Chilton Williamson, Jr.: After Tocqueville: The Promise and Failure of Democracy. Wilmington: ISI Books, 2012.

Originally published in Interpretation: A Journal of Political Philosophy. Volume 40, Number 1, Spring 2013.

 

Some twenty years before this book was published, Francis Fukuyama earned the distinction of publishing what became perhaps the most refuted American book of his generation. Thinly disguised as an exercise in German historicism (beginning with its evocation of Hegel and Nietzsche in the title) The End of History and the Last Man finally defends liberal democracy as the best practicable regime under modern circumstances in the name of the stubbornness, not the malleability, of human nature. In his central chapter, “The Beast with Red Cheeks,” Fukuyama insists on the stubbornness of stubbornness itself, identifying the crux of political life as thumos—the part of the soul that both wants to rule and needs to be ruled. Even the historicists, he insists inadvertently make ‘History’ dependent upon nature; in a witty reversal, he maintains in effect that he (thanks to Plato) understands historicists better than historicists understand themselves. Hegel’s defense of liberal republicanism institutionally crowned with constitutional monarchs requires a concept of a trans-historical human good. [1]

This defense of liberal democracy founded upon the nature of human beings is precisely what irks Chilton Williamson, who brings natural right and democracy to the bar of tradition and aristocracy. Like many traditionalists, he must answer the question: By what criteria do I select a given principle, thinker, or book for placement in ‘the tradition’?

This becomes clear as early as the preface. In it he cites Graham Robb’s The Discovery of France, an account of a young man’s journeys through the France of the 1990s in search of the remnants of the France of the 1780s and earlier—i.e., France before the French Revolution. By this means he studiously ignores the argument of Tocqueville—otherwise prominently featured—who famously maintained that the Bourbon monarchy and not the republicans or Bonaparte began the centralization of ‘modernization’ of the French state under the watchful eye of Cardinal Richelieu, that so-to-speak Catholic Machiavel. [2] In ignoring Tocqueville’s claim, Williamson can attribute the birth of statism in France to republicanism and democracy, rather than to monarchism or to the peculiar features of French aristocracy.

Williamson divides his book into three parts: “Democracy after Tocqueville,” “Democracy and Civilization,” and “The Future of Democracy and the End of History.” These parts consist of three, eight, and three chapters, respectively. In the first chapter he continues his uneasy relationship with Tocqueville, claiming incorrectly that “Tocqueville was ever at pains to remind himself, as well as readers of Democracy in America, that the subject of his book was American democracy, not democracy as a generalized system of government and society” (4). But quite on the contrary, Tocqueville writes, “I saw the equality of conditions that, without having reached its extreme limits as it had in the United States, was approaching them more each day; and the same democracy reigning in American societies appeared to me to be advancing rapidly toward power in Europe.” [3] And further, “I confess that in America I saw more than America; I sought there an image of democracy itself, of its penchants, its character, its prejudices, its passions; I wanted to become acquainted with it if only to know at least what we ought to hope or fear from it.” [4] Williamson further claims that Tocqueville saw democracy in America maintained by decentralization, religious faith, the civilization of the original colonizers, and their similarity of stock and of language, but Tocqueville there is talking about the republicanism of the Americans—their political institutions—not their social condition. Democracy defined as social equality or the absence of an aristocratic class might support either of two principal regimes: republicanism or despotism. When Fukuyama calls the liberal-democratic regime the “end of history” he means broadly the same kind of commercial-republican regime advocated by the American Founders. It was surely not Fukuyama “who popularized the neo-conservative mantra that democracies do not make war on one another and that universal peace has consequently become, for the first time in history, something more than a fanciful vision” (6). The idea that commercial republics don’t make war on one another dates back at least as far as Montesquieu; among the Americans, Franklin, Washington, and Madison concurred, leaving only Hamilton in Federalist #6 to demur (with a sophistical argument in hand, it should be noted). [5]

None of these scholarly complaints should be allowed to obscure Williamson’s main point in this opening chapter. “For Alexis de Tocqueville, democracy was a political phenomenon, not a faith” (13). Tocqueville (who detested Hegel for his historical determinism) did not suppose that Providence brought republicanism as democracy’s inevitable companion, and that is what Williamson quite rightly wants to say, too. He makes this clear in his second chapter, “The Momentum of Monarchy,” where he classifies Tocqueville among the “aristocratic liberals” (they include Mill, Burckhardt, and Bagehot) who searched for ways to defend liberty in the increasingly democratized social order of the nineteenth century. “Aristocratic liberalism envisioned a society that would be at once free, ordered, and, in the classical European sense of the word, civilized” (34). Just so, though in tracing the origins of aristocratic liberalism to Machiavelli, Williamson overlooks the facts that Machiavelli was no friend of the aristocracy, no classical humanist, and no Christian. Virtù is not exactly virtue. And his centralized state—lo stato—leaves no room for such social and parliamentary middlemen as aristocrats and priests independent of prince or parliament. [6]

In chapter 3, “Democracy’s Forked Road,” Williamson offers a non-Tocquevillian account of democracy as “the rival of Christianity and inherently its enemy” (38). Whereas “Tocqueville thought that the Christian religion and Christian civilization, taken together (and, as far as the thing is possible, separately) constitute the ground for democratic government and the necessary condition for its success,” Williamson maintains that the decline of Roman Catholicism and the rise of Protestant churches oriented toward nations and (to some degree) controlled by states turned Christianity toward a secularism inflected by “the new Promethean science”—effectively a God-substitute (38-45). In the United States, nationalism played out in “Jefferson’s unconstitutional Louisiana Purchase…[which] has been called the death knell of republicanism,” a sound issuing from a bell which continued to toll through the Mexican War, “the War between the States” (by which he apparently means the American Civil War), Progressivism, and the two World Wars (41, 54-55). Today, gripped by “a kind of nationalist mania,” America is neither democratic nor republican” (63). Its rapid democratization in the years after the War of Independence caused it to abandon the Founders’ attempt to establish a republican regime, before the nation-statism produced by that democratization wrecked democracy itself.

What is today’s American regime, then? Williamson begins Part II, “Democracy and Civilization,” by arguing that the two contradict one another. Republicanism requires a “middle-class society founded on an agrarian tradition that does not hold one man’s living at the expense of another man” in a “small-scale community” characterized “by minimum government” by “the consent of the governed” and whose governors are morally and intellectually prominent people”—not at all the Madisonian “extended republic.” [7] Republicanism comports with civilization (77). But the “modern liberal state is identical with the managerial society” described by James Burnham in his 1941 book The Managerial Revolution. This bureaucratic form of government has since been replaced by the even more radical “advanced liberalism” consisting of the self-deification of man and particularly of those men who most successfully pursue the power to remake human societies and their moralities (79). We thus incline toward proletarianized, ethnically mongrelized societies ruled by “statocrats.” Tocqueville “never imagined the rise in America of an activist ideological minority, similar to the French revolutionary class, devoted exclusively to the radical destruction of existing social and political institutions and standing above the mass of the people, whose sole desire is to be left in peace to make more money and acquire more comforts for themselves and whose reluctant and sporadic political involvement is mainly a reaction against government’s intrusions on free commercial activity” (97).

But as a matter of fact Tocqueville did imagine more or less exactly such a thing, regarding it as one of the several wrong turns democracy might very well take. In volume 2, part 4, chapter 6 of the Democracy, “What Kind of Despotism Democratic Nations Have to Fear,” Tocqueville describes “a herd of timid and industrious animals of which the government”—”a vast tutelary power”—”is the shepherd.” What is more, “The vices of those who govern and the imbecility of the governed would not be slow to bring it to ruin; and the people, tired of their representatives and themselves, would create freer institutions or soon return to lying at the feet of a single master.” [8] America’s realization of Tocqueville’s dystopia leads Williamson to his central and most valuable chapters: “The Business of Aristocracies” and “Christianity: Vital Spot.”

Whatever one might say of America, the business of aristocracies is most assuredly not business. Williamson regards “Thomistic civilization,” with its blend of “Aristotelian principles” animating “government whose aims was human excellence” and “Christian principles,” as the “presumed ideal” of the old European aristocracy (99). He contrasts Fukuyama’s characteristically modern view, “that the achievement of political and social liberty and economic affluence are the highest aim and responsibility of government” (99). He readily concedes that the classical-Christian ideal was not the real, although he does not admit that the modern ideal has been substantially realized—denying, for example, that human beings now enjoy more political or social liberty than they did under the old regime. But he has a more sublte point to make: Yes, the titled aristocratis were not Aristotelian (or Jeffersonian) a natural aristoi—”aristocrats have not ordinarily been associated with such mental achievement” as “serious intellectual or artistic accomplishment.” But they “have usually proved more or less apt at preserving tradition and maintaining ideals” (107). The problem with modern plutocrats and bureaucrats (“meritocracy’s two faces”) is that they fail to inculcate the heritage of civilization upon which any civitas —whatever its characteristic political regime—depends. Democracy cannot survive without certain intellectual and moral virtues, but modern democratic capitalism wastes the cultural “capital” it did not and cannot produce by itself (108). In America, “whatever one’s opinion of the old [untitled] WASP aristocracy—its culture, values, and ideas—it succeeded for three and a half centuries in preserving and transmitting the tradition that formed it, while exercising an ethic of civic responsibility and noblesse oblige in a society lacking a titled nobility” (108). By contrast, meritocracy “enjoys power and wealth without the corresponding responsibilities that aristocracy and membership in an establishment entail” (110). Aristocracy requires landed wealth—the habits of cultivation not only in the agricultural but in the cultural sense—and this is “impossible in modern capitalist-industrialist societies” (111). This means that “aristocracy is dead forever in the developed world—unless, somehow, modern democracy should prove itself capable of developing during the next century or two, a postindustrial form of aristocracy from the crude materials provided by the plutocratic meritocracy that presently rules it.” “The odds are long against it,” he estimates (112).

Aristocracy hands down culture in the Aristotelian sense of the cultivation of human excellence. Williamson emphasizes that by culture he also means cultus—”religion is a culture,” a set of practices, habits—a way of life marked out by God, not man. But modern state-builders like Henry VIII and the Bourbons wrench that form of civilization into the service of the modern state, as did the Lutherans further east. Following their lead, “seventeenth-century liberalism scarcely concealed its rationalist bias, and liberalism in the eighteenth century flaunted its anti-Christian and anti-monarchical prejudice” (113). The European and American liberals and socialists of today hate “Christianity and its satellite institutions because they represent metaphysical reality which leftists have always despised, denied, and labored tirelessly to overthrow, for the purpose of supplanting it with a synthetic version of their own construction ” (115). Insofar as it really has created such a comprehensive, artificial ‘reality,’ the Left has given us democracy not simply as a social condition or even as a regime but as an ideology —a “false religion” (115). Scarcely better, the modern “political Right” offers Americans “a fusion of small-government-in-theory-and-big-government-in-practice with an aggressive nationalism that is contradicted, theoretically and in fact, by its commitment to global democratization” (116). “The problem with ideological democracy is that democracy is a form of politics, and politics can never be wholly separated from religion.” Any self-consciously invented religion that rigorously separates politics from religions that are “given” rather than professedly invented and then claims for itself exclusive legitimacy as the moral compass of a centralized state will fail to convince even its own proponents, as Václav Havel has reminded us. This may lead to nihilism or to nihilism’s twin, utopianism. Utopianism is finally unbelievable, aiming at “a world without conflict and therefore without politics, which is essentially conflictual” (117)—as seen in the mixed-regime republicanism upheld by “classical political philosophy” (125). So-called postmodern utopianism must collapse of its own unbearable weightlessness, all the while denying that foundations really exist.

Williamson rejects any republicanism founded upon the principles of natural right. Although liberals claim (or have in the past claimed) that they intend to realize and ensure “the natural rights of mankind,” these have served instead as a mask for their atheism (119). The putatively natural right to religious freedom has itself begun to lose its status as a right: “The new democratic state is its own god, and that god is a jealous god” (120). Along with religion, “The Western world has banished classical political philosophy from its intellectual precincts, and modern—democratic—man regards himself as a fully autonomous being, endowed with no fixed nature that he may not alter to suit himself and no fixed role to play in the world. He is, instead, a world unto himself.” (125)  But in “traditional Christianity” under the old aristocracy, “human dignity” derives from “the divine spark each person carries within himself and to his place in the hierarchical chain of being. Such a creature has no need of ‘rights’ or of ‘freedom,’ though certain liberties, recognized over the centuries by both the church and the state, are certainly appropriate to his nature” (123). Such regimes of Christian love contrast fundamentally with modern statism: “Democracy, to succeed, must be more than self-government. It must be the love of self-government, inducing an affection even for government itself. Yet the greater and more expansive government produced by that affection and by engendered trust, in the end produces love’s opposite—hatred of government, and the refusal to cooperate with or tolerate it. There may be no way around this fundamental paradox of the democratic system.” (153)  Jesus of Nazareth understood this: “Christ himself appears to have limited His audiences to five thousand people, while saving His choicest teachings for private discussions with the Twelve” (140. When it comes to the important things, government small enough to sustain personal relations works best for, well, persons. Such government cannot sustain itself under the modern state, especially in its more recent forms. The ideology of progressivism (especially as exercised by the judiciary), with its claim to speak for large and impersonal historical forces; reliance upon information technology (which has not “raised the level of human wisdom in any appreciable degree” [174]); and the Faustian ambition to impose control over nature, including human nature—all result in a decline in prudential reasoning and in “the entrustment of the all-powerful state with sole discretion to determine moral value, which in turn becomes purely a matter of efficiency” (180). Against such a self-divinizing entity, natural right—with its leveling inclination to declare all men equal—is not merely a weak barrier but a wide patch along the road to serfdom. (Or it would be, if modern serfs still enjoyed a personal relationship with the lords of the manor.)

In Part III, “the Future of Democracy and the End of History,” Williamson foresees a rather different world than the one proferred by Fukuyama. He predicts “an age of extreme global instability that will impose a radical need for enhanced political and social order at the national and international level; a need that the eroding institution of the nation-state, to say nothing of ‘democracy,’ will be hard pressed to meet” (196). Already, the trend toward liberal democracy seen by Fukuyama has halted, as many societies neither especially want it nor find themselves capable of governing themselves by it. This is not surprising, if democracy is incoherent to begin with. Founded “on an illusory concept of metaphysics, human nature the essence of the good, and the nature of evil,” the latest version of liberalism—an unstable combination of progressivism and ‘postmodern’ moral relativism, not to say nihilism—simply cannot do what it most wants to do: rule (219). But democracy suffers less from contradictions—as Marx asserted—than from entropy. “Hedonistic, selfish, and narcissistic,” modern human beings can no longer muster anything more than the passive resistance born of resentment; their disillusionment with the modern project in its latter-day form makes the prospects for continued social order uncertain. “Whatever democracy is,” Williamson concludes, “there is likely to be a great deal less of it in the decades and centuries to come” (229). We now live after Tocqueville; after the democratic tendency of modern life has crested, and long after his well-intended cures—the guiding aristocratic prudence, federalism sustaining genuinely political life on all levels of government, civil and political association standing between local communities and the centralized state—have failed.

Williamson thus gives not a rigorous, scholarly account of Tocqueville or a philosophic analysis of the modernity Tocqueville considered as a well-crafted expression of an aristocratic sensibility responding to and often recoiling from the atheism and egalitarianism that prevail in large swathes of today’s world. Like Nietzsche’s aristocrats, he prefers not to argue but to exemplify, judge, and ‘carry on.’ Like most men of sensibility he prefers not to define things so much as to perceive and to appreciate their refinement. Definition would introduce too much abstraction into the nuanced richness of social life and its subtle gradations of rule. As against the simplification introduced by Kantian categories of rights, Williamson upholds traditional (by which he means Catholic, not Orthodox and surely not Protestant) Christianity, going so far as to claim (following Russell Kirk) that the American Founders “did not really believe their own rhetorical flourishes” in the Declaration of Independence, “the intent of which was to impress a world skeptical of the American colonists’ intentions” (174). [9]

Kirk’s claim is insupportable. True enough, the Declaration appeals to “a candid world,” very much including the French monarchy that would intervene military with considerable effect in the War of Independence. But with the exception of Franklin, every important Founder consistently referred to natural rights as the standard for civil rights within the modern state. [10] This can and has been demonstrated at length, although the best demonstration remains reading their writings for oneself.

The problem of the centralized and potentially overbearing modern state requires another definition distinction that Williamson doesn’t quite get right—that between state and regime. In the Aristotelian terms that Williamson and many of us esteem, the regime or politeia consists of four elements: the politeia strictly speaking, which consists of the ruling institutions of the political community; the politeuma or ruling body, consisting of the persons who rule that community; the bios ti, the way of life of the community; and the end, the telos, the institutions, rulers, and way of life serve. [11]  This definition enables Aristotle to offer his well-known regime typology, which includes the regime itself called ‘regime’ or politeia—the ‘mixed regime’ that balances the rule of the few who are rich and the many who are poor. This is the republicanism Williamson esteems—with the caveat that the wealth of the rich be landed, entailing active, prudential, patient care of the soil and the soul and vigilant protection of the persons who work it. As Williamson also stipulates, and as Aristotle remarks, such a regime supports a substantial middle class.

Distinct from the idea of the regime, the idea of the state classifies political communities in terms of their size and degree of centralization. The ancient poleis that Aristotle describes were small in size but centralized; even the regimes with the largest ruling bodies—the mixed regimes and democracies—could fit their rulers into one place at one time in order to deliberate on public concerns. The vast empires Aristotle also saw but did not describe were large in size but decentralized—precursors of the federal states. The feudal monarchies and aristocracies of medieval Europe ruled territories and populations somewhere between those of the ancient poleis and empires but were as decentralized as the latter. The ‘modern’ or Machiavellian state which Williamson excoriates combines impressive size with centralization made possible by bureaucracies staffed by ‘meritocrats’ rather than by landed aristocrats; notice that ‘regime’ and ‘state’ overlap here because no matter what its formal regime the modern state needs bureaucrats trained in a modes sort of virtuosity: efficiency.

Under these modern conditions, the assertion of natural rights makes a good deal of sense. The Declaration of Independence—no mere series of rhetorical flourishes but a logical syllogism in which Creator-endowed and unalienable rights form a major premise—denounced as art of the British tyranny the regime’s attempt to make the empire into a centralized Machiavellian state, the kind of entity that sends swarms of tax collectors to eat out the substance of the republican middle classes.

To this line of argument, Williamson wants to reply: Yes, but the very condition is what I reject—the condition of modern statism and its social foundation, social egalitarianism or democracy. This cri de coeur begs the indispensable question Williamson does not address, namely, the arguable necessity of the modern state, given both the preexisting tendency away from aristocracy and towards social equality and the human fact of warfare, at which aristocrats had long excelled. Once the modern state had proved itself superior to the feudal ‘state’ at raising troops and money to equip them, the decentralized and aristocratic feudal communities were finished. A student of Aristotle might observe with irony that by ignoring the fact of warfare Williamson commits the mistake Aristotle identifies in the thought of Phaleas of Chalcedon, a utopian democrat. [12]

Consideration of war seldom intrudes itself into Williamson’s book, except as an instrument of democratic-nationalist madness or folly. But the very Machiavelli whom Williamson lauds bases his argument upon exactly the requirements of warfare. Christianity—for example, the Catholic Christianity of Pope Julius II and others—worships the Prince of Peace. But the prince who guides himself by Christian principles walks the path to ruin, not salvation. Accordingly, Machiavelli’s prince studies the art of war. The lion and the fox share one salient feature in this regard: They are predators. Once organized (and as Machiavelli foresees) lo stato will destroy the remaining small poleis and feudalism Machiavelli’s state will rival the feudal communities in size yet enjoy centralized rule seen previously only in the polis. Eschewing Christian and Aristotelian virtues alike for virtù, the new statesmen will defeat the old priests and aristocrats, and the new state will defeat the older forms of state. Aristocrats had been the warriors and the priests had been the ones who appealed to God for protection and victory in war; the political authority of such men rested in part upon their claim to protect the people they ruled. By 1776 the modern state had defeated the old regimes and the old states at a crucial part of their own game, even as the Americans were defeating the aristocratic warrior-Indians. [13]  Any attempt to rescue modern life from Machiavellianism must address the question of war. Washington did, as did Publius. But Williamson merely deplores it.

This also points to another lacuna in Williamson’s presentation. Despite his insistence on the importance of religion to any decent political community, and his preference for the Christian Aristotelianism of Thomas as the best theology, Williamson does not acknowledge Tocqueville’s claim that Christianity itself served as the architectonic principle, the forming origin of Christianity. [14]  Only by fully confronting the theological-political question as posed by Machiavelli and (in a different way) by Tocqueville could one begin to form a countervailing strategy against the malign effect of Machiavellianism in principle and in practice. For that task, a noble and humble traditionalism can get us only so far.

 

Notes

1. Francis Fukuyama: The End of History and the Last Man (New York: HarperCollins, 1992), esp. 145-152 and 171-180.
2. Alexis de Tocqueville: The Old Regime and the Revolution, Alan S. Kahan translation (Chicago: University of Chicago Press, 1998), Book 2, chapter 2.
3. Alexis de Tocqueville: Democracy in America, Harvey C. Mansfield and Delba Winthrop translation (Chicago: University of Chicago Press, 2000), 3.
4. Ibid., 13.
5. For discussion see Will Morrisey: A Political Approach to Pacifism (Lewiston, NY: The Edwin Mellen Press, 1996), 1: 6-14. Briefly, Hamilton argues that commercial republics will fight with one another because countries that have commerce with one another fight and countries that are republics fight: an obvious instance of the fallacy of composition. One may respect Hamilton’s intelligence too much not to suppose that he knew what he was doing, namely, deploying superficially plausible rhetoric in his effort to strengthen the federal union.
6. See Niccolò Machiavelli: The Prince, comparing chapters 2 and 9; for commentary see Harvey C. Mansfield: Machiavelli’s Virtue (Chicago: University of Chicago Press, 1996), chapter 12.
7. Indeed, Williamson asserts, the America of the Articles of Confederation was already far too big to sustain genuine republicanism (94-95).
8. Tocqueville, Democracy in America, op. cit., 663, 665. For an extended, learned recent meditation on Tocqueville’s argument, see Paul Rahe: Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect (New Haven: Yale University Press, 2009), which Williamson himself cites later (215).
9. See Russell Kirk: The Conservative Mind (Chicago: Regnery Press, 1960),82-83; Russell Kirk: “Introduction,” in Robert Jay Nock: Mr. Jefferson (Delavan, Wisconsin: Hallberg Press, 1983).
10. On Franklin see Jerry Weinberger: Benjamin Franklin Unmasked: On the Unity of His Moral, Religious and Political Thought (Lawrence: University Press of Kansas, 2005), 226-227, 232-234, 265; Lorraine Pangle: The Political Philosophy of Benjamin Franklin (Baltimore: The Johns Hopkins University Press, 2007), 140-148. On the Founders generally, see Thomas G. West: Vindicating the Founders: Race, Sex, Class and Justice in the Origins of America (Lanham: Rowman & Littlefield, 1997); Michael P. Zuckert: Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994). On Madison, see Colleen A. Sheehan: James Madison and the Spirit of Republican Self-Government (Cambridge: Cambridge University Press, 2009), 83, 142, 153 (this last, incidentally, on the Declaration of Independence, as well).
11. Aristotle: Politics 1275b35-42, 1275a22-32, 1275b18-20, 1276b1-15, 1278b8-12, 1279a23-40, 1279b1-5, 1323a14-23.
12. Ibid., 1267a16-36.
13. Tocqueville, Democracy in America, op. cit., 314.
14. Ibid., 11.

The Fourteenth Amendment, Section I: “No State shall make or enforce an law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor dey to any person within its jurisdiction the equal protection of the laws.”

Originally published by Constituting America, April 27, 2012.

 

What is “due process of law”?

Enacted in 1868, the Fourteenth Amendment numbers among the ‘Civil War amendments’—those aimed at settling the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why would the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteen Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: The phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implementing by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize–themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to replay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice.) The ‘bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad. Those who deprive their fellow human beings of their lives, liberties, or property justly lose their own property, liberties, or lives.

How do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged by punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must ‘make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly speaking due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process hold that Congress and (with the Fourteenth Amendment) the state legislatures may not pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. Advocates of substantive due process worried that citizens might be afforded all proper legal procedures but still end up injured by getting on the wrong side of an unjust law.

However, the assertion of substantive due process itself causes a serious dilemma. It returns the country to the original problem that due process was intended to solve: the need to do injury —to violate the natural and civil rights of those who violate the natural and civil rights of others. If legislatures cannot secure the rights of the good by enacting laws that injure or ‘correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused this new problem, the Supreme Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood ‘substantively’ and not just ‘procedurally.’

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but at the expense of intensifying the problem of American self-government. In practice, the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected ‘constitutional rights.’ It has done so by making a second move, widening the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision, in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty. This has proved an expansive and ill-defined emanation, indeed. The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. Now the judges exercise it, too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the Founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.