Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
The most important battle for the American soul is being fought in history. The intellectual rise of Neo-Progressivism over the past three decades depended heavily on historians who helped craft a compelling story of America. This story had to expose and chronicle the dark history of exploitation of the privileged and powerful against a litany of victimized “others” while simultaneously laying claim to a worthy past that is unfolding toward a noble future. The psychological benefits of this story are many and powerful, though they rest on conceptual ground riven with subterranean stresses and fissures.
At its most powerful, inhabiting this story of America allows one to enjoy moral outrage against our forefathers (less so our mothers) while seeing the entire sweep of American history as tending (progressing) toward justice. Such a combination of moral righteousness and patriotism is intoxicating but unstable. One sees it in the way Progressive politicians draw upon authorities from our past (Washington, Lincoln, FDR) in the process of advocating a “fundamental transformation” of the nation.
It is, in fact, a “tending toward” history—the key is found in the direction that is encoded in a story of woe. The primary moral edification comes from those heroes of the past who changed things, who moved the nation “forward,” making history a guidebook for change rather than a storehouse of wisdom. We value our past because it shows us how much we have overcome and because, to some degree, it provides methods for the current phase of liberation. And so the goal of historical story-telling issues from the moral ideal of the beatific nation that serves as the model for “fundamental transformation.” Neo-Progressives have a city on a hill too. The secularized (or, perhaps immanentized) Puritanism of today’s Left is just another species of American crusading—of which there are several.
The political burden of this narrative is to foster patriotism while asserting some fundamental American sin and the means of doing this requires that the sin be, in some measure, a “fall” from the essential and true nature of the nation. However flawed, then, the prophets of old (Jefferson, Lincoln, FDR, LBJ, and sometimes Washington), pointed us to the promised land. That land, the land of equality, continues to elude us because the entrenched powers use existing inequalities to perpetuate their privilege while seducing the many with claims to an ersatz equality and inspiring fear in the gullible that their precarious cultural power (of, say, being a middle class white person in America) is threatened by progressive agents of change. In this conception, Progressive ideas only fail politically when a majority of voters have been deceived and operate with false consciousness.
To a large degree, then, political power goes to the side that tells the most compelling history—the story that explains America to Americans, the story that shows them how to honor the past (patriotism) in their political action of today. The history of Neo-Progressives must, above all else, provide the primary justification for activism while supplying active citizens with a clear story of incomplete liberation.
Alexander Tsesis’ history of the Declaration of Independence, For Liberty and Equality: The Life and Times of the Declaration of Independence serves this agenda by claiming the romantic effusion from the second paragraph of the famous document as “the American ideal.” Tsesis wants to remind Progressives of the powerful evocation of human equality that serves as the normative heart of a document, declaring to the world the nature, ideals, and purpose of an independent America. In his introduction, the author reveals his version of “history as tending toward,” of remembering for the purpose of making changes, when he asserts that the “nation’s greatest shortcoming has been its failure to fulfill the manifesto’s pledge of equal liberty.” For him, the America worth loving is found in this manifesto—in this declaration of equality that points to the city on the hill not yet completed.
This is a kind of essentialism, and one grounded on a normative claim. But, as we will see, Tsesis wants to have his moral authority without a moral source. This, I take it, is the great problem with Neo-Progressivism as an enduring American ideal, but it is also part of its current appeal.
Before we examine the question of moral authority directly, we need to understand the goal or purpose of this history. For contemporary Progressives Tsesis wants this story to remind them of the political and moral power of the Declaration’s universal claims about equality and how the story of progressive change in America is tethered to the moral authority of the Declaration itself—a sort of sacred political text. Since the Civil Rights era, the focus of attention has turned to the Constitution (equal protection, due process, etc) as the means of securing the blessings of equality (liberty understood in the moral context of equality). Tsesis thinks this short-sighted and wants to reclaim for Progressivism the authority of the Declaration as the moral keynote that gives coherence to progressive jurisprudence.
To the degree that he succeeds in elevating the moral authority of the universal equality statement in the Declaration, the more he supports a narrative that lays claim to the “essence” of the American experiment while requiring of patriots an ongoing activism—claiming a past that fosters a better future. (I should note that this is not a book on the Declaration properly, but a book about one paragraph, and even more precisely, one universal claim found therein.) By doing this he can counter the claims of those who find the essence of American political soul in the US Constitution. Understood in light of Tsesis’ story, America is about universal equality and all specific political, constitutional, and legal actions must be read in light of this moral universalism. Constitutional restraints on government are, at best, provisional and perhaps appropriate for certain eras, but they do not represent any moral or philosophical restraint on government power—the means of actualizing the equality ideal will differ with circumstance and by focusing in the universal moral claims of the Declaration we gain flexibility (which is to say power) to change, to invent, to create, and, in the long run, to re-imagine what the moral claim means in each new era.
Tsesis’s defense of the Declaration is BOTH morally universal and instrumental. On the one hand the power of his story rests on this moral essentialism and its genetic connection to America, but on the other hand he wants this to be a universalism that emerges (which is to say changes its object) with new generations, each discovering some hidden form of inequality, some new moral imperative that was largely invisible to the prophets. It is a fixed moral ideal and yet a moving target. Infusing open-ended change with moral passion is a demagogue’s dream.
Among the several alternative understandings of the meaning and role of the Declaration that the author explores—many Tsesis raises in order to remind people that the Devil can speak with the words of the Declaration—he never examines one of the most coherent alternatives to his own.
In 1950 Leo Strauss began his Natural Right and History with a question: Does America still believe in the self-evident truths of the Declaration. For a good many people influenced by Strauss, this remains THE question facing America. Modernity, as understood by Strauss, is a project to liberate humans from moral restraints, to put reason in service of desire. America, he said in his Thoughts On Machiavelli, was “the only country in the world which was founded in explicit opposition to Machiavellian (i.e., modern) principles.” Rather, as expressed in the Declaration of Independence, America was founded in classical terms—that is according to moral principles that are embedded in the teleological view of humans. Strauss stressed the relationship between the universal moral claims in the Declaration and the explicit appeal to divine authority, both of which give voice to a “natural” view of humans—that is human nature has a good, moral, complete ideal against which we can judge our society and others.
Whether one agrees with Strauss about the importance of the Declaration (I am impressed but un-persuaded), his Natural Right argument is coherent and places a universal moral ideal in the context of a knowable moral authority. Strauss’s argument in Natural Right and History is that if one severs the moral claim from the moral authority one gets tyranny. Note how he stresses the point: “contemporary tyranny has its roots in Machiavelli’s thought, in the Machiavellian principle that the good end justifies every means.”
This is precisely what Tsesis does. “The natural rights theory of the framers is no longer popular, but the human rights aspect of the document have never become obsolete.” He wants moralism without any transcendental authority; he wants to declare universal rights without being bound to any teleological conception of human nature or purpose. The Declaration becomes a resource for any purpose we have—a tool for each generation. In this way, a statement about individual liberty and about the threat of government tyranny could become the justification for altering the scope and purpose of the government. The universal claim of equality trumps everything else in the document. One example will suffice.
When discussing the Declaration in the context of the Great Depression, Tsesis casually asserts that “the problems of poverty—which degraded individuals’ lives, liberties, and abilities to pursue happiness—required establishment of governmental duties that surpassed what the revolutionaries could have envisioned in their agrarian world.” Setting aside the substantial body of historical scholarship that challenges the premise about the need of government activism to end the depression, Tsesis celebrates the ability to so distort all reasonable interpretations of the Declaration’s meaning (taking the document in its complete form and it its original context) as to make any appeal to fidelity to original meanings useless. One might make a philosophical and prudential appeal for the New Deal in any number of ways, but to celebrate such feats of conscious misinterpretation is to render the document such a source of meanings as to make it meaningless.
Isolating one paragraph from a historically complicated document, dismissing the rich scholarship that helps reveal the range of purposes and contemporary meanings of the Declaration, and abstracting one universal claim, Tsesis’s history is really an invitation for people to construct the story that they want and that their cause needs. Tossing aside the enumerated abuses of the King, ignoring the range of purposes for both the document and the wording, thinking little about the context, the Declaration loses its historical meaning and is turned into a political tool simply. I would wish for a much more historically nuanced story—less focused on mining the authority of the document than in understanding it—but if we want to talk about the moral claims of this cherished document we ought to be keenly aware that appropriating a universalist moral claim absent a compelling authority (divine or natural) is an invitation to exercise the will to power.
The historical battle—the fight over which story to tell about ourselves—is the most important political struggle of our time. The Neo-Progressive story is finally one of equality rather than liberty, of power rather than authority, of desire rather than reason. Many responses are necessary to this story—and I, for one, believe that both the traditionalists (like myself) and the Natural Rights advocates have much work to do to provide a compelling alternative.