The Chief Justice is a former clerk to Rehnquist, so we should look for him to tread lightly in his predecessor’s footsteps.
Within days of Donald Trump’s inauguration, George Orwell’s 1984 shot to the top of Amazon’s bestseller list. Trump’s America is not Big Brother’s Oceania or Airstrip One. (Hillary Clinton’s America would not have been, either.) But however far Orwell’s dystopia is from becoming our reality, it’s good for Americans to reacquaint themselves with his warnings. They might do the same for Friedrich Hayek’s warnings in The Road to Serfdom.
On the other hand, there’s a sense in which, valuable as these books are, it’s too late to return to them. America has already gone down a road to serfdom, if not the one Hayek envisioned, and reached its destination. Hard totalitarianism of the kind Orwell described has not come to our shores, but a pervasive surveillance state aspiring to “Total Information Awareness” (as one Bush-era program was briefly and ignominiously called) has sprung up within our still liberal and still democratic society. The perversions of language and human character that Orwell and Hayek analyzed so acutely have emerged in new contexts in our own lives. We have adapted the techniques of totalitarianism to a troubled free society.
As Greg Weiner observes in his Liberty Forum essay, our presidential elections are felt to have such high stakes because the executive branch has concentrated within itself a level of power that is simply not consistent with freedom. But who or what would it take to roll back the accumulation of power in the executive branch? As early as 1974, conservatives such as Jeffrey Hart concluded that the only answer to a runaway federal bureaucracy was an all-powerful President, someone who would turn the strength of the executive branch to the goal of restraining the executive branch. Congress is not up to the task. Institutional checks and balances have failed. Only a personal check—the individual character or ideology of the President himself—can rein in the abuse. This, of course, is precisely what constitutional architects like James Madison did not think could be relied upon.
Our republic has moved from Madison to Machiavelli. The problem is a very old one in political theory. Machiavelli recognized that republics tend to fall into corruption, and the only remedy he could find was for a prince of some sort to step in and found the republic anew. He would do this for his own glory: when the President makes America great again, he makes himself as great as a founder, one might say, because he serves the deepest needs and desires of the people. They award the him glory for giving them, or giving them back, a constitution. The soul attracted to this great task of using power to restore the republic to firm foundations would not, of course, be likely to be meek or altogether conventionally virtuous. He or she would not be apt to respect “norms.” Quite the contrary.
And one man’s restoration is another’s subversion. If a right-wing leader restored national pride and curtailed regulatory overreach, a left-wing restorer might come along next and use the same instruments of executive power to “restore” a very different kind of republic. In the 20th century, this process began with Progressive chief executives who promised a “New Freedom,” a “New Deal,” or a “Great Society.” But once this style of politics took root, it began to be employed by Progressives’ opponents as well. Power itself only grows, and as no side can be sure of its reforms enduring, all can persuade themselves that they covet power primarily—if not exclusively—for defensive purposes. The line between restoration and revolution blurs.
The trouble is not just that the kind of personality that aspires to this power is apt to be grandiose. The political movement that brings the prince to power, as Hayek warns us, will have to be of a certain character as well. It will demand conformity. It will reduce truth to slogans that are indistinguishable from propaganda’s lies. It will call for words and deeds from its officers that go beyond ordinary morality.
Hayek writes of human types that will be familiar to anyone with long experience of politics. He could be describing any partisan who has watched too much cable television when he says, “Deficient they seem also in most of those little yet so important qualities which facilitate the intercourse between men in a free society: kindliness and a sense of humor, personal modesty, and respect for the privacy and belief in the good intentions of one’s neighbor.”
A driving sense of mission and ongoing combat calls for appropriately decisive action on the part of the lieutenants of any movement that aims at or attains office. According to Hayek:
There will be jobs to be done about the badness of which taken by themselves nobody has any doubt, but which have to be done in the service of some higher end, and which have to be executed with the same expertness and efficiency as any others. And as there will be need for actions which are bad in themselves, and which all those still influenced by traditional morals will be reluctant to perform, the readiness to do bad things becomes a path to promotion and power.
Critics of the new administration will be tempted to see in all this the image of President Trump or his adviser Steve Bannon, a man who once compared himself to Darth Vader. (Which suggests a degree of humor that cuts against the stereotype.) But step back: Hayek was discussing the dirty work of totalitarianism. Yet even a liberal democracy such as ours involves much dirty work in politics and government: drone strikes to launch, whistleblowers to jail, embarrassing rumors and secrets to circulate about one’s political opponents. Democratic officials and operatives excel at carrying out these measures just as Republicans do. It’s the nature of the game.
Hayek writes of “the worst” getting to the top because he writes of totalitarianism. But even in a liberal republic, the type of moral character required to wield power is often not the kind to be found in an ordinary good man.
To acknowledge this is to offer a gentle, realist rebuke to Hayek: Just as power is the only thing that can check power—and today, personal executive power may be the only thing that can check institutional executive power—so a certain exceptional moral character is required even of “good” leaders. That’s true of governments more decentralized than ours is today, but it’s true in spades of the centralized and executive-driven government we have now.
The apparatus of power always lends itself to the worst. Yet it may not be possible to dismantle the apparatus; if it must be employed by someone, it should be employed by the good, indeed the best. But they are precisely the individuals who are least likely to seek power or to have the aptitude for wielding it.
The checks that the Constitution cannot supply, and which may or may not come from the character of those who hold office, might be sought outside of politics. In a healthy republic, there is a moral balance—a counterweight to the moral exceptionalism of the modern executive, as well as a practical check on power itself. The counterweight rests with the public, in the form of civil society: voluntary institutions that obviate the need for government power, stand ready to act as centers of moral resistance and to inculcate a different way of looking at the world’s problems.
Yet there is a defect in the way that lovers of liberty such as Hayek conceive of “voluntary institutions”: too often they only feel the force of half of the idea. Voluntary association cannot fulfill its task if it is more “voluntary” than “associative”: it has to be both. Association, quite apart from conscious voluntary commitment, has to involve solidarity, a sense of common feeling and duty among members, something rather contrary to the spirit of individualism. Worse, the spirit of civil society has an element in common with collectivism that is not shared with the ethos of the free market.
The old voluntary associations were only semi-voluntary: ethnic communities and their institutions, for example, and above all churches. The family has never been wholly voluntary, though it is not “collectivist,” either. Class-based organizations like labor unions are perhaps inherently dyseconomical and coercive. And the largest of all meaningful associations, the nation, is in its essence not voluntary.
These institutions could be abusive and limiting to individuals, but they helped to establish widely shared and inflexible moral convictions, which imposed certain constraints upon political power. As individuals have become emancipated from traditional semi-voluntary associations—as all institutions have become more voluntaristic—moral attitudes have fragmented, and only relatively simple and ephemeral passions come to be widely shared.
This is why civil society has not been an adequate check on the growth of power even in a free country such as our own. Not only does the state often undermine civil society, but freedom itself does so. This is partly because civil society traditionally contains an element of unfreedom, and it’s partly because the psychological attractions of freedom are so different from those of “thick” association. Solidarity, loyalty, friendship, and love, as constituent elements of civil society, cannot be faked. They cannot be revived by dedication to “voluntary association” or “civil society” in the abstract.
William Butler Yeats’s poem Second Coming is a cliché these days. But if the character of executive government threatens to mean that “the worst are full of passionate intensity” and rise to the top, the corresponding character of liberal civil society involves “the best lack[ing] all conviction” and failing to stop them. The civil society we rely upon as a counterweight to power is broken or, to put it in more neutral terms, is being transformed into something that no longer holds the weight it once did. This condition has arisen not only because of the failures of our liberal society—because of too much governmental power crowding out the private realm and breeding dependency—but because of its successes: we have succeeded in freeing ourselves from the binding and character-forming loyalties of old. Does any institution today command the moral authority to check government’s abuses of power or the passions of an enraged or frightened public? Not to any great extent, or so it appears.
These points are meant to be sobering, but they are not a counsel of despair. Must the worst rise to the top? People of a certain moral kind rise to the top, and that moral kind includes the worst, but it isn’t limited to them. One question for friends of liberty to ponder is whether an aptitude for power might be compatible with a love of liberty after all—and if so, how. Is voluntary association inevitably a faltering check upon centralized power in a free society? Then lovers of liberty should do everything they can to avoid weakening association further and to discover in themselves whatever enthusiasm they might muster for the communities of feeling that matter most to the public—including the community of feeling (and law) known as the nation. To the extent that formal, constitutional restraints on power still remain, they must be defended, and whenever possible revived by legislators. These are first steps, though if liberty is to be preserved, they cannot be the last.