January 21, 2020
I read George Will’s latest book, The Conservative Sensibility, for two reasons. I was interested to know what that “sensibility” might be. I was hoping to find a more rational approach to conservatism than that provided by modern Republicans, especially since their captivity by Trump. Although Will is no fan of Trump, I was disappointed. Will’s conservative sensibility is in fact a political argument in which one must take sides. It offers little in the way of meaningful political insight.
My reaction to Mr. Will’s book is not that of an old foe. For many years I admired his columns, even when I disagreed with him. That ended when he took an abrupt right turn in the early 1990s, abandoning a philosophy he had expressed many years earlier, a "belief in strong government, including the essentials of the welfare state."1 (The abruptness of the change is illustrated by his views on term limits. He dismissed the notion in a column in January, 1990, but adopted it as a necessary change in a book published in 1993).2 At times over the past three decades he seemed to be pulling back from an anti-government stance, but he has embraced it in this book.
My reaction also is not that of an annoyed leftist. I am, by temperament and inclination, conservative. I am a political liberal — a progressive in Will’s terminology — by conviction. That being the case, I accept liberal ideas on their merits, but am sympathetic to views which are genuinely conservative. I suspect that many people share that mixture of ideas and impulses.
The book’s purpose, Will tells us, “is to suggest how to think about . . . the proper scope and actual competence of government.”[xvii]3 His view is narrow, consisting primarily of a desire for limited government. The Founders, Will says, learned from philosopher John Locke this peculiar lesson: “government exists for the modest purpose of protecting liberty, understood primarily as freedom from government.”
In appealing to the Founders, Will tells us how far we have moved — strayed— from their project of limited government, a government, as he sees it, not simply limited but small and quiescent, “maintaining order, protecting property, and otherwise staying largely out of the way of individual striving.” There is now, and has been for a century, he argues, a “conflict. . . between the founders’ vision and the progressives’ explicit repudiation of this . . . .”[xxxvii]
Will stresses natural rights. He cites Locke’s theory of such rights, and claims that the “American project, distilled to its essence, was, and the conservative project is, to demonstrate that a government constructed on the assumptions of natural rights must be a limited government.”[xxix] “Any government is legitimate if it secures natural rights and rules by the recurrently expressed consent of the governed.” A “properly engaged judiciary is duty-bound to declare majority acts invalid when they abridge natural rights.” He refers to those rights listed in the Declaration of Independence: life, liberty and the pursuit of happiness.
“Government’s primary purpose is to secure pre-existing rights.” The purpose of “the Constitution’s architecture . . . is to protect liberty.” Is the right to liberty limited by race, or does it pre-exist in suspense and somehow come into being for different people at different points in history? How would people without rights acquire them? In the real world, it’s by government action; rights are what the law enforces. Will insists on the natural variety: “Government does not create rights; it does not dispense them.”
However, in a discussion of the evolution of the federal government, he bumps up against the fact that blacks did not have those natural rights in the Founders’ day, and fudges the description of how they came to acquire them. The Civil War “affirmed equality of natural rights” he tells us; more accurately, the government created rights for those who previously did not have them.
Mr. Will denounces, on principle and as a departure from the Founders’ model, the increased power of the executive branch at the expense of Congress. “The ever expanding powers and pretenses of the presidency have become a menace to America’s Madisonian balance of separate powers.” In the age of Trump, there is merit in criticizing unchecked presidential power, and in Will’s call for a larger role for Congress; it has, for example, ceded war powers to the President. However, most of his argument about “the swollen presidency” and the fading of Congressional power is in aid of his desire to dismantle the administrative state, to which too much, he believes, has been delegated.
Although Will thinks that Congress should be more assertive, he continues to favor term limits,[140-41] which would make it less so. He acknowledges that term limits would rob Congress of “institutional memory,” and that it would require more Congressional staff to fill the void. He supports such an expansion even though the unelected expert staff resemble those at the administrative agencies he denounces.
Will opposes “rent-seeking,” i.e. influencing government programs to gain private advantage:
As [the] government has become ever more important in the allocation of wealth and opportunity, it has become an ever more enticing target of rent-seeking factions, which are incited by the government’s interventionist behavior. The necessary, and probably sufficient, cause of this misuse of government was the death of the doctrine of enumerated powers.[xxxi]
Political contributions are a vehicle for seeking favors, but he opposes limiting those contributions.[86 ]
His favorite branch is the judiciary, specifically the Supreme Court, which he, unlike most conservatives, wants to be activist. Again, his aim is cutting back the power of government, by imposing the limitations he sees in the Constitution. The “judiciary’s primary duty is to defend liberty.” The government bears the burden of persuading the Court “that its action is both necessary and proper for the exercise of an enumerated power.” (emphasis in the original) “[A]ll government interventions in the process of society’s spontaneous order are presumptively of dubious legitimacy.”
In his discussion of “the judicial supervision of democracy,” Will asserts that “Lockeans stress rigorous judicial protection of individual rights, especially those of private property and the freedom of contract that define and protect the zone of sovereignty within which people are free to act as they please.” He thus declares, in effect, that the protection of property and contracts is essential to liberty. That, he says, has become part of our governmental structure, because the “Constitution is John Locke’s political philosophy translated into institutional architecture.” “It is from Locke that Jefferson and other Founders derived their understandings of the natural rights to life, liberty and property,” now using Locke’s formula and dropping the Declaration’s substitution of the pursuit of happiness for the last term.
The Founders “understood that the right to property could not be severed from an implied corollary right: the right to contract to create arrangements important to the acquisition and disposition of property.” Did they so understand? Never mind. Will, in disapproving of government regulations, is promoting a long-abandoned theory of property and contract rights, in the process declaring his approval of Lochner v. New York,4 an infamous 1905 decision which upheld the “right” of workers to “contract” for — submit to — unlimited overtime work.[164-72]
In a chapter on economics, Will speaks of the advantages of a market system, which most of us would concede, and advises us that the USSR and the National Industrial Recovery Act were failures, as if anyone proposed copying them.[248-50] He claims that “a commercial republic — a market society — promotes the habits (virtues) of politeness and sociability.” I must admit I hadn’t noticed that. He is concerned about deficits and national debt, which is entirely reasonable, but what should be done?
In the Introduction, referring to “the unsustainable trajectory of the welfare state” Will said, “Everyone understands what must be done: a mixture of increases of taxes and reduction of promised benefits.”[xxx] He is consistent in his criticism of welfare, but it’s not clear where the tax increase would cone from, for he dislikes the progressive income tax. [269-79 ] He denounces the swollen size of government, but doesn’t suggest which agencies, functions or programs should go, except to note that the effect of “redistributive ideology is to legitimate the existence and activities of the agencies of redistribution.”
Will credits Lincoln with reconnecting the nation to “the Founders’ premises,”[151, see 517] but those premises apparently no longer included limited government, for the government headed by Lincoln was as active and intrusive as it is possible to be, using military power to prevent states from seceding, from achieving what they no doubt saw as their liberty. Will acknowledges that the “Republican Party’s commitment to minimalist government could not survive the first Republican presidency.” However, he sees that development not in the war itself, not in such acts as suspending habeas corpus, but in the freeing of the slaves.
As the Civil War changed from a war to restore the Union as it had been to a crusade for a “new birth of freedom,” the federal government came to be regarded differently. It was seen less as a threat to freedom and more as a provider and enlarger of freedom. The proximate cause of this change was the Emancipation Proclamation, which was made possible by the Union victory at Antietam [Creek in Maryland]. In a sense, John Locke died at Antietam.
The last two sentences are baffling, and this adds to the puzzle:
Reconstruction in the South, and government-driven economic development in the North and West, reflected a redefinition of American freedom as something to be served by, not threatened by, government power. . . . The post-Civil War Republican Party normalized vast government interventions in the nation’s economic life.”[291-92]
The death of Locke presumably is a metaphor of a major change of philosophy in which natural rights and limited government fade from the picture. The Constitution no longer would be his philosophy as “institutional architecture” All this from emancipation? Surely Will does not consider the Proclamation to have been a mistake, so why does he go out of his way to suggest that the big, activist government he disdains flowed from it?
Five pages after declaring the death of Locke, Will indicates that the conservatism of the present day is a recent construct: “Contemporary conservatism was born in reaction to the New Deal and subsequent excessive enlargement of the state.” Does that mean that conservatism now is unconnected to Locke? According to the index, he is mentioned twelve times on subsequent pages. Each of those references could be classified as merely historical, but Will continues to appeal to the Founders, who were, he says, taught by Locke. See the reference below to his “Borne Back” chapter and his summary in the Introduction.[xxix]. Perhaps Locke is to be resurrected.
Somewhat inconsistently with his praise of Lincoln, Will thinks that greater power in the states would be better; he would return the election of Senators to state legislatures. However, in attacking hyperactive government, he criticizes certain regulations as corrupt, but all of his examples are from states. 
Mr. Will deplores, with cause, the condition of the culture: “Today’s culture is a reason for thinking that perhaps people should be a bit more circumscribed by manners and mores. . . . America’s normally sunny disposition has become clouded by anxieties about the uses to which freedom is being put.” Is liberty, after all, not an unmixed good? “When norms come to be considered optional or, worse, repressive, liberty degenerates into license, which is not a blessing.”[348-49] What is to be done? Perhaps government, for all its faults, might contribute: “a function of law is to use incentives to point people toward worthy ways of living, thereby strengthening what the polity considers essential virtues.” Of course, our government has done the opposite: “It has done much harm by destigmatizing and encouraging dependency.” Again: “Today, . . conservatives correctly argue that our government has become a deforming force, corrupting the country’s character.”
He makes valid points about the excesses of liberal identity politics. He regrets, appropriately, the lack of common purpose, but his emphasis on individual liberty seems to run counter to that. He refers to “the progressive project of diluting the concept of individualism,” which is “a prerequisite for advancement of a collectivist political agenda.”
In a chapter entitled “Welcoming Whirl,” Will sets forth his views on religion, which are negative. He disposes of the myth that the United States was founded as a Christian nation. He describes himself as an “amiable atheist;” with or without amiability, that is an unusual stance for a conservative. He seems to be advancing a theory that conservatism is better off without a religious foundation — or, at least, does not require one — but advises those who want limited government to look to religion for support.
That chapter includes a section entitled “Cosmology and the Conservative Sensibility,” which emphasizes the contingency of life and continues his critique of religion. “Conservatism,” he thinks, “should embrace and cultivate a cheerful, even exuberant acceptance of the unplanned and the undersigned [undesigned?], in the cosmos and in society,” and in “the unplanned complexity of the whirl . . . .” I wonder how many conservatives would be attracted to that free-floating view.
In that and the following section, Will discusses science but, notably, fails to mention contemporary climate change, the science of which he questions.5 He finds Darwinism useful in supporting his preference for an “order produced by lightly governed individuals consenting to arrangements of their devising.”
In the final chapter, “Borne Back,” he reiterates that theme: “The Founders bequeathed to posterity a republic that throve under a limited government that provided social space for the creativity of society’s spontaneous order.” We must recapture that: Lincoln’s “public life was devoted to reconnecting the country to the principles of the founding. That is conservatism’s core purpose today.” On the last page, 538, Will asserts that “the past has become a reproach, judging the present for its departure from the Founders’ blended patrimony of philosophy and prudence. So the question now is: Can we get back not to the conditions in which we started, but to the premises with which we started?”
Debates regarding the proper functions and limits of government will go on as long as the nation exists, and are healthy if carried out in realistic and specific terms. Not all of the arguments for limitation come from the right, and the advent of the imperial presidency is neither a new nor a distinctly conservative insight. Administrative regulations can become overly complex. However, it contributes little to a search for good solutions to argue that everything wrong or annoying about the federal government exists because progressives have abandoned a narrow interpretation of fundamental American principles.
Much of the philosophy set forth in The Conservative Sensibility is difficult to take seriously, not only on the merits, not only because of inconsistences in the argument, but because Will seems to mean less that what is said. In the passages noted thus far, in discussing natural rights he seems to be referring to something real, a set of principles which may be discovered by reason. He underscores this by declaring that there is a universal human nature. He states that the Declaration “affirms” natural rights, that the Constitution’s purpose is to “secure” inalienable rights. He provides examples of those rights: life, liberty and the pursuit of happiness (or property). However, none of that can be taken at face value; it is an extended rhetorical device. To be fair, he has hinted early on that, perhaps, natural rights doctrine is not to be taken literally.
In the Introduction, Will starts out seeming to adhere to the reality of natural rights: “Such rights. . . are natural because they pre-exist acts of collective human will and cannot be nullified by such acts.”[xxxvi] Again, in the first chapter, (“The Founders’ Epistemological Assertion”): “A limited government — a government whose powers are limited because they are enumerated — presupposes a reservoir of rights that pre-exist government.”
However, he soon calls that into question: “Some Americans [of the founding era] thought their rights derived from history; others thought their rights could be read in the book of nature. . . . Both sets of Americans were, without quite knowing it, rule utilitarians. That is, they were saying that certain behaviors, practices and conventions are, as a general rule, conductive to happiness and flourishing.” So, is natural rights theory of any real consequence? “It is . . difficult, and perhaps pointless, to distinguish between, on the one hand, natural law and natural rights reasoning and, on the other hand, the reasoning of rule utilitarianism. Both. . . are recommending behaviors and arrangements they consider, as a general rule, most useful to creatures with our natures.”
That might still allow him to claim that there is some reality to “natural rights reasoning.” However, in an interview6 following the publication of the book, Will went a step further, eliminating any distinction between the two approaches. The interviewer said, “The concept of natural rights is easier for me to understand as a legal fiction that imports certain ethics and standards . . . that are manifestations more of what we ought to have than of human nature.” Will replied: “I agree with that. Those of us who believe in natural rights without a theological underpinning are essentially rule utilitarians. Societies flourish when they acknowledge, respect, and follow certain rules.” In other words, natural rights are not a reality, merely a useful concept.
In that interview, he also said this (referring to economist Friedrich Hayek):
Progressives said that as society becomes more complex, there is more urgency for government to intervene and supervise it. The Hayek view is that this is exactly wrong and that the more complex a society becomes the more perilous it is for governments to intervene. As a society becomes more complicated, governments know less of what there is to know and markets—which are simply information-aggregating mechanisms—should be allowed to work.
That comment parallels the book. Then he was asked: “Is [protecting individual rights] incompatible, though, with a government building highways or providing Medicare for all? He replied:
Not a bit. Madison’s idea in Federalist 45 that the powers granted to the federal government would be few and defined is no longer the case. The interstate highway system started as the National Defense Highway Act. I went through Princeton’s graduate school supported by a grant provided by the National Defense Education Act. In the Elementary and Secondary Education Act of the 1960s, the federal government moved into an area of state and local responsibility, and No Child Left Behind was a subsequent iteration of that.
Then what is all the talk about limited government and enumerated powers about?
My conservative sensibility is not opposed to ameliorative government. It is perfectly fine for the American people to decide collectively in 1935 that they want Social Security, or to decide collectively in 1965 that they want Medicare. In 2025, maybe that will be single-payer health care. Those are all within the broad parameters of reasonable democratic choice.
After the last two statements, little remains of the argument about abandoning the Founders’ model, or of his criticism of progressivism and big government.
Here, also from the interview, is a statement by Will of the issue as he then saw it : “We need to have a conversation about the proper scope and actual competence of government. Progressives have an enormous stake in this. Everything progressives want to do depends on strong government, and that depends on confidence in government.” That is a valid point, but it overlooks the problem that any current lack of confidence may be the result of years of attacks on government by conservatives, to which The Conservative Sensibility contributes.
1 “ Statecraft as Soulcraft, p. 12 (1983)
2 The column is collected in Suddenly, pp. 235-36 (1990); the 1993 book is Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy
3 The bracketed numbers are citations to pages in the book.
4 198 U.S. 45