Liberty Is Self-Government, Not Rights Alone - Intercollegiate Studies Institute: Think. Live Free.

Liberty Is Self-Government, Not Rights Alone

 

This year marks the fiftieth anniversary of the publication of Willmoore Kendall and George Carey’s Basic Symbols of the American Political Tradition. The book directly confronts the thesis of twentieth-century progressive thinking that the heart of the American tradition was an equality of expansive rights rooted not in self-government but in the Bill of Rights and the Declaration of Independence, whose meaning progressive intellectuals had recast in their image. The book launched volleys against Abraham Lincoln for his “derailment” of the American tradition by placing equality instead of ordered liberty at the heart of the Constitution. This enthronement of equality, Kendall and Carey claim, has reduced our capacity for republican government according to “the deliberate sense of the community.” Equality as an architectonic constitutional principle produces a binary sorting of policy options, evaluated with reference to whether they promote egalitarianism or inequality.

I think the authors were correct in their diagnosis of egalitarianism suffocating the air of republican virtue, but they erred by attributing the source to Lincoln. Yet Kendall and Carey also correctly look to the “official literature,” that is, progressive scholarship, for the full development of egalitarianism in the twentieth century and its enlistment in founding a new constitutional regime.

The effectual truth of their diagnosis—manifestly evident to us fifty years later—is that this ideological turn has elevated executive bureaucracy and the federal courts at the expense of Congress. These institutions are more aptly fitted for making black-and-white decisions that instill or deepen rights claims while denying legitimacy to opponents of these claims. Deliberation becomes a distraction: decisive action that separates the constitutional progressive sheep from the illegitimate benighted goats becomes the end of everything.

The genesis of Basic Symbols was in a series of lectures that Kendall delivered at Vanderbilt University in 1964, which serve as the first four chapters of the book. As coauthored books go, this one features a rather clear delineation of contributions, and noting these is significant for understanding the work. Carey’s preface to the first edition specifies that he edited Kendall’s chapters and added, after Kendall’s death in 1967, chapters 5–8, with the last chapter being an “extra” lecture Kendall delivered at Vanderbilt, which Carey reproduced with little editing and no additional writing. Carey’s chapters and Kendall’s “final” lecture contain the rather strenuous criticism of Lincoln.

The criticism is overwrought. In an early review of Basic Symbols, Leo Paul S. De Alvarez countered that devaluing equality also devalued liberty. As in, those who possess liberty must be considered equal in their use of it. As stated by Alvarez, Kendall and Carey probably wouldn’t disagree. Our authors are ultimately critiquing an antinomian equality that would attribute protected status to freedom conceived as boundless autonomy and to expanding realms of citizens’ dependence on government programs. Our sixteenth president was no leveler or supporter of social-democratic policies. He believed in free labor, capitalism, and the opportunities that a market economy delivered to citizens. Kendall’s review of Harry Jaffa’s Crisis of the House Divided, published some years earlier in National Review, advanced a more nuanced critique that feared Lincoln’s aggressive statesmanship—while understandable given the Civil War and secession—would be endlessly appropriated by presidents who would seek to remake America in more progressive and revolutionary terms. Such presidents would seek a crisis. This critique wasn’t so much about Lincoln as about a consensus that had been formed around him by academics and activists.

The essence of Basic Symbols is severable from the Lincoln critique: we are a self-governing people who were confronted in our colonial beginnings by the question of how we can best do this. We have chosen to do it through assembled representatives in legislative bodies who deliberate on our behalf, and who must do so virtuously, in accordance with the classic ends of government as most aptly described in the preamble of the Constitution. Attempts to circumvent this process through Supreme Court decisions or executive rule-making enthrone a new elite and a new politics, largely independent of the people’s control.

To engage in free government under law requires a consensus of the people about who they are collectively and what they mean to do. Such a consensus generates prudence and confidence, suppleness and strength, enabling a people to govern themselves in the face of the challenges that will inevitably visit them. Kendall and Carey supply us with a foundational consensus of deliberation under God and accountability to law and the electorate, a consensus that once guided us without American statesmen being conscious of its contents. They breathed and lived it. But we have replaced it with egalitarianism and rights-talk. Our lack of belief in the former constitutional consensus hobbles us now, thus ensuring that the policy problems that land on us can be settled only with endless paeans to liberation from historic oppression and endless turns of the ratchet for more executive bureaucratic power.

Reclaiming the Tradition

Kendall’s chapters locate the derailment of the old consensus in the “official literature” of the American political science discipline. This bench has produced voluminous scholarship that has shaped the way the intellectual class thinks about American politics. Kendall’s partial list of the purveyors of the official literature includes Charles Beard, J. Allen Smith, James MacGregor Burns, Robert Dahl, Richard Hofstadter, Merle Curti, Ralph Gabriel, Vernon Parrington, and Clinton Rossiter. These academics speak to the American political tradition “with a single voice, . . . the tradition of ‘freedom’ and ‘equality,’ the tradition of ‘rights of the individual,’ or, if you like, of the natural rights of the individual, as proclaimed by our Declaration of Independence and as glorified and protected by our Constitution and our Bill of Rights.” The problem, Kendall asserts, is the ideological confirmation that guides their scholarship, which leads them to avoid the significant discrepancies and gaps in the American constitutional tradition regarding the thesis that America is merely an unfolding story of individual rights and equality.

Yet no one had really challenged them on their central claims and recovered a constitutional tradition that these progressive scholars had denied exists. If equality and individual rights are the summum bonum of American constitutionalism, as the official literature teaches, then why are there so many obvious contradictions with the actual history contained in the Founding? This isn’t just a history lesson, however: Kendall and Carey believe that republican constitutionalism in America can’t bear the weight the new constitution places on it. We become a nation of citizens fit only to be ruled, not self-governed, by a teleocratic politics of rigid progressivism. For recent evidence that Kendall was on to something here, consider Bradley C. S. Watson’s book Progressivism: The Strange History of a Radical Idea, which similarly locates progressive scholarship in a deception about America’s Founding and about progressivism itself. Kendall and Carey meant to join the fray with these lectures, which outline a path for constitutional scholarship that will get history right and reacquaint us with our Constitution.

Kendall discusses some of the gaping problems that the official literature avoids. If the most significant aspect of our Constitution is its Bill of Rights, then why did the Constitutional Convention vote down an attempt to list such rights in the Constitution? Why did Publius in Federalist No. 84 claim that the Constitution is a bill of rights and note the incompatibility of an additional Bill of Rights with a Constitution built on popular sovereignty (having received its powers from the people’s representatives in constitutional convention)? The English Declaration of Rights in 1689 was an attempt to subtract certain specified powers from a sovereign king whose power was not readily accountable to the people. But this was not warranted in a government such as our own, one built on delegated, enumerated, and limited powers. Why did the first Congress spend so little time on the Bill of Rights without significant debate over its provisions? Why did Madison, who introduced the Bill of Rights in the first Congress, insist it would not alter or rework the frame of the Constitution? Relatedly, if the Declaration is the beginning of our tradition because of the phrase “all men are created equal” and its reference to rights to “life, liberty, and the pursuit of happiness,” then why does the language of rights and equality not make it into the Constitution? Was our tradition betrayed from the beginning?

Kendall argues against such a betrayal—it is the scholars who are reading things backward. They find a Constitution that is lower than the grand spirit of the Declaration and seek to remake the Constitution in the egalitarian image they have construed for the Declaration. Rights-talk isn’t in the Constitution, nor even in the Bill of Rights, because the preamble was understood by the framers to set forth the basic purposes of constitutional government, and there we don’t hear about rights or equality, but rather the classic ends of government. In fact, Kendall notes that we don’t hear about equality in the Constitution until the Fourteenth Amendment’s Equal Protection Clause, and even then its meaning is contested between equal enforcement of the law and ensuring that the law affects everyone equally. Finally, Kendall notes that the Declaration of Independence takes on a new meaning if read not as the beginning of the American political tradition but as part of a preexisting line of thought and practice, a meaning not reducible to the antics of the official literature. Rather, if we read the document as a whole, we see an American tradition of self-government upheld. That Declaration is religious, with multiple references to God as personal and providential; common-law oriented; and jealous for the freedoms of self-governing peoples. That Declaration came from a particular richness that grew in North American soil. On that claim, Kendall and Carey mount a counteroffensive aiming to rebuild a literature of republican constitutionalism.

Basic Symbols also sets itself against the dominant tendency in political science of focusing only on empirical data to understand political phenomena, and eschewing the meaning of symbols, morals, and myths as things largely unknowable by the political scientist—for example, who’s to say what it means that large numbers of ordinary Americans fly the American flag on their front porches, or that we cringe when we see Old Glory set ablaze by foreign enemies or domestic malcontents? Kendall and Carey build their case for the deep significance of symbols on Eric Voegelin’s philosophical method of understanding a people through “its self-interpretation.” To do that requires us to grasp “a people’s own understanding of its place in the constitution of being and of its role in history, of what it calls upon itself to be and do as it lives its life as a political society—a matter, in short, of the symbols by which it represents or interprets itself to itself.” And this leads Kendall and Carey, following Voegelin, to observe that our politics and the symbols of that politics reflect our deepest commitments and beliefs, arising from a people’s “relation to . . . transcendent truth, that is, the truth of the soul and the truth of society.” These are the wellsprings of the “compact” truths of a people that guide them in their collective action.

Myths are compact at the beginning of a civilization and differentiate over time in response to challenges and shifts in meaning. The compact symbol can take on new or altered significance in the ongoing development of a civilization. That raises the question of how one evaluates the differentiation process as a positive or negative evolution. The answer that Kendall and Carey give is that subsequent developments must be in accord with the original compact experience. I do not take them to be rejecting change or reform as such but to claim that progress must happen within the context of the original symbols and the truth they represent, lest certain people believe themselves capable of remaking a political tradition with their own stock of reason. They recommend we start at the beginning to get our symbols right, along with what they mean for politics.

They trace the American political tradition through major public documents of the colonial and independence eras, evidencing their Voegelin-like claim that these declarations reveal the self-interpretation of a political society to itself, to others, and to God. In the end, Kendall and Carey mean to demonstrate that the Declaration of Independence takes on new meaning when it is seen not as sui generis but as the outcome of a century and a half of republican government on the North American continent. The Declaration’s eclectic metaphysical, common-law, and theological parts make sense in that full historical light.

Starting at the beginning means picking up the Mayflower Compact, drafted and ratified in 1620. The compact symbols of American political meaning are found here.

The Full American Story

The Mayflower Compact begins “In the name of God, Amen.” The pilgrims are enacting political authority under God and hold themselves liable to him for their actions. They identify who they are, state their purposes, swear under oath, and clarify their obligations under that oath. These four purposes, Kendall and Carey argue, are the basic outline for the Constitution. We have an “identification of who is speaking, then the Preamble or statement of purposes, then the specification of the body politic and of the subscribers’ mutual obligations.” They submit to the laws of the land in identifying themselves as “Loyal Subjects” of the king. As for purposes, we have “the Glory of God,” “Advancement of the Christian Faith,” and the “Honour of King and Country.” We also have a fourth purpose: they become a body politic for “our better Ordering,” which Kendall and Carey interpret to mean the “building of a good order.” The Mayflower Compact is a deliberate act, taken unanimously, “solemnly,” and “in the Presence of God.”

The second part of the oath is worth quoting as it indicates a group coming to terms with their central predicament: they will have to govern themselves, no king or Parliament can bring order to their existence. So they “combine together into a civil body politic” to “enact, constitute, and frame such just and equal Laws, Ordinances, Acts, Constitutions, and Offices, as from time to time shall be thought most meet and convenient to the general good of the Colony.” Submission and obedience to these laws are promised by the signers.

Entailed here is ongoing deliberation for the purposes of better ordering their community with “just and equal laws.” This is the most difficult part of their future, but also a key American symbol, present at the beginning of self-government in colonial North America—namely deliberation and consent to the rules by which we will bind ourselves. Freedom exists in the making of the Compact, not in a list of rights, and a kind of equality is found whereby a member can give or withhold consent to laws. To maneuver around holdouts demands compromise, conversation, and the balancing of power among different parts of the community.

Basic Symbols also treats the Fundamental Orders of Connecticut (1639), the Massachusetts Body of Liberties (1641), the Virginia Declaration of Rights (1776), and the Declaration of Independence (1776), noting the potential new symbols and problems each one produces, but overall Kendall and Carey highlight their continuity of tradition. Connecticut’s document is in line with the Mayflower Compact on deliberation for “orderly and decent government” but introduces the troubling departure that government is required to maintain the purity of the gospel. Government in pursuit of perfection, that is. Will this symbol drop off and prove harmless or mutate into a later, secular understanding of perfection?

Massachusetts points toward a list of freedoms in the document, anticipating perhaps the future notion of individual rights as the basis of government. There is something akin to life, liberty, and the pursuit of happiness, but the freedoms actually listed in the document are consonant with the common-law tradition and are restrictions on the executive and judicial branches, not the elected assembly, regarding involuntary servitude, death, cruel punishment, double jeopardy, and habeas corpus. No great shakes there for civil libertarians. Other freedoms are listed regarding protections for life, bail, and property, but “escape clauses” are provided such that the assembly can negate those freedoms as they deem fit for public order. Do we have, the authors ask, “an omnicompetent and legally omnipotent legislative assembly”? In short, no, but not for reasons we would likely discern. The larger point of the Massachusetts document—and this is regnant in Kendall’s constitutional thought—is that the deliberating people are held to a standard above their wills that must guide their deliberations. That standard is not necessarily a catalogue of rights but is the full moral and humanistic tradition of the West that should guide their work: God, Christianity, and natural law hold them accountable. In the Massachusetts document, the “General Court” must govern its affairs according to “humanity, civility, and Christianity.” That is, the legislative assembly must be guided by the “symbols” of the “transcendent truth of soul and society” that have shaped Western civilization over the centuries.

Much of the same can be said for the Virginia Declaration of Rights, whose rights language ultimately consists of common-law rights held against the executive and judicial branches. Even the use of the term “inherent rights” applies to the constituted people of Virginia and not to individuals as individuals. Again, as in the Massachusetts Body of Liberties, which predates the Virginia document by more than 130 years, ultimate deference for the rights listed goes to the legislature. The Virginia assembly stands judged for its conduct under the symbol of “justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”

None of the documents interrupts with a new catalogue of rights or sets forth equality as the aim of government. In the light of these documents, the Declaration of Independence takes on a new light, Kendall and Carey argue. We see the document as conversant with the political symbols that came before it, most especially their long-exercised right of self-government, making it a quintessential North American document. True, the Declaration of Independence does not speak of a specific form of government that must follow it, but it is clear that Parliament’s violation of the colonial assemblies, laws, and courts is unforgivable and necessitates independence. The Americans cannot live as slaves to an absolutist government, even if its taxes and intrusions are by one measure relatively light; the freedom of self-government has been encroached. The colonists announce to the world their separation from the British Empire, which they are entitled to make as equal, constituted peoples attached to the empire. The colonial representatives agree to the Declaration’s claim of independence, which is predicated on a list of grievances concerning violations of their long-held constitutional rights. They make bold such a proclamation as “with the firm reliance on the protection of divine Providence,” and they pledge their “Lives, Fortunes, and sacred Honor” to one another. The Declaration stands under God, is grounded on “the Laws of Nature and of Nature’s God,” and the “Supreme Judge of the World” judges “the rectitude of their intentions.”

Have we missed the real grandeur of our constitutional independence by narrowing the document’s focus to an endless egalitarianism?

The Republican Ambition

The preamble to the Constitution is a lodestar in this book for directing the purposes of our deliberations together. Indeed, the preamble is the symbol of our commitment to republican government and our better ordering, not the Declaration. Yet this has been shoved aside by the rhetoric of egalitarianism and rights, which now orders our deliberations. Consider the aims the preamble lists: to “form a more perfect union,” “establish Justice,” “domestic Tranquility,” “provide for the common defense,” “promote the general welfare,” and “secure the blessings of liberty.” Translation: the requirements of republican government are immense and require a prudent balancing, weighing, and articulation of problems to be solved, objectives to be achieved, and the means to do so. But the prudence of a constitutional statesman cannot be unduly limited by ideological criteria; he or she must be able to see politics in all its facets and draw from the fund of knowledge, history, and virtue that the country possesses in order to address the discrete situations of government. The reservoir of meaning contained by the preamble, Basic Symbols argues, has been drained by federal court decisions that range widely over the land, denuding us of the habits of self-government in favor of absolute determinations stemming from the Bill of Rights or the Fourteenth Amendment, to say nothing of unilateral decisions coming from executive agencies whose decisions can set curricula for the nation via “Common Core,” mandate the purchase of contraceptives by employers, nearly eliminate due process protections for students on college campuses, or contravene established law—as happened repeatedly in the Obama administration with regard to welfare benefits, illegal aliens’ status, and suspending provisions of Obamacare that were inconvenient to implement.

Have we strayed so far from the political tradition outlined by Kendall and Carey that its recovery seems impossible? We are six decades into the rights revolution of the Warren Court and five decades removed from the Civil Rights Act and the Great Society, which have remade the federal government in size, breadth, and power. Moreover, the regime-changing nature of these decisions, laws, and rules has shifted power to the judicial and bureaucratic elites who rule over the people, with faint traces of accountability. Despite the frequently controversial nature of their decisions when initially made, they become nearly impervious to repeal in practice. Federal judges often extrapolate from federal-agency rule changes in court decisions—a fact evident in the requirement for student busing in the 1970s, which was nowhere ordered in civil rights legislation or executive rules. More recently, the Supreme Court in Massachusetts v. EPA (2007) essentially forced the EPA to use the Clear Air Act to regulate carbon dioxide and greenhouse gases as pollutants, even though the act doesn’t contemplate them as such. The court’s real intent was to begin a process of federal global-warming regulation. Meanwhile, Congress runs from debating the grand issues of our time, hiding from key political disputes that must be solved. Often its most visible members compete to promote ideological agendas that will not be submitted to any committee or legislative process but rather are designed to boost an individual member’s political “brand”—the politics of celebrity.

This stands in marked contrast to what Kendall and Carey termed “constitutional morality,” which emerges from Publius’s explanation of the merits of the Constitution, an explanation that renders it a viable document that can achieve the purposes of republican government by enabling the branches to work together and not destroy one another. The path Publius urged is compromise in order to seek consensus among the different elements in government. But the constitutional morality of Publius decreasingly carries the day.

Wisdom, which rides with Kendall and Carey, counsels the following: our divisions are real, but they do not have to permanently burden us with broken government, intense ideological hatreds, and a written constitution that seems displaced from the actual workings of the federal government. Our problems stem from the crisis that Basic Symbols identifies. The new tradition detests Publius’s old morality. If the sense of the community was the aim of congressional politics, the new tradition is impatient, seeking rights, equality, the open society, etc., by any means necessary. Where the old tradition valued patience, understood it to be a virtue of a deliberating people, and did not aim only for a majority vote in each house but at something that approached consensus, the new morality is filled with righteousness and believes that it is possessed with final truth. Why would you stand in the way of women’s rights, gay rights, transgender rights, rights for the poor, protection of the environment, healthcare for all, rights for immigrants? These rights proclaim a new symbol, the autonomous individual—bereft of our tradition and any obligations to the public square—and require a new constitution in thrall to their demands. The list goes on, and with it is the fury of a gnostic certainty that has gripped progressives for decades, turning our politics into the equivalent of war. The conservative has tried to resist this in various ways. The only answer, however, is to submit to our country the political meaning of republican constitutionalism and announce why we should be dedicated to it, not to government by judiciary or bureaucracy. The basic symbols are presently behind lock and key. They’re also buried. We need to bring them out.

Richard M. Reinsch II is the editor of Law & Liberty and the coauthor, with Peter Augustine Lawler, of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty.


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