Congress and the Constitution's Tradition of Liberty

James Burnham was a literary modernist who after an experience with Trotskyite Marxism gained renown for The Managerial Revolution (1941), a study of executive centralization. Alert to the threat of totalitarian rule, Burnham joined intellectual forces with defenders of liberty in the renewal of conservatism after World War II.  His Congress and the American Tradition, written in 1959, provided a probing analysis of long range trends in American government and politics that invites reflection on the right ordering of liberty and authority under the rule of law.

Burnham’s libertarian watch words were diffusion, limitation, and distrust of power. Not ironically, his analysis starts with paradoxes that need to be resolved in order for government to exist. No single criterion of authority presents itself as the obvious ground of legitimacy in government. In order to have good government, moreover, sufficient strength and sufficient concern for justice must be combined, a requirement that defies strict rationality.

America’s founders learned from experience that no ideal government exists. Because they were reasonable men they admitted the limits of reason. They were not ideologues bent on forcing reality into a “monolithic system of deductively chained ideas.” Burnham observes that the existence of government is a miracle, which “like other miracles, occurs in time.” “In and through time, the paradox is resolved, reason merges with what is beyond or outside reason.” The problem of government is solved by “social experience acting through time—that is, by tradition.” (25)

Burnham understood that the Constitution is something to conjure with that transcends its positivist-juridical form. The founders’ faith in tradition reconciled them to an ambiguous and contradictory document, “unfinished in its definition and assignment of rights, duties and power,” which as lawyers they would never have accepted as a valid contract. Drawing on the wisdom of the past “as shaped into institutions and principles,” the framers devised “an orienting directive which would itself become an essential, even critical part, of the living tradition.” The governmental structure, “whether good or not as conceived rational system,” becomes, is made, good and even the best through time and history.” (27) Burnham declared, “In the American tradition, by one of those magical acts of historical creation . . . ‘the Constitution’ itself, given meaning not only by its own words but by the whole organic course of traditional practice and belief, becomes the objective standard and thus the doctrinal bulwark of liberty.” (308)

Burnham’s teaching—in the words of Washington’s Farewell address—“that experience is the surest standard by which to test the existing constitution of a country”—is instructive today when the country is divided over the constitutionality of important legislation expanding federal authority. Although Burnham was not a Lockean natural rights reasoner, his historical sensibility is informed with principles of liberty, justice, and political right.

Burnham raised the innocent yet critical question, “How long does an institution or mode of conduct have to last before it becomes ‘traditional’?” For example, in partisan politics as well as law schools the question persists, was the New Deal constitutional? Is it constitutional now? And what is the constitutional standing of private property rights and entrepreneurial liberty? These are traditional problems, but apparently they have not been settled according to the canon of adjudication by tradition. Burnham said there was no neutral scientific or mathematical way to answer these questions. They required “sensibility, tact, character and insight as well as knowledge and rational method.” (32)  Scarcely the kind of inquiry to be expected in contemporary political or academic debate!

Reasonable dialogue may be rendered more improbable today by ideological polarization beyond that of the New Deal and Cold War eras. In the American tradition political parties were not based on doctrinal and cultural distinctions. That changed in the twentieth century, according to the analysis of conservative and liberal “syndromes” that forms a key structural concept in Burnham’s book [1] The conservative syndrome includes belief in a non-rational or providential factor in government; distrust of abstract political ideology; belief that human nature is partially corrupt and limited; respect for traditions; diffusion of sovereignty; rejection of plebiscitary (mass) democracy in favor of representative government and intermediary institutions to mediate the popular will; and autonomy of separated branches of the central government to prevent encroachment by any one branch.

The liberal syndrome comprises belief in rational science as the solution to all problems of government; faith in the unlimited potential of human nature; demand for ultra-egalitarian social democratic policy; distrust of tradition as a reason for favoring an institution or mode of conduct; acceptance of concentration of power for beneficent purposes in the hands of selected social groups or organizations; approval of  “democratist” plebiscitary (leader-and-masses) electoral system; and belief that state sovereignty and separation of powers are outmoded impediments to sound solutions for modern social problems.

Burnham’s syndrome typology appears more as an archetypal-social science rather than an empirical-historical construct. Democratist dictatorship sprang forth from the French Revolution as an “obsessive wish” to rid society of its non-democratic blemishes and “annul the influence of every other political formula or principle.” (293) The American republic born of the colonial experience resisted egalitarian corruption of liberty. In the nineteenth century the general condition of society did not favor the active development of democratist equality. Burnham said Andrew Jackson, Theodore Roosevelt, Woodrow Wilson, and Franklin D. Roosevelt were “the first to call attention to the democratic—and democratist—potential of the presidential office.” (323) In due course and with conscious intentionality, the constitutional executive was reconstructed as “the plebiscitary leader, who embodies the true general will” and represents “the whole of the people” against the special interests. (325)

Burnham vigorously objected to democratist executive caesarism, not at all confident that it could be resisted. Congress was the critical institution. In the nineteenth century it was the key “intermediary institution” between the executive and the nation, capable of challenging executive decrees. (307) The “fall of Congress” came in the New Deal era, when lawmakers were reduced to the status of “mere junior partners.” Thereafter the question was whether Congress would survive. Burnham said this was tantamount to asking “can constitutional government, can liberty, survive in the United States?” (338)

Acknowledging Congress’s mixed libertarian record, Burnham approached the problem with equableness and a modicum of optimism. He advised Congress to concentrate on deciding major policy issues rather than criticism of details. Lawmakers must control “the chief officials of the colossal managerial-bureaucratic state” by giving “an unambiguous main policy directive” with clearly defined limits, then insisting on strict accountability for satisfactory performance. (350)

Would that it were so easy! Since Burnham wrote, however, a kind of reinvigoration of Congressional government has occurred despite ever threatening bureaucratic hegemony. A degree of corrective equilibrium has been recovered through the eminently constitutional form of government gridlock, much lamented by the elite political class. In times of ideological polarization and electoral volatility, gridlock is encouraged by the separation of powers, resulting in control of the executive and legislative branches by different political parties. Ironically, in the first half of the twentieth century the progressive agenda aimed at establishment of a “responsible two-party system,” enabling clear philosophical distinctions to guide rational policy making and administration. The issue was moot in the New Deal era of liberal ascendancy, but in recent decades the rise of free market, individual rights, and middle class values conservatism has enabled the Republican party to control one of the political branches of government.

Burnham believed the connection between “the survival of Congress and liberty is not abstract and formal but historical and specific.” (338) To his posthumous relief, Congress has more than survived, as John Samples’s commentary shows. To a significant extent, under some circumstances, Congress continues to be, as Burnham observed, “the prime intermediary institution, the chief political organ of the people as distinguished from the masses, the one body to which the citizenry can appeal for redress not merely for individual acts . . . but from large-scale despotic innovations, trends, and principles.” (338)

Burnham’s reflection on the American tradition offers a constructive perspective on the renewal of limited republican government. The essence of the American system of government was diffusion and limitation of power. The legal doctrine accompanying the operational triumph of divided and diffused powers was confused or mixed. The founders took for granted a pre-existing standard of law and justice. The Declaration of Independence invoked the laws of nature and of nature’s God. The Constitution, however, makes no overt appeal to any standard beyond itself. “In the American tradition,” Burnham writes, “by one of those magical acts of historical creation . . . , ‘the Constitution’ itself, given meaning not only by its own words but by the whole organic course of traditional practice and belief, becomes the objective standard and thus the doctrinal bulwark of liberty.” (308)

That the Constitution is doctrinally promiscuous is evidence of the framers’ philosophical moderation. At the same time, in a pluralistic and competitive society, political coordination that is reasonably required by the practical reason of the constitutional order could produce the immoderate result of concentration or preponderance of a single political force or principle. Constitutional rule of reason in the form of distributed authority and government equilibrium, in which there was “an honorable place” for democratic republicanism, might be superseded or overthrown by the ideological fervor of “scientific” rationalism in the form of “democratism.” (309)

Burnham’s analysis of the “syndromes” of American politics was soundly conceived. With good reason, he set his mind against and exposed the failures and perversities of progressive-liberal reformism. Burnham’s illuminating account of the American tradition affords fresh perspective on the uncertain future of twenty-first century progressive democratism.

The progressive “line of march” has lasted long enough to warrant traditional recognition, at least in a nominal and superficial sense. That this has not happened is owing in part to the unwillingness of the liberal mentality to concede the choice-worthiness of the existing order. The belief persists that everyday reality is not morally neutral; that social justice demands equality of result; that ever-increasing government spending and intervention in society will lift historically oppressed groups into the light of fairness, dignity, and equal respect. There is always an unfulfilled ideal to be realized; enough is never sufficient, and besides, someone else will always pay for it.

It is not an idle question to consider how the legitimization of egalitarian democratism in the American tradition could conceivably come about. The argument for the “living constitution” from the New Deal era has become a rhetorical cliché. The articulation of originalist jurisprudence in rebuttal of judicial activist policy making has made its mark in constitutional law and practice, to the extent of grudging recognition among liberal legal scholars.  Congress’s survival “in the trenches,” as it were, in conflicts with the executive branch, has been successful enough to elicit an argument for an “unbound executive” capable of transcending the neglect and irresponsibility of elected lawmakers beholden to corporate elites.[2]

Is it doubtful that the century-long democratist project can be assimilated in the tradition of American government as a “magical act of historical creation that takes its place in the “organic course of traditional practice and belief.” In Burnham’s construction the Constitution is informed by prudential intelligence and practical reason, and directed toward liberty, justice, and individual natural rights as morally inscribed goods transcending positivist stipulations of perpetual progress.

Burnham recognized the necessity of an eternal standard for the rule of law. The Constitution as text and “organic course of traditional practice and belief” presupposes the existence of “an autonomous standard” by which the conduct of the sovereign can be critically judged. (302)  More egregiously than its progressive forbears, postmodern liberalism conflates scientific rationalism with egalitarian fantasy, in a futile attempt to eradicate inequality as an elemental feature of the human condition. The not unintended consequence is the destruction of individual and political liberty. This is a truth continually disclosed in the practice, preservation, and renewal of constitutions of liberty.

[1] The word “syndrome” refers to signs and symptoms of disease, psychological disorder, or other abnormal or undesirable condition. Burnham’s use of it is indicative of the progressive or nontraditional nature of American government in the twentieth century.

[2] Eric A. Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011).