January 21, 2020
A conservative sensibility
A conservative sensibility
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.”[291]
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.”[65] 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.”[149] A “properly engaged judiciary is duty-bound to declare majority
acts invalid when they abridge natural rights.”[160] 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.”[23] The purpose of “the Constitution’s architecture . . .
is to protect liberty.”[214] 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.”[23]
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;[290] 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.”[105]
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”[101]
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.[141] 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.”[163] The government bears the burden of
persuading the Court “that its action is both necessary and proper for
the exercise of an enumerated power.”[163] (emphasis in the
original) “[A]ll government
interventions in the process of society’s spontaneous order are presumptively
of dubious legitimacy.”[208]
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.”[159] 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.”[171] “It is from Locke
that Jefferson and other Founders derived their understandings of the natural
rights to life, liberty and property,”[171] 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.”[172] 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.”[228] 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.”[282]
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.[291]
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.”[296] 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.[140] However, in attacking hyperactive government, he criticizes
certain regulations as corrupt, but all of his examples are from states. [209]
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.”[351] Again:
“Today, . . conservatives correctly argue that our government has become a
deforming force, corrupting the country’s character.”[528]
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.”[338]
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.[473]
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 . . . .”[486] 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.”[503]
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.”[516] 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.”[517]
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.[35] He states that the Declaration “affirms” natural rights, that the
Constitution’s purpose is to “secure” inalienable rights.[150] 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.”[10]
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.”[12]
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.
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.
5 https://www.washingtonpost.com/wp-dyn/content/article/2009/02/13/AR2009021302514_pf.html
7
https://www.washingtonpost.com/opinions/if-trump-is-nominated-the-gop-must-keep-him-out-of-the-white-house
/2016/04/29/293f7f94-0d9d-11e6-8ab8-9ad050f76d7d_story.html
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