Right Reason

Some Remarks About Constitutional Conservatives...

 

 

 

If there is one benefit that the Trump Administration has brought to the United States, it has been the nomination of Neil Gorsuch to fill the late Antonin Scalia’s seat on the Supreme Court. For better and for worse, Mr. Gorsuch’s nomination has provided the opportunity for commentators to discuss the late Supreme-Court justice’s judicial philosophy of originalism. Over at Vox, Sean Illing has argued that Scalia’s originalism was less a purely judicial philosophy and more a wider political ideology:

Scalia’s philosophy is hard to square with the reality of the constitutional debate. The implication is that the meaning and intent of the framers is perfectly clear, and that judges should adhere rigidly to that.

Mr. Illing goes on to quote Barack Obama’s Audacity of Hope’s discussion of this aspect of legal philosophy:

Anyone like Justice Scalia, looking to resolve our modern constitutional dispute through strict construction, has one big problem: The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted not just about minor provisions, but about first principles; not just between peripheral figures, but within the revolution’s very core.

I must admit that I find it difficult to charitably reproduce the argument that, because there was disagreement when a law was written, that something was agreed to when the ink was put to paper, that the written law therefore does not contain some resolution or synthesis of that disagreement.

 

 

As a Catholic, I am reminded here of canon law. Canon law is the internal ecclesiastical law that governs the Roman Catholic Church, derived from Roman law, and it is the longest continually legal system in all of Western civilization. Canon law states (749§2) that: “The college of bishops also possesses infallibility in teaching when the bishops gathered together in an ecumenical council exercise the magisterium as teachers and judges of faith and morals who declare for the universal Church that a doctrine of faith or morals is to be held definitively…” However, anybody who has a bit of knowledge about the Catholic Church knows that ecumenical councils, although they promulgated written dogma, scarcely ever settled conflict in the generation in which those debates raged. One need only examine how long, say, the Arian controversy lasted after the Council of Nicaea lasted to see that written dogmas frequently failed to content partisans at odds with those controversies.

However, no canon lawyer would argue that, because there was disagreement about the Arian controversy after the Council of Nicaea, that the Nicaean creed is a “living creed” that may be adapted to the arbitrary opinions of subsequent bishops. Instead, the Nicaean creed said something. Even if contemporary Arians might not have been persuaded, it was the responsibility of future canon lawyers and theologians to exactly figure out the meaning of those words and enforce them. Fast forwarding to the 20th century, for this reason, the Second Vatican Council won’t be fully appreciated until long after the death of its partisans so that canon-law jurists may impartially read and interpret the documents that Vatican II produced without having to worry about the debates that generated those documents (and which those documents resolve) still being a matter of living memory.

When one takes a historical view of legal systems, that people disagree with what a law says within the generation in which that law was put to ink is to be expected. That disagreement certainly does not imply that the written law has no meaning, it only means that jurists of subsequent generations need to be cautious about how they interpret that law. Partisans may disagree about what words say, but that does not absolve jurists of their duty to pin down what the written words of law mean and imply. Ultimately, I don’t think that disagreement does not give warrant to the introduction of a jurists’ arbitrary views into those words.

 

In another article at Vox, Ezra Klein has argued that Mr. Gorsuch is “is an extremely conservative judge at a moment when an extremely conservative judge makes a mockery of the popular will.” However, the popular will is not an element of law and should have no place in a jurists’ reading of the law. Popular will has other places to express itself in the political system, from voluntary associations to the election of Congress. Indeed, that the House of Representatives, which is probably that portion of the federal government that best reflects the popular will of the American people, is overwhelmingly Republican is evidence that the popular will desire a Supreme-Court nominee who, in Mr. Klein reckoning, is “extremely conservative”! Of course, we needn’t forget that Mr. Klein had written, back in October, that “Hillary Clinton crushed Donald Trump in the most effective series of debate performances in modern political history.” So maybe Mr. Klein should be taking a hiatus about talking about the popular will of the American people during the Trump Administration.

 

 

As far as I can see, constitutional conservatives might be the closest things to true liberals in American politics today and best vehicle for advancing the general welfare. They understand the rule of law and the primacy of the abstract. They are well-read in the intellectual fonts that influenced the American Founders, including John Locke, Montesquieu, David Hume, Adam Smith, and Edmund Burke, and whose wisdom still provides the intellectual foundation for any free society today. I have once been skeptically of many of their views on the powers of the presidency, which at time seem quasi-monarchical, but I have since been convinced by Eric Nelson’s book, The Royalist Revolution, that those views are in-line with the Founders’ ideas for the executive branch.

Those intellectual fonts, as well as the American Founders, had a confidence that, once broken free from monarchical privilege, that the wisdom of common people could secure the felicity of their society. However, they also understood that liberty cannot exist outside of the rule of law. Thankfully, breaking free of monarchical privilege does not imply the breaking of the rule of law, and constitutional conservatives are aware of that. In a world where only the dose makes the poison, constitutional conservatives have a proper skepticism of experts granted privilege that has turned into an excessive populism in the Western world today.

 

All the World's a Stage: People but Players and Institutions the Directors

From Edmund Burke's Reflections on the Revolution in France:

You will observe, that from Magna Charta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specifically belonging to the people of this kingdom without any reference whatever to any more general or prior right. By this means our constitution preserves an unity so great a diversity of its parts. We have an inheritable crown; an inheritable peerage; and an house of commons and a people inheriting privileges, franchises, and liberties, from a long line of ancestors.

This policy appears top me to be the result of profound reflection; or rather the happy effect of following nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know, that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without an all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims, are locked fast as in a sort of family settlement; grasped in a kind of mortmain for ever. By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges, in the same manner in which we transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of Providence, are handed down, to us and from us, in the same course and order.

 

Each generation only has so long on this earth. People come and go. Officials of the government will only be in power for so long and even Sir Humphrey's time in office will eventually come to a close. What remain are institutions. Institutions transcend the actions of single human beings and survive through the ages as new people come in to fill the roles that are left as others leave. As the great Bard once wrote, “all the world's a stage/ and all the men and women merely players”; what matters to the people around us is less who we are than what we do and what role we decide to fill in society. Institutions provide the roles that people decide to play in their relation to others in society at large, and thus they help determine the course of human history.

The institutions that bind us are not creations of the human intellect. It may certainly be the case that they are the product of human action, but what single human mind designed the British monarchy? None and none could have. The British monarchy, like so many other institutions, is a product of a long line of people acting within it in reaction to a large variety of events and problems. Even the American Constitution was not written with the ideas of one human person, but was designed over the course of months in a gathering of many of the most talented lawyers in America at that time. More importantly, it was largely constituted by general rules of conduct that were already accepted as laws, important concepts like representative government and due process had centuries of previous history before being incorporated into the Constitution.

 

Only the worst look at society as a carte blanche upon which they can create their own vision of society. And only those who have drunken deep from the waters of the fatal conceit that man's mind can actually truly comprehend all the ties that hold society together think that it is possible for there even to be a coherent vision of society to write upon that blank check. The only sound political perspective, especially for actual governance, is one that consciously accepts the important of the institutions that we have inherited as the important engines of human affairs and that lets those institutions, with certainly marginal changes around the edges, set the course of state.

The Foreign Policy of Freedom

From William Ewart Gladstone's speech at West Cader on November 7^th 1879 as part of his Midlothian Campaign against Prime Minister Disraeli's government:

And that sixth (principle of foreign policy) is, that in my opinion foreign policy, subject to all the limitations that I have described, the foreign policy of England should always be inspired by the love of freedom. There should be a sympathy with freedom, a desire to give it scope, founded not upon visionary ideas, but upon the long experience of many generations within the shores of this happy isle, that in freedom you lay the firmest foundations both of loyalty and order; the firmest foundations for the development of individual character, and the best provision for the happiness of the nation at large. 

 

It is tempting to think merely in terms of national interests when it comes to foreign policy. After all, each nation has a scarce amount of resources at its disposal and ought not its principle guiding force be to advance the interests of its citizens? However, once we go down the rabbit-hole of national-interest politics then where do we end? At what point must national interests be sacrificed in order not to violate the moral prescriptions of virtue and propriety? The cold truth, though, is that whenever we speak in terms of national interests, we have put moral concerns aside and have come to foreign affairs as merely a technical problem, with the end (i.e. the national interests) given with the question now being what means must be employed to achieve those ends most efficiently.

A moral foreign policy cannot be one dictated by mere national interests. They are certainly important, but no nation is well served by officials willing to sacrifice foreigners at the parochial altar of national interests because there is then the threat that those officials will then be willing to act similarly against their own citizens. Plus, in the uncertain world of foreign affairs, it is often unclear how to advance national interests: the lines between friend a foe blur, the data of each situation are unknown, and even the mission itself is not entirely known. What can be in the national interest a year ago may have turned out to be conditioned on a mistaken appraisals of intelligence. We must have recourse to general rules then and the only general rules that action should be informed by in government are the rules dictated by justice.

 

Along with those rules comes a deep devotion to human liberty. Sadly American foreign policy motivated by the very same love of freedom that Gladstone speaks about has lead to unnecessary interventions, entangling alliances and the squandering of resources. Whether it be in Afghanistan, Iraq, or Libya, the honest love of freedom, among other things, has too often lead the United States into no-win situations it is too proud to simply leave.

However, it need not be that way and to understand why it need not be that way, we must understand that freedom is not just an abstract state of affairs, but rather a fruit of a society of law. Too often those who advocate freedom, whether in Gladstone's era or our own, advocate it as if it is a idea removed from the institutional specifics of society, as if it is something that simply has to be accepted rather than cultivated by law. However, if we take the writings of men from Edmund Burke to Friedrich Hayek to heart, what we must accept is that freedom is something that must emerge in each society by the proper functioning of laws. It is simply not something people can be liberated into for freedom without the rule of law will never sustain itself, but will collapse into chaos and faction.

A foreign policy of freedom, even though it is far more the claim of modern Libertarians than modern Conservatives, must still be a conservative foreign policy. The reason is that a free society does not simply come into being by the fiat of its rulers or by the fiat of foreign invaders, but by stable domestic institutions and by the rule of law. A tragic consideration that we must accept is that not all societies are ready to reap the fruits of liberty, whether this be for reason for a lack of the rule of law or maybe due to unstable institutions; liberty is as much a historical accident as conscious creation of the human mind. Any foreign policy that proclaims to be for freedom while at the same time destroying the institutions and rule of law that are its preconditions in foreign countries is no foreign policy of freedom, it is a foreign policy of tyranny which is bound to result from the conditions it causes in other countries.

 

A foreign policy of freedom must then be a policy of example and sympathy. It must be a policy of setting a virtuous and just example to other nations by showing how the conditions of freedom are a boon for the prosperity of the nation. It must be a policy of sympathy because no advocate for freedom within our modern and inter-connected world can stay silent as liberty in quashed in foreign parts of the world, but must be an active advocate willing to extend its sympathy across the world. However, prolonged engagements and entangling alliances do nothing to make possible the conditions of liberty in other countries, and as such they must be rejected.

 

The Skeptic as a Conservative

 The skeptic is a natural conservative. He is so because a conservative is someone who abhors innovations and who views human society as something that simply cannot be improved by human reason. To him, society is a creation of thousands of years of history, of the designs of millions of individuals and is held together by the fabric of traditional social institutions that have emerged in the process of history. What can the puny human mind manage to do other than inadvertently tear asunder those institutions and leave society worse off. Michel de Montaigne, a diligent student of Pyrrhonian skepticism, expressed this opinion in his essay I:23 “On habit: and on never easily changing a traditional law”:

And here is one drawn from a different barrel: it is greatly to be doubted whether any obvious good can come from changing any traditional law whatever it may be, compared with the evil of changing it; for a polity is like a building made of diverse pieces interlocked together, joined in such a way that is impossible to move one without the whole structure feeling it. He who gave the Thurians their laws ordained that if any man wished to abolish an ancient one or establish a new one he should appear before the people with a rope round his neck, so that he could be hanged at once if anyone failed to approve of his novelty.

 

Of course, when I write of conservatives here, I do not mean “Conservative” in the sense it has in modern American politics, though there are certainly plenty of shared traits. Instead, I mean it in the most literal, and perhaps original, sense of someone who simply views conserving the institutional structure of society as the best policy. The skeptic in turn who takes seriously that all judgment is fallible and that relies on other means of justifying human behavior other than ratiocination like tradition (a famous example of this is Sextus Empiricus' reliance of traditional remedies rather than on reasoned inquiries into the nature of medicine in his own practice as a physician).

Unlike many modern aberrations popular among high schoolers and undergraduate, skepticism does not lead the skeptic away from traditions; instead, it drives them closer. Like the conservative, the skeptic's doubts about the powers of human reason leads them down the road of the traditionalist. That which is is for a reason and what better can we know? When a man comes forward with a innovation to society, the skeptic is then common partner with the conservative in wanting to hang him at once as a threat to society. As Montaigne said:

To speak frankly, it seems to me that there is a great deal of self-love and arrogance in judging so highly of your opinions that you are obliged to disturb the public peace in order to establish them, thereby introducing these many unavoidable evils and that horrifying moral corruption which, in matters of great importance, civil wars and political upheavals bring in their wake – introducing them moreover into your country.

Thus the skeptic becomes a conservative with the rallying cry: we have the society that we have been given by history, it is our job not to mess it up.

 

It is only once we are able to esteem human reason and to save some of it from the skeptic's critique that we are able to step away from a pure traditionalist conservatism and begin to think about stepping away from a historical fatalist notion of society. If Hume's approach to whittle down the claims of reason through philosophical critique were able to leave nothing left, then human reason would be incapable of comprehending the maze of chains of cause and effect that are necessary to comprehend to even critique social institutions. After all, if the human mind is going to be able to create a better course for the evolution of institutions than history, it must be able to understand how institutions affect human action and how they guide people to take certain actions.

Any critique must in turn also have a normative standard for how human beings ought to act and to create that standard human reasons must understand successful patterns of human action. Hence any argument against conservatism must be able to raise human reason above the critiques of skepticism and show that it can construct standards for reform that break from the historical evolution of human institutions. If that is ever going to succeed, then the skeptical arguments against reason must be beaten back.

That human beings so often critique them with the claims of reason is evidence that skepticism is more often an exercise in philosophy rather than a serious approach and that critiques of social institutions are so often successful in their aims is evidence that human reason can understand well enough the concatenation of events in society contra the claims of skepticism.