democracy,” instantiated by figures such as Jackson, O’Leary’s attempted defense of the Constitution collapses on itself. He admires not those primarily concerned with maintaining checks and balances or zealous in the protection of Americans’ liberties, but those who sought to subvert the constitutional system in order to place more power in the hands of the people—and even then, often only superficially. (The spoils and patronage system of the Jackson administration and the bureaucratization of the Executive under the Progressives and FDR are hard to reconcile with their reputations as democratizers.)
Villainous “illiberals,” meanwhile, “have qualms about democracy and express misgivings about majority rule if they lose at the ballot box.” They are distinct from “conservatives,” who do not. This would surprise 20th century arch-conservatives such as Frank Meyer and Russell Kirk, who saw reflected in the Constitution’s structure the Founders’ belief that majority rule is dangerous to the rights of minorities and should be regarded with suspicion. Indeed, according to George H. Nash, “the dominant theme” of the “massive conservative effort” immediately post-World War II, “there could be no doubt… was antimajoritarianism.”
Consistency is nowhere to be found. Given his commitment to democratic political processes, for instance, one might expect O’Leary to favor a restrained federal judiciary that defers to legislatures in most instances. Instead, it turns out, he simply has no idea what he wants from courts. Though he admires Abraham Lincoln (and Andrew Jackson), he notes that “granting the courts the power of judicial review… has helped citizens not to lose faith in the country when the other party wins an electoral battle.” The connection between a court’s ability to strike down laws and national trust in our Constitution is tenuous, as President Lincoln reminded us in criticizing the Dred Scott decision: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Careful readers will note that Lincoln is not criticizing judicial review but judicial supremacy, the view that the courts are “the final arbiter of what is constitutional and right in our system of separated powers.” That’s a quote from O’Leary, too. It goes right in the ellipse above, as the given definition for judicial review and somehow the mechanism for courts maintaining legitimacy and public faith. In one fell swoop, he mischaracterizes judicial review and Lincoln’s constitutionalism while glossing over courts’ potential counter-majoritarian difficulty.
Misunderstandings and misrepresentations abound. O’Leary ignores complex debates within the right, such as the fight against libertarian-inflected economics by senators Josh Hawley and Marco Rubio. He writes that the climate-change-denying GOP “now embraces the moniker ‘Flat Earth Cult.’” (A Google search yielded no results.) He mocks “illiberal jurists [who] make a fetish out of ‘original intent,’” though nearly all originalists focus on a text’s original public meaning and, besides, wouldn’t someone concerned about “packing the Supreme Court with ideological copies of Justice Scalia” prefer judges who feel bound by laws rather than liberated by them?
But given O’Leary’s stated goal, which is to figure out, “How did we get here?”—to illiberal reactionism—it is fitting to conclude with the conspiracy theory at the heart of O’Leary’s vitriol. He recalls the story of the populist, segregationist Democratic Governor of Alabama, George Wallace, sending a surrogate to meet with Barry Goldwater at the 1964 Republican National Convention. “Mr. Wallace has suggested that he would like to be… your vice presidential nominee,” the surrogate told the firebrand conservative. Goldwater, who would get shellacked in the general election but is often credited with spearheading the conservative political movement, “considered Wallace a racist thug, and thought the request was absurd.” He declined.
What O’Leary concludes simply boggles the mind: “In that clandestine rooftop meeting,” between Goldwater and the surrogate, “the Old South and the antigovernment New Right made contact… the ensuing electric shock jolted the world’s oldest continuous democracy in ways we are only now recognizing.” Though Goldwater repudiated Wallace, O’Leary considers their fictional alliance “the secret inner logic of the modern conservative movement, the Reagan presidency, and today’s ferociously illiberal right.”
To be sure, this is meant symbolically rather than literally. O’Leary wants to argue, with some literary-historical punch, that today’s right is both hyper-individualistic and deeply racist; conservatives want the state to help no one (except the rich) and entrench established hierarchy along the usual lines of race and gender. If liberalism is synonymous with egalitarianism and the right wing is in any way hierarchical, O’Leary can conclude that the right is illiberal. The problem with this is that Goldwater-style libertarianism is not inherently hierarchical, and Wallace, an unapologetic New Deal supporter, didn’t much care for arguments about the proper scope of government. Put them together, paper over the irreconcilability of their worldviews, and voila! A “witches’ brew” that doesn’t quite cohere but will surely please partisan readers seeking confirmation that their political enemies are motivated by animus and greed.
Some good-faith analysis of intra-right debate would go a long way. Notwithstanding the view that Republicans are coordinating a thoroughly-planned effort to mix doctrinaire libertarianism with welfare for the rich and dhimmi status for women and minorities, there are serious rifts forming on the right as movement fusionism yields its political power to a nebulous form of populist nationalism. O’Leary’s decision to reduce the right wing to a caricature of two historical figures who mix like oil and water in theory—their divergent views on democratic majoritarianism stand out in particular (something that should give O’Leary pause)—and never aligned in practice is therefore all the more unfortunate.
Rather than reckoning with the complex demographic and political changes that shifted our electoral map over the past century—including the Republican Party’s shameful embrace of former Dixiecrats—O’Leary chooses to present his theory as one of damning revelation, implicating Republicans for being, simultaneously, Wallace-style populists and anti-democratic hardliners. Given that the thrust of Madison’s Sorrow is simply a reiteration of Louis Hartz’s 1955 book The Liberal Tradition in America, though, it is hard to take seriously the notion that O’Leary has identified a meaningful change in right-wing thinking effected by the Southern Strategy.
We are left with defamatory revisionism that unintentionally sheds light on how we got here. Before O’Leary could (rightly) lionize the late John McCain as a principled conservative defiant of illiberalism, McCain was the Republican candidate for President. Among his detractors was civil rights icon and Democratic Congressman John Lewis, who accused McCain of “playing a very dangerous game that… cheapens our entire democracy” and of “sowing the seeds of hatred and division.”
Lewis then made a telling comparison. “During another period, in the not-too-distant past,” he added, “there was a governor of the state of Alabama named George Wallace….”