We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
A constitution exists only for so long as there exists a people capable of sustaining it. The formal institutions of a constitutional arrangement may still exist even after the citizen body capable of bearing it has ceased to exist. In an age of polarization and identity politics, many wonder whether the United States is still an e pluribus unum. The more pertinent question, however, is whether the Constitution designed for such a people still exists. In our previous symposium on this site, concerning the question of American national character, nothing was more powerfully reinforced than the possibility that the United States consists, at best, of several peoples rather than one people. Whether one assesses this issue from the point of the historical development of the United States or the contemporary embarrassments of public discourse, the same image emerges: the United States may not consist of “one people.”
That observation says much about the beliefs and habits of the people. It says far more about the question of national character and the characters of the citizens making up the nation. There is no suggestion that the people of the United States are not by nature capable of exhibiting the character required for national existence within the framework of self-government. It was settled at the Founding that humankind is capable of “establishing good government from reflection and choice.” However, inasmuch as the preservation of good government depends upon the demonstration of that character appropriate to the task—as George Washington, among others, articulated it—then would follow that such a citizen body does not exist where the correlative character has ceased to exist.
The evidence for the decline, if not outright disappearance, of the character appropriate to self-government—the character of forbearance and justice, fortitude and industry and, above all, personal responsibility—is on display in the dramatic growth of the culture of entitlement and victimization and the correlative character traits that go along with it. What is truly remarkable, however, is that such development did not occur by mere evolutionary processes. Rather, it was occasioned by a deliberate re-articulation, by Franklin Roosevelt, of the grounds of participation in the political community and the character required for that participation. Abandoning the standard Washington fostered, Roosevelt opened the way to a standard that substituted dependence for independence.
Washington urged a standard of decency—or forbearance. That standard inclines to justice which, besides meaning the completion of virtue, carries also the lesser but important meaning of law-abidingness. Thus, political rule seeks to inculcate in the ruled the spirit of law-abidingness. Because justice is specifically relational rather than institutional, it can never be systemic but rather only individually performative (that is, when all or most are just, the society is just). Thus, the harmony or concord sought in the community is the concord not of opinions but of dispositions to weigh the good of others in determining one’s own conduct. It is choosing to act decently.
By contrast, Franklin Roosevelt inculcated an “enlightened administration” that discounted the power and value of such manners and mores. He argued that individual expressions of character had become inefficacious in the modern era, for liberty was inefficacious apart from the establishment of the prior condition of material security. Where Washington spoke at a time of political and material insecurity (1783) and highlighted the resources of decency within the community as the condition for surmounting such challenges, Roosevelt spoke at a time of relative political strength and material strength, and highlighted the inadequacy of the people’s character to sustain the regime.
The way Roosevelt achieved this result was by redefining the meaning of freedom. In a series of addresses beginning in 1932, he developed the argument such that he could, by 1944, finally declare that
true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ . . . In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights . . . a new basis of security and prosperity.
What this means quite literally is that the exercise of freedom is not the foundation of material and political prosperity; rather, material prosperity is the foundation for the exercise of freedom. No longer, therefore, is the hardy character of persons making their way in the world by dint of hard work and determination the basis of self-government.
It follows necessarily that, when citizens develop the disposition to make their self-interest (or the interest of their particular group) the guide to conduct, they act in a way that is incompatible with an end of politics understood as forbearance and justice. In contemporary terms, fostering identify politics is contrary to the end of the political community. Unless a disposition to forbearance and justice is intrinsic to the exercise of liberty, liberty will not be productive of the human good understood in political terms. Therefore, it would also follow that a constitution constructed to foster such liberty no longer exists.