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Progress of a Conservative

George Will’s magnum opus The Conservative Sensibility is, among many things, a timely defense of the excellence of the American founding.  A legendary conservative commentator, Will has been the longstanding pen and face of conservatism from his perches as an award-winning columnist at the Washington Post and an analyst on ABC’s weekend television program This Week. At over 500 pages, Will’s book is an “unapologetic presentation to unbelievers, who are a majority of contemporary Americans . . . [of] why they should recur to the wisdom of the nation’s founding.” As our author asks and answers in the Introduction: “The proper question for conservatives is: What do you seek to conserve?” Answer: the American founding. But how? As Will himself wonders, “What, however, does it mean to conserve an event—or, more precisely, a congeries of events—that occurred almost 250 years ago?” 

Central to the defense of American principle is Will’s Madisonian conservatism. And defending Madison requires grappling with the 28th President of the United States, Woodrow Wilson. Wilsonian doctrine features a federal government limited by pragmatism not constitutionalism, an economy comprehensively regulated by the state, and a war-like politics that aims to make us all one thing, as Progress demands.  Wilson’s progressivism was fundamental, Will observes, in removing the “Madisonian persuasion” from its dominant position that once shaped our country as one governed by small and limited government, with a leapfrog growth economy, vibrant associational life, and a relatively fixed constitutional order. Our politics is best understood, Will intones, as a continuing debate between Madison and Wilson in the policy choices we face. And that means the “conservative sensibility” must tangle with actual situations and dilemmas we find ourselves in. This demands “statesmanship” Will notes, using a term democratic audiences struggle with, but which is necessary for an ideologically clotted age such as ours, so that we might understand “the application of general principles to untidy realities.” 

Will’s work ranges widely across natural rights, constitutional law, judicial review, economics, progressivism, culture, the welfare state, foreign policy, education, and conservatism itself. He defends markets, but notes that prosperity brings its own problems, not the least is a certain forgetting of the rigor that made your society wealthy. The welfare state and the culture and politics of dependence it breeds are discussed at length as Will gives us a short history with incredibly smart observations on what the welfare state has wrought. On education Will is solid both on how government has deformed it, and why liberal education is needed for a republic. He gives needed attention to the erosion of history and understanding of our stories in the face of robotic progressive education fads that divorce us from our American and Western Civilization tradition. 

We are in the presence of an immense achievement, a work that contains the progress of a conservative, if you will. Certain reviewers, cranky conservative types (no one that I know), have contrasted the more libertarian Will of this volume with the Tory conservatism of his 1983 book Statecraft as Soulcraft. There, Will observed that any political order and the contents of its laws will ineluctably shape not only citizens’ behavior but how they think and view themselves. He dryly observed that America had a flawed founding, one that needed certain public corrections of virtue in order to shape a political order that wouldn’t end in a dissipated individualism.  In one sense, Will anticipated Deneenism, with a high Federalist version of Deneen’s Straussian/Antifederalist argument in Why Liberalism Failed (2017).

There is, though, continuity in the two Wills worth stressing. In short, Will avoids certain errors that many libertarian thinkers tend to embrace. He never dismisses the significance and dignity of politics, as if there is some ideological technique to void it. Nor does Will argue that free markets are magical problem solvers for humanity, and while I’ll dispute his “low-voltage atheism” and certain implications he draws from it, Will understands that meaning can’t be found in a solipsistic individualism. As Will observes, “The Founders intended the Constitution to promote a way of life, and they understood that to promote a way of life is to promote a kind of person.” On economics and its dependence on sound laws and mores, “A mature capitalist economy is, inevitably, a government construct. A properly functioning market system does not spring spontaneously from society’s soil … Rather, it is a complex creation of laws and mores that guarantees, among much else, transparency…” Still, despite what I regard as the overall soundness of Will’s book, there are certain problems.

This Republic of Natural Rights

Will argues that conservatism in America means getting property rights and sound constitutional limits on government in place, in accordance with natural rights. After that, though, hang on tight and expect endless and varied economic and cultural change and dynamism. I am left wondering, though, if there is something deeper to my country than just natural rights and dynamism. Are these alone the source and summit of its existence? Will rightly means to defend human nature as something fixed not malleable, noble not base, hence we don’t need the experts ushering us into an egalitarian age, shaping human subjects as they see fit. This much is good. In making America, though, wholly the political embodiment of natural rights as told to us by certain Enlightenment philosophers or rule-utilitarians, as Will also posits, I wonder if he hasn’t missed other crucial, complicating elements of America and our founding. 

Consider the Declaration of Independence, Will’s focus is on the rights language of the second paragraph, which he claims anchors the Constitution and the American mind. Is the point of the Declaration that we must have the correct rights philosophy in order to hold to it and to vindicate America? We are certainly not short of impressive academics proffering almost geometric demonstrations of natural rights and, along the way, making the second paragraph of the Declaration of Independence a high doctrine of political philosophy. Perhaps, though, the best rendition of our Declaration’s brilliant second paragraph is that it’s a statement that politics isn’t about everything. It’s limited by man’s dignity. Because of that we can hold to its truths, which includes, most-significantly, constitutional self-government. We can affirm, as the members of the Continental Congress did, when they proclaimed, “for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.” Note the insertion twice near the end of the Declaration of a providential and personal God by the Continental Congress, adding complexity to Jefferson’s Nature’s God. The document contains multitudes. 

As did our founders. Will repeats the well-worn observation that Washington, Madison, Jefferson, Adams, and Franklin, and “The Founders” generally were not religious. Of course, they never meant to found a republic that would be hostile to religion, something many have now forgotten, or never learned in the first place. They also placed decisions about religion and morality for self-governance in the states. Mark David Hall has noted in this space that a fuller list of founders would include Roger Sherman, Charles Carroll, Oliver Ellsworth, Benjamin Huntington, Samuel Livermore, Abraham Baldwin, and Fisher Ames, who participated in drafting the 1st Amendment. In addition to George Washington and John Adams, for a robust understanding of religious liberty and church-state issues in the founding and early republic: George Mason, John Jay, John Marshall, Isaac Backus, John Dickinson, Patrick Henry, John Witherspoon, and Luther Martin must also be read. Many of these men were the praying type.

We should read the Declaration in full, observing its seemingly disparate parts and how we might think them together. Most of the document is a recitation of grievances, “Facts…submitted to a candid World” to prove that king and Parliament have violated the English constitutional rights of the colonists. In fact, the despotism of the king cannot be understood without the meaning provided by the English constitutional tradition and its common law rights and liberties. Some of our most significant constitutional premises emerge from this unwritten constitution, claimed in the middle of the Declaration as our “Constitution”. Moreover, almost every statement of grievance in the Declaration, James Stoner argues, finds redress in our Constitution and Bill of Rights. That is to say the “self-evident truths” received a body and concreteness from an actual tradition of self-governance. Thus, unlike the French Revolution, we had a revolution of restoration as much as we had a revolution of definite political change of ownership. For that, we should think together natural rights and their political content as found in this most significant portion of the Declaration.

Rights become abstractions if divorced from a certain tradition that enables the recipients of rights and duties a way of actually understanding them and making the rights the objects of their devotion. The appeal to equal rights makes possible both the separation from Great Britain, but also the constitutional form that will reincorporate much of the rights and procedures they have known as Englishmen. Stripped of this certain context, a revolution and government of rights could quickly get out of hand, turning into a nominalism that finds its completion in tyranny as the moral meaning of law is evacuated of content. Some of us wonder, amidst our own age of endless rights-talk, if that is not our present situation. I kept thinking in a book on natural rights this fact might be more discussed by Will.  We have become the abstraction, spirits without bodies, bodies without spirits, who seek meanings in egalitarian ideologies, improvised histories, immutable characteristics, determined—until they were changeable—genders, even new, surgically reconstructed bodies. From the transgendered Left to the integralist Right, evidence abounds that we don’t know where we’ve come from as Americans. We have lost the thread of how that history, an accumulation of the best of the western tradition, gives us sound reasons and limits to our freedom and meaning to who we are as human persons.

Is the answer to our woes the proper doctrine of natural rights and what it means for our Constitution, and crucially for judicial review? Will thinks the answer is an, almost, unqualified yes. We might wonder in light of the author’s dismissal of a divine ground for rights where they come from? 

Could philosophic materialism and evolutionary nature contain rights? Will’s endorsement of rule-utilitarianism as a basis for articulating natural rights entails that given the consistencies of human nature, if you want human flourishing in a political order, then you endorse the protection of certain rights as evidence builds over time as to what those rights and protections should be. But rule-utilitarianism requires a rule that is then adhered to quite rigorously, with a broader view of utility than what Jeremy Bentham endorsed.

 Where does the rule come from, and on what basis does a society decide what rights flow from it? Human nature is Will’s answer. I am left underwhelmed by Will’s attempt to derive natural rights from nature alone via rule-utilitarianism. Human nature, what it is, and what it requires, is difficult to pin down.  I think there is a human nature, that it is relentlessly relational, not autonomous, and of differentiated dimensions that find fulfillment in religion, family, social and community associations, politics, and work. I struggle to understand our freedom, dignity, anxiety, and how we experience completion of our personhood by love and sacrifice, apart from creation by a Providential God. True, I can’t give a rationalistic explanation of this account, but, as Walker Percy observed, our capacities for love and courage and for hatred and suicide, qualities not manifested amongst the animal kingdom, indicate that we are the in-between-being and not entirely at home here. However, there is nothing within a purely secular, naturalist basis that entails the equal and intrinsic worth of human beings to whom inalienable rights attach.

The Antipolitical Constitution

On a more prosaic level, the Lockean formula that Will thoroughly endorses when he states “The Constitution is John Locke’s political philosophy translated into institutional architecture.” comes up short, limited by its autonomous conception of the person and its artificial view of politics engaged in merely for the protection of property rights and safety. Such autonomy tends to decrease real political obligations, making it look like a fool’s game for suckers. Not to worry, though, the federal judiciary will supply the necessary rigor in the defense of the natural rights constitution. 

Will’s “The Judicial Supervision of Democracy” chapter comes on the heels of two well-argued chapters on progressivism’s malformation of the constitutional order. Much of the reclamation of our Constitution must be done by federal judges who are “the epicenter of constitutional government,” or in another formulation the “institutional buttress for limited government.” But that raises the question of why the Constitution permits Congress to defund the federal judiciary or fundamentally limit its jurisdiction, among other things. Who’s your constitutional daddy? 

The better question is how do we the people choose to deliberate about governing ourselves with a written constitution? Call it the Willmoore Kendall question. Certain republican muscles have atrophied, courtesy of progressivism, but an active federal judiciary protecting natural rights in the 9th Amendment, and in the Privileges or Immunities Clause of the 14th Amendment, probably can’t provide what we most need. 

Will finds evidence for a natural rights jurisprudence in the little-noted transmittal letter sent with the proposed Constitution from the Constitutional Convention to the Congress on September 17, 1787, which held, “It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.” Will reasons that “Drawing that line is the fundamental and unending task of the judicial branch.” I draw, though, the exact opposite constitutional lesson from the transmittal letter. The document notes that we “give up” a portion of natural liberties in order to “preserve the rest.” But this exchange was made in the social compact or the Constitution. The legitimate manner to know the rights given up and retained is to read the Constitution’s terms not enlist the judiciary to define a nearly limitless list of fundamental rights that cannot be relinquished. The constitutional answer is that enumerated powers, rights, and restrictions on federal power is the best mechanism for protecting liberty.

Will equates an increase in liberty with a stronger federal judiciary engaging in something like strict scrutiny of every challenged federal law. But this is to come very close, if not entirely to remove judicial review from its place within the separation of powers, or what Greg Weiner terms the “Political Constitution”, instead we get the judicially dominated “Antipolitical Constitution.”  We probably won’t get more liberty, but we will get more judicial power, which is really just the muscle of our elite class being flexed on the rubes in flyover country. I note in passing that a chapter calling for judicial energy, I almost said activism, in the protection of rights, has no mention of Dred Scott v. Sandford (1857), an activist ruling, if there ever was one, that tilted us toward civil war; Roe v. Wade (1973), a case that poisoned our politics; or Obergefell vs. Hodges (2015), where then Solicitor General Verrilli in oral arguments threatened the tax-exempt status of religious colleges, and the case’s identity-based holding produced the reasonable belief in the minds of orthodox Christians that their dissenting understanding of sexuality may earn the wrath of activist bureaucrats from coast to coast, a political fact connected to the rise of President Trump.  

Progress of a “low-voltage atheist”  

We might ask, if nature is all there is, as Will insists not only in discussing natural rights, but also in his later chapter “Welcoming Whirl: Conservatism Without Theism,” then what is the ground of freedom? If everything is contained within nature and determined by nature, wouldn’t that include us supremely intelligent chimps? Can intelligent chimps also be free and autonomous individuals? Can effect be greater than the cause? Will asks if we are just a body or if we have a body, plus something else such as dignity, soul, etc.? He comes down on the latter, but his case is mostly consequential: Man would likely do even more horrible things to man, if man is only matter in motion. I agree, but why we are more than just bodies must be answered conclusively, particularly by a natural rights theorist.

Such was part of the thinking that American anticommunist writer Whittaker Chambers confronted as he exited communism and ended his betrayal of his country on behalf of the Soviet Union. In reflecting on the materialism that guided his ideological communism, Chambers observed that “man without mysticism is a monster.” Will notes of Chambers, “A person capable of saying this is capable of monstrous thoughts,” and accuses him of “so to speak, excommunicating atheists, agnostics, and skeptics…from the human community.” By extension, Will continues, the conservative movement Chambers has indelibly shaped stands accused because it still lionizes a moral and political extremist like Chambers. Full disclosure: I am one of those conservatives.

Chambers meant with his statement that without God, man will ultimately organize the world against man because man believes there are no limits to human will. I think the 150 million people murdered by atheist communist and fascist governments might provide some basic evidence supporting this proposition, one also made by Henri de Lubac in his masterful work, The Drama of Atheistic Humanism. I have written widely on Chambers, and I find no evidence of him denying the worth or dignity of another person simply because that person was not a theist, even though Chambers did think that theism was necessary for the defeat of communism and the best defense of liberty. Chambers never, as Will claims, “planted the predicate for committing monstrosities against those who they see as not fully human.” Will makes this claim against a man whose recoil against communism emerged because “he heard the screams” of the victims of communism. As Andre Malraux told Chambers, “You have not come back from Hell with empty hands.” In making these accusations against Chambers, Will unfortunately engages in his own version of atheist identity politics.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 07, 2019 at 10:37:12 am

This is a most interesting piece. But it seems to me to leave us with some striking problems.

First, what the author says about the context of the Founding seems to me very plausible. But this then leads us to the issue: what do we do, when society no longer has the kind of social and religious setting against which the Founding took place? Can a society operate, just on the basis of the Constitution and whatever religious and social views people within it might come up with? And if it can't, what then? More generally, one might ask: how does such a society reproduce itself, if it accords people within it freedoms of a kind which may create situations within which it is not clear that people will be brought up in the sorts of values and ways of life which will foster allegiance to the Constitution in anything like its original spirit, or the kinds of values which would make life within a society shaped by it, work?

Second, it is sobering - if, say, one looks at accounts such as the remarkably similar Robert Putnam Our Kids and Charles Murray, Coming Apart, as well, in its way, as Tyler Cowen's Average is Over - that there is the problem of the inter-relationship between the kinds of changes that have taken place in the character of our society, and the sorts of values that inspired the Founding, and the traditions and social institutions which were in the background to it. There is then the twofold issue of, on the one hand, America of the Constitution as having given birth to these conditions and the people shaped by them, and, on the other, of what those such as Will and the author of this piece would suggest might be done.

I write all this with respect, just because I think that these issues face us all, and - or so it seems to me - it is not easy to address them. But it seems to me that those attracted to Will's views, or those of the author, also need, and quite urgently, to suggest what might be done!

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Jeremy Shearmur
on October 07, 2019 at 15:16:06 pm

Many good points here. With regard to Will and the Judiciary, I found this part interesting:

"Will finds evidence for a natural rights jurisprudence in the little-noted transmittal letter sent with the proposed Constitution from the Constitutional Convention to the Congress on September 17, 1787, which held, 'It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved.' Will reasons that 'Drawing that line is the fundamental and unending task of the judicial branch.'"

It sounds like George Will is in favor of judicial supremacy with regards to WHO gets to interpret the Constitution. I've been completely convinced by Walter F. Murphy that departmentalism is what the Founding Fathers intended, not the judicial supremacy of Cooper v. Aaron.

There are several texts from Madison that show this (especially from his early speeches in Congress), but you can even see it in Hamilton's Federalist 78:
"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void... NOR does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both"

That is how we ought to interpret Marshall's statement in McCulloch; the clashes between branches of government on the interpretation of the Constitution is actually intended: "the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist."

www.jstor.org/stable/1406655

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CJ Wolfe
on October 08, 2019 at 12:36:27 pm

What we want ideally is the three different branches to cooperate with one another so as to avoid a constitutional crises. If the legislature thinks a bill would be an unconstitutional law, it ought not write it, vote for it. If the President thinks it would be unconstitutional he should veto it. And if the courts think it's unconstitutional, they should nullify it.

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Jonathan Rowe
on November 04, 2019 at 08:18:22 am

[…] over the last few years are gobsmacked by citizens’ ostensibly mad decisions. George Will’s new libertarian book is borderline scornful of democracy; he believes that voters are generally uninformed, that […]

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Keep Calm and Self-Govern On

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.