The federal judiciary has become dominated by what Glenn Harlan Reynolds calls Front-Row Kids—a credentialed elite with a prescribed resume.
Mankind is not easily rid of theology once it gets the bug. The nation-state tried to erase the distinction between earthly power and absolute right, but the attempt failed, with the result that the modern nation-state, its professed secularism notwithstanding, is once more coming under the tutelage of a clerisy.
Almost since its beginning the nation-state has implied self-government in matters spiritual as well as temporal. It aspired to be an integral unit within whose borders a people were fully sovereign, answerable only to God—and perhaps not even to God, for what power could gainsay the people’s interpretation of His commands? Vox populi, vox Dei at last, and the people spoke through the organs of the nation-state, above all an elected legislature.
Reuniting the two heads of the eagle—in effect, right and might—was, as Ralph Hancock reminds us, the dream of modern political philosophy as exemplified by Hobbes and Rousseau. But Rousseau was painfully aware that the emerging nation-states of the 18th century were not proceeding according to his design. They instead sought to abolish the “Two Swords” of Christendom in a way that was sure to fail—through legislatures rather than the Legislator. Old institutions of iniquity (church, family, property) might be smashed, but as long as human nature remained perverted by its long experience of those things, newly emancipated man would not truly be free. His nature, not only his form of government, had to be remade. Unreformed citizens would only use the franchise to forge new chains for themselves.
For the better part of 200 years, self-government and popular sovereignty—variously expressed through parliaments, Protestantism, and the self-organizing free market—seemed progressive. But today, in debates about such matters as same-sex marriage, progressively-minded persons insist, “You can’t put human rights to a vote.” Even persons who do not consider themselves progressive must nod in agreement. All this is a profound change from the era when it was believed that only voters could be entrusted with the most sensitive decisions concerning rights and the constitutions of our common institutions. The United States Constitution, for example, could only be ratified by popular assemblies.
This way of thinking did not entail the absurd belief that the people could not make mistakes, but it did mean that no higher authority was entrusted with power to overrule them. After all, if the people were not morally or intellectually fit to decide the fundamental questions, then who was?
Before the nation-state broke out of Christendom, and before the individual conscience shrugged off the tyranny of spiritual hierarchy, the Church was the ultimate authority on questions of abstract rights and what was right or wrong. In Christendom, as again today, nobody would have imagined that such things should be put to a vote. Popular representation might have a place in government, but parliaments, like kings, could only reach correct decisions by obeying the precepts of a higher authority.
The progress of modernity is synonymous with the decomposition of the old “higher authority.” Over the past two centuries, ever more of the people won an ever larger share of power in matters of conscience and government alike, until universal suffrage and the complete privatization of religion were achieved. But who were these now all-powerful people? They were the orphans of the ancien régime. They bore the marks of the old order even as they tried to build the new. Thus voters and consumers could remain Christians in certain residual senses even as they became steadily de-Christianized, or anti-Christianized, in other respects. Rousseau rightly saw that the transition would be incomplete and could never be completed by an untutored popular will—a confused, self-contradictory will that fell far short of the harmonious volonté générale.
In practice, all along democratic man suspected that he was not cut out for self-government. The remnants of Christianity in his conscience told him that not everything could be rightfully decided at the ballot box. The new philosophy of Rousseau whispered the same thing for different reasons. The moral externality to which ancient philosophy and medieval Christianity had awakened Western man could not be forgotten however inebriated he became on the principle of self-government, in all its cultural and economic as well as political forms.
The obvious contradiction between any objective ethic and the inherent mutability of values affirmed by elections, commerce, and do-it-yourself religion could be overlooked only at an early stage of the nation-state’s development, when the pressing question was not how to reconcile absolute truth and mass opinion but how both could resist absolute falsehood: the ancien régime of the church and state. Only once the common enemy was vanquished did the eagle’s head begin again to tear in two.
Hierarchy and theology are thus making a return, but not the old hierarchy or theology of the Christian world. The new clerisy and its creed are concerned with human rights, absolute if nebulous things that trump all expressions of popular sovereignty: the market, the ballot box, even the “marketplace of ideas.” Protection of human rights may require, for example, the stifling of free speech through laws forbidding hate talk; this is not ultimately a diminution of freedom but a magnification. By making people good, we make them free—in contrast to the old liberal understanding of popular (or consumer) sovereignty, which was that freedom allows the good to succeed. This is analogous to the distinction Sir Isaiah Berlin drew between positive and negative liberty, but the mixture of tolerance and repression that characterizes the theology of rights today is vastly more subtle than earlier, 20th-century notions of positive liberty.
A theology needs a church. The popular institutions of the nation-state will not serve; they are grounded on the quicksand of opinion. Theology needs firm foundations in institutional life even more than in pure theory. Modern but undemocratic vehicles of authority can be reasonably convenient organs for the new theology: under ordinary circumstances, judges and tenured academics need answer only to the truth, not to voters or consumers. But in the nation-state, even those offices are not altogether independent of popular sentiment. Thus the pressing need for higher institutions that can better embody the higher authority of universal rights, institutions that transcend nations and particular electorates. While these transnational structures may tolerate some degree of democracy—as Christendom of old could accommodate limited parliamentary representation for the commoner—they cannot permit voters to have the final say on the most important questions.
Professor Hancock’s essay suggests some of the tensions that the new regime confronts. “The authority of the state has never been and could never be grounded in some pure and simple and secular ‘reason,’” he writes. Aspiring post-national forms of governance suffer precisely from their lack of grounding in anything other than such “reason.” The United Nations and the European Union may command some authority within the conscience of the true believer in universal rights, but they possess little authority that anyone else recognizes. And modern man remains divided: he feels the inadequacy of self-government and affirms that some things are too important to be decided by the people, but he is not willing to surrender to a bloodless higher power. He burns to reconcile truth and opinion, to commit his faith to an authority he can willingly place over himself. This would amount to stitching together the two heads of the eagle within his own soul, at least, if not in society at large.
So democratic man seeks gurus and messiahs, stars and role models. But the bureaucrats of our aborning institutions of post-national governance do not, by dint of their training, make inspiring saviors. Quite the contrary: they are the last people on earth with whom the self-misruling man would want to drink a beer.
There is, however, another kind of transnational modernism, another church of human rights, besides that of the European Union and similar bodies. As Pierre Manent notes in Democracy Without Nations, the United States has managed the remarkable feat of being both nationalistic and universalistic, both empire and vindicator of the nation-state: “One central nation, the model and guardian of democracy, encourages all peoples … to establishe a democratic regime and cultivate democratic mores. …The American version of democratic empire is characterized by a harmonious mixture of older elements, such as the maintenance of nations and willingness to take recourse to force, with newer elements. The primary newer element is the vision of a united world in which collective differences will no longer be truly meaningful or significant.” Universal rights are what level, by privatizing and trivializing, the differences to which Manent alludes.
Within the United States, in times of crisis the president becomes the longed-for redeemer of truth and democracy alike, a figure empowered by the consent of his peers but whose judgment is so far above any other man’s that he may order on his own authority the assassination, indefinite detention, or “enhanced interrogation” of anyone, citizen or stranger, he deems dangerous. Here two of the greatest minds of the postwar American right stand confirmed as prophets. James Burnham warned in Congress and the American Tradition that the loss of self-government by legislature would lead to Caesarism, while Willmoore Kendall correctly saw that egalitarian ideology, another name for the theology of rights, portended an escalating sequence of great leaders: “an endless series of Abraham Lincolns, each persuaded that he is superior in wisdom and virtue to the Fathers, each prepared to insist that those who oppose this or that new application of the equality standard are denying the possibility of self-government…”
This exceptionally American expression of the theology of human rights, in which Rousseau’s Legislator wears the guise of Lincoln or Woodrow Wilson, has right-wing as well as left-wing clerical exponents in the academy and the appointive offices of government. For much of the 20th century the great leaders who revolutionized American life were of the center-left, but increasingly the right as well aspires to a unitary and unlimited executive, not only in the name of the nation and its security but also for the triumph of good—absolute rights and democratic mores—over evil.
Within the church of universal rights there are two branches, and the failure of the anemic European branch does not necessarily foretell the failure of the more robust American line. Nothing can be taken for granted: the democratic soul survives, wracked by self-doubt but unwilling to submit to too effete a master; vestiges of Christendom’s mindset also endure; and the new church is divided. Neither a restoration of supreme confidence in self-government nor the return of throne-and-altar politics is at all likely, but the ruins of these older edifices of Western civilization may yet block the way of attempts to sweep clear the land and build the new faith’s Jerusalem.