Oliver Dyer: Great Senators of the United States of Forty Years Ago. New York: Robert Bonner’s Sons, 1889.

Originally published by Constituting America, July 2018. Republished with permission.

 

Congressional representatives today understand their duties quite differently than did their counterparts at the turn of the last century. A lawmaking institution whose members consulted the Constitution and, behind it, the natural rights enunciated in the Declaration of Independence, Congress has become a constituent-service institution which attempt to oversee and negotiate with the bureaucratic apparatus of a massive national state. To be sure, it still debates and enacts laws, but very often leaves the initiative in formulating those laws to the President, and leaves the details of those laws to the administrative agencies which enforce them, agencies which collectively amount to a fourth branch of government, and an unelected one at that. Given the re-conception of the Constitution as a ‘living’ or ‘elastic’ document, those laws may have only a remote connection to the plain meaning of the (formerly) supreme law of the land.

It has become difficult for us even to conceive of the way Congress once operated, and indeed of how American politics and government generally once operated. For this, we need to turn to an eyewitness, and as luck would have it, we have one.

At the age of twenty-four, a future newspaper reporter and editor, recently a schoolteacher in the Erie Canal town of Lockport, New York, met and took the measure of the most distinguished cohort of United States senators in our history as those men attempted to navigate the American Union around the most dangerous regime crisis since the American Revolution itself. Thomas Jefferson had predicted that the presence of slaves in the land of the free was “the rock upon which the old Union would split,” and that rock sat only slightly beneath the surface when Oliver Dyer arrived for work at the Senate for the session of 1848-49.

The Mexican War had just concluded, and new territories wrested from Mexico, including California, had been annexed. The plantation oligarchs who controlled the governments of the Southern states had seen that only the acquisition of new territories and ultimately the addition of new states in which slavery was legal, would protect their ‘peculiar institution’ (and thereby their political power) from the solidly anti-slavery Northern states, which were outpacing the South in population and industrial wealth. With the popularly-based House of Representatives firmly in Northern hands, and like to remain so, the Senate, its membership unaffected by population shift, stood as the oligarchs’ best power base for defending their regimes and even extending their influence in the federal government. As Dyer writes, “It was the fixed policy of the South to keep the free States from outnumbering the slave states.”

With the slaveholding James K. Polk of Tennessee in the White House, “the war was forced on for the purpose of acquiring territory into which slavery could be extended.” But the bill appropriating funds for fighting the war had a rider attached by Pennsylvania Democratic House member David Wilmot of Pennsylvania, stipulating that no territories acquired from Mexico would allow slavery. This “greatly embittered and exasperated the South,” “for it struck at the very life of slavery, inasmuch as to limit slavery was to strangle it.” The Wilmot Proviso eventually “was killed in Congress,” but “it survived in the country,” and Dyer now knew as he wrote his memoir in 1889, the regime struggle between Southern oligarchic regimes and Northern republican regimes would end only at Appomattox or, more accurately, only with the post-Civil War attempt at ‘Reconstruction’ or regime change in the South by the triumphant republicans.

As early as the 1830s, genuinely factional political parties had begun to arise in the United States. The Founders had hoped to avoid the formation of such parties, parties organized not merely around various local interests and divergent national policies, but the fundamental issue of what kind of political regime the United States should have. The Founders had hoped that they had settled this matter: The United States was to be a democratic and commercial republic. But as the invention of the cotton gin made slaveholding more profitable, Southern plantation owners consolidated oligarchic instead of republican regimes in their states. The struggle between democratically-based republicanism and slaveholder-based oligarchy commenced.

The struggle began within the Democratic Party. Although a slaveholder, Andrew Jackson based his electoral successes in 1828 and 1832 squarely on a popular base. The Democratic Party he established, with the help of his Northern ally, the brilliant political organizer Martin Van Buren, was indeed a democratic party. Opposing him, however, was an even greater organizer and far superior political theoretician, South Carolina Senator John C. Calhoun. Explicitly rejecting the moral foundation of American republicanism as enunciated in the Declaration of Independence—the equal, unalienable rights to life, liberty, and the pursuit of happiness held by all human beings as such—Calhoun instead maintained that the laws of nature and of nature’s God ordained a racial hierarchy entitling plantation oligarchs to rule African slaves without their consent.

Opposing both Jacksonian mass democracy and Calhounian oligarchy, the Whig Party formed in the 1830s out of the remnants of the old, long-defunct Federalist Party, John Quincy Adams’s anti-slavery National Republican Party, and even the short-lived Anti-Masonic Party, which had suspected the secretive Freemasons of conspiring against republicanism. The Whigs wanted to maintain Constitutional safeguards on undiluted majority rule, opposing the extension of slavery into the territories, supported a national banking system as well as interstate railroads and canals, to be funded by protective tariffs which would also defend newly-founded American industries against foreign competition. Whereas the Democrats, still the majority of American voters, found themselves split between Jacksonian republicans and Calhounian oligarchs or ‘aristocratic republicans,’ the Whig coalition had stayed sufficiently unified to elect William Henry Harrison to the presidency in 1840.

The party system had a function that we today might easily overlook. Today, we are accustomed to seeing the administrative tasks of government performed by university-trained professional administrators. But throughout the nineteenth century there was no such class in the United States; professional bureaucrats were a European phenomenon. Who, then, did the administrative work of government in those days? None other than the political parties. Each newly-elected president would appoint ‘his’ partisan supporters to the government, from Cabinet officers down to local postmasters. With so many jobs at stake, interest in election ran very high. With the dangerous and impassioned debate over the character of the American regime on one hand, and the material interest in who would find comfortable and prestigious work on the other, no one complained of political apathy in Oliver Dyer’s Washington.

Son of a shoemaker, Dyer learned a more promising trade, studying shorthand stenography–what its inventor, the Englishman Isaac Pitman, called “Sound-Hand” in a widely distributed 1837 pamphlet. (You listen to a “sound”—a speaker’s voice—then hand-write what he says in an abbreviated code which allows you to keep up with even a fast-talking Congressman.) Adding some improvements of his own, Dyer marketed the Pitman System to schools and quickly caught the attention of upstate New York politicians, who arranged for him to serve as a recorder for both the Whig Party’s and the anti-slavery Free Soil Party’s conventions of 1848.

There young Dyer learned the ‘low’ side of politics, the politics of party insiders and wire-pullers. He begins his memoir with an account of how the Albany-based Whig Party boss—the marvelously-named Thurlow Weed—teamed with his protégé William Seward to manipulate delegates into nominating Mexican War general Zachary Taylor over the celebrated Kentucky Senator Henry Clay—adding, in the bargain, another Weed man, Millard Fillmore, to the ticket. For good measure, Weed then extended a tentacle into the Free Soil Party convention (held on his home turf in upstate New York), arranging the nomination of former President Martin Van Buren. With the erstwhile Democrat Van Buren drawing votes away from Democratic Party nominee Lewis Cass (a “dull, phlegmatic, lymphatic, lazy” Michigan senator “without an atom of magnetism in his nature,” allied with the Calhoun Democrats), Weed’s beneficiary Taylor carried New York and with it the nation. Poor Clay never knew what hit him, but Dyer did.

Dyer explains “the secret of [Thurlow Weed’s] political power” under the old party-based system of American politics. Newspapers at that time were owned and operated by political parties and Weed controlled the Albany Evening Journal. Albany was more important than New York City, not only because it was the state capital but because Manhattan Island was icebound in winter; astonishingly to us today, there were no railroad lines running out of Manhattan whereas politically-connected Albany had them. Weed wrote a regular column in his newspaper, making strategic mention of his political friends and foes alike as he kept the lines of communications open between himself and New York Whigs. “There was seldom a young man in any part of the State, who gave promise of becoming a person of influence, that was not kindly and flatteringly mentioned in that column, no matter to what party he belonged. And does any one suppose that young men thus mentioned would not feel friendly to Thurlow Weed, and be ready to do him a personal favor?” Indeed so: “Mr. Weed’s kindness, shown at a time when the young man feels the need of a friend, sinks into the depths of his heart and brings forth fruit abundantly. “This beneficence toward the young, who “are perpetually coming on” the stage as “the old are constantly passing off,” extended not only to his fellow Whigs but to young Democrats, as well. But much more than this, Weed proved a supremely artful political boss, ruling not by command but by influence. After all he controlled the elected officials who controlled the distribution of jobs. As another young man, Henry Adams, had occasion to observe some years later Mr. Weed was an entirely unselfish man in one way: He gave but he never took, arrangeing employment and expecting not mere lucre but only political gratitude in return.

His reportorial credentials and political alliances thus established, it is no wonder that Oliver Dyer found himself on the floor of the United States Senate in December 1848, recording the speeches of John C. Calhoun, Thomas Hart Benton of Missouri, Daniel Webster of Massachusetts, and of Henry Clay himself—the man Abraham Lincoln would call “my beau ideal of a statesman.” From well-played ‘low’ politics to the very high: For the next year Dyer received the best political education of any future journalist of his generation, and maybe of any generation in America. He sketches portraits of all these men, and of several other Senate eminences besides.

He begins with Sam Houston from the newly-admitted state of Texas, “about whose name more romance clustered at that time than encircled the name of any other citizen.” Governor of Tennessee at the age of 34, then self-exiled to Cherokee territory where he “liv[ed] in barbaric dignity” for a short time before capturing Mexican general Santa Anna during the Texas War of Independence rising to the presidency of the Republic of Texas, and then to election, as senator in 1845, Houston had been Dyer’s hero as a boy in Lockport. “As we children on the Niagara frontier were brought up to hate the British, wild beasts, Indians, and foes of every kind whatosoever, and were taught to believe in the good old-fashioned fire and brimstone, hell, and in cognate Scripture tenets, undiluted with any revisionary Sheol or Hades, I suppose that our militant religion had a robustness and an edge which are impossible to the faith of boys brought up on the humanitarianism and the diluted theology of the present day. At any rate, we all prayed fervently to God to avenge Travis, Crockett and Bowie,” who had died at the Alamo at the hands of the Mexicans. So much so, that “Twenty-four boys, of which I was one, formed a company to march down and ravage Mexico; but news of Houston’s defeat and capture of Santa Anna at San Jacinto came in time to save that ill-fated republic from the impending invasion.” “We were simple people who believed in God and loved heroes who won battles in accordance with our prayers; and from that time General Sam Houston was set in our hearts alongside Jackson and Washington.” Nor did Senator Houston disappoint his admirer. Although his experience with Whig and Free Soil Party politicians “had rather chilled my expectations as to all sorts of heroes,” Houston proved “a magnificent barbarian, somewhat tempered by civilization.” True, his “wild life” had “unfitted him for civilization,” so that he “was not a man to shine in a deliberative assembly,” but Dyer found him “a sincere lover of his country,” “indomitably patriotic” standing “firm by the Union to the day of his death” in 1863.

An anti-slavery Union man himself, Dyer first found Senator Calhoun “to be a perfect image and embodiment of the devil,” with the “inner complexion of a dark soul shining through the skin of his face.” But upon hearing Calhoun speak, he reconsidered. In debate, Calhoun maintained “his dignified demeanor and exquisite courtesy to the end” under the slashing attacks of Senator Benton, the unbending foe of the Calhounite principle of states’ rights and even secession in the defense of slaveholding. As was his wont, Calhoun took the time to explain his political principles to the earnest young Yankee; prudent attentiveness to the young was not the monopoly of Mr. Weed. Dyer faithfully recalls Calhoun’s argument, which hinged on his claim that each state within the United States is “a sovereign state,” inalienably so, with natural rights placed “in the hearts and minds of individual freemen.” Dyer does not call the reader’s attention to the distinction between ‘freemen” and the Declaration of Independence’s “all men,” as Senator Calhoun surely did not. “As I became better acquainted with Calhoun, I like him better. At last, I had a genuine affection for him, and mourned over what seemed to me to have been his political decadence; and I have mourned over it to this hour.” Dyer learned from Calhoun—who had forgiven his bitter rival, Jackson—”to distinguish between a man’s principles and his personal character, and there developed in me a disposition to extend to the convictions and conduct of others the same forbearance and charity which every man likes to have accorded to his own conduct and convictions.” This does not cause him to omit quoting a speech Calhoun had made years earlier, in which he averred that although “many in the South once believed that [slavery] was a moral and political evil,” “we [now] see it in its true light, and regard it as the most safe and stable basis for free institutions in the world.” The regime issue had been joined, with men of outstanding character and ability on both sides.

In Thomas Hart Benton, Calhoun had “a bitter and relentless foe,” as well as a formidable one. “It would be difficult to find two other contemporary Americans, of equal distinction, so absolutely contrasted in body, mind principles, tastes and manners as were Benton and Calhoun.” “To rub Calhoun’s nature”—physically slender theorizing, gentlemanly—”against Benton’s”—physically massive, practical, tough to the point of ruthlessness—”was like rubbing the tender skin of an infant against the corrugated hide of a rhinoceros.” Indeed, this “Roman gladiator who somehow had become embedded in the nineteenth century,” this “robust and ferocious Christian,” had a servant scrape his body daily with “the roughest kind of horsehair brush,” callousing his skin and toughening his mind for political combat. (“The Roman gladiators did it, sir”—the word “sir being a formidable missile on his tongue.”) Benton’s “egoism was so vast, so towering, so part and parcel of the man, that it was not at all offensive and never excited disgust,” being “as proper to him as its apex is to a pyramid.” The “old ironclad” loved the things that were his own: his country (hence his hatred of Calhoun who wouldn’t have minded breaking it up) and his family above all. Her mind broken by a stroke, Mrs. Benton once appeared unexpectedly at a a reception held in their home for a French prince; Benton took her by the hand seated her beside him, and carried on the conversation “with that impressive dignity in which it is doubtful if he had an equal.” When asked if he would obey protocol and kneel before the Czar of Russia, he stood on his republican dignity: “No sir! No sir! An American kneels only to God and woman, sir.” Unlike Calhoun, “he was a staunch friend of the poor—of poor blacks, as well as poor whites,” and when in the Tennessee legislature he introduced a bill providing jury trials for slaves.

The aristocratic Calhoun and the democratic warrior Benton found their complement in Henry Clay, a man of “good nature” and “inborn democratic republicanism.” With his photographic memory for persons, names, and places, Clay made any stranger—however humble in station—feel “at once at home with the affable and cordial Kentuckian.” In floor debate, Calhoun drew his listeners to him with his high-mindedness; Benton drew them into an ego so capaciously American as to make them want to join with it. Clay “spoke to an audience very much as an ardent lover speaks to his sweetheart when pleading for her hand.” As Clay’s recorder, Dyer saw that “the more successful a lover’s speech is on such an occasion, the less readable it is when it gets into cold print,” but Clay carried his fellow senators along with “his hearty and sympathetic spirit of fellowship”—the sort that, he hoped, might pervade his beloved Union. Clay loved commerce, industry, and hard work not out of love of profit but love of country. “Clay was poor—poor notwithstanding his thirty-five years of public service; for he was not one of those statesmen who, on a five-thousand-dollar salary, manage to lay up two hundred fifty thousand dollars per annum.”

If his peers were remarkable for their character, Daniel Webster outshone them in intellect. “Webster was somewhat lacking in character”; having won a point in principle, “he would lapse into indifference and suffer the fruits of his victory to be snatched from him by men of inferior intellect.” But in intellect he had no equal among the public men of that day—not even Calhoun. “The perfection of common sense,” his mind in debate kept together the details of the bill he argued for or against; the rules of the Senate; the character of each senator he engaged; the fundamental principles of the Union. “If it had not been for Webster, Calhoun would have carried everything before him.” In his published speeches in defense of natural-rights republicanism “he taught the country what the true nature of its government is,” out of the teachings of the Founders. “He logically, powerfully, clearly and popularly demonstrated the baneful character of the disunion and secession heresy,” and in so going set in motion the resolve of those people who finally preserved it.

Dyer among them. After his year in the Senate he studied an practice law in Washington, but soon moved to journalism in New York, where he wrote for and edited several major newspapers. Having learned politics, low and high, before he began to write about them, he campaigned courageously against the city’s underworld, siding with embattled religious and civic reformers. In 1852 he promoted the career of Sarah Willis, who became the first regularly-featured woman newspaper columnist in America after Dyer hired the divorced mother of two boys doubling her previous salary. Like his heroes of ’48, he wasn’t afraid to take risks for the right as he saw it. And like his old benefactor, Mr. Weed, he’d pull a string or two for a young talent.

By 1889, when Dyer published his reminiscences, the Civil War had been won but the political reconstruction of the Southern states along republican lines had in many respects failed. Now allied with poor whites against the freedmen, the oligarchs had recovered much of their power. Northerners had decided to move on, hoping for a gradual amelioration of race relations. Dyer concludes with a benediction for all the great senators “of forty years ago,” including Calhoun, despite “his unfortunate political aberration.” Dyer couldn’t know, and would not live to see the new political aberrations of the century to come, at home and abroad. We who have seen them will also see why Congress again finds itself sharply factionalized: Congress members and many voters sense that the regime issue once more is at stake, as it was in the decades leading to the Civil War. Because Progressivism altered the structure and therefore the character of American government and education, we no longer have senator capable of stating the principles beneath today’s conflict. This leaves it for citizens themselves to recover the American Constitution as understood by its Framers.

Giorgi Areshidze: Democratic Religion from Locke to Obama: Faith and the Civic Life of Democracy. Lawrence: University Press of Kansas, 2016.

Originally published in Law and Liberty, April 12, 2017. Republished with permission.

 

First and foremost, modern liberalism aimed at ending the moral, political, and intellectual conditions underlying the savage religious wars which wracked sixteenth- and seventeenth-century Europe. The concurrence of the Protestant challenge to the Roman Catholic Church with the founding of centralized states capable of raising and funding large armies made these wars both uncompromising and devastating. Although the earliest liberals—Francis Bacon, Thomas Hobbes—advocated religious establishments strongly supported by the new states as a means of imposing civil peace on warring factions, liberalism took a new turn with John Locke, who argued for republicanism in politics and toleration toward religion. In the three centuries since Locke, liberalism has retained its republicanism, but in recent decades its relation to religion has become shaky, as religious people have come to fear the advance of ‘secularization’ (often deployed as a polite term for atheism) and liberals have come to fear religious ‘fundamentalism’ (often deployed as a polite term for fanaticism).

Giorgi Areshidze offers a succinct and penetrating analysis of liberalism’s most recent iteration, seen in the theory of John Rawls and the political thought of Barack Obama. How does Rawls’s theory compare with the natural-rights liberalism of Locke and the postmodern liberalism of Jürgen Habermas? And how do Obama’s attempts to address the religio-political question compare with the thought of his two great heroes, Abraham Lincoln and Martin Luther King? Do the troubled relations between the modern state and contemporary religious communities derive from the Rawlsian liberalism we have now, or do they inhere in liberalism as such?

In his book Political Liberalism, Rawls advocates a doctrine of universal toleration—of political “impartiality” respecting not only religions but all “comprehensive doctrines,” whether derived from revelation or from reason. Government should maintain strict neutrality regarding all conceptions of ‘the good.’ Citizens may invoke religious or philosophic reasons for policy only insofar as they form part of the “overlapping consensus” of opinions in civil society. So, for example, if I assert that all persons stand as equal before God, that is admissible only insofar as public opinion generally favors human equality. Justice in Rawls’s view has no religious or philosophic foundation; its policies simply reflect the prevailing consensus. Debate proceeds along the lines of “public reason,” which means reasoning that remains within the bounds of the prevailing consensus. Thus “Political Liberalism demonstrates a latent dependence on historically inherited metaphysical and theological foundations that support liberal politics.” Rawlsian liberalism is a specimen of historical relativism, an observation some made regarding his earlier and highly influential book, A Theory of Justice. [1]

This historicist tendency of contemporary liberalism both influences and troubles Barack Obama. As an admirer of the Abolitionist movement of the 1800s and the civil rights movement of the 1900s, Obama would revive an appreciation of Christianity on the American Left. He doesn’t want to leave religiosity as a province of social and political conservatism. But he also esteems social and religious pluralism, invoking a need for “the religiously-motivated” to “translate their concerns into universal, rather than religion-specific, values.” For him as for Rawls, that means “consensus-building.” He regards America as a post-Christian society, a “mosaic” of religions and of irreligion. Areshidze wonders, “To what extent is it possible to update American civil religion so as to take into account the nation’s increasingly pluralism without at the same time diluting religion so much as to render its contribution to democracy practically useless?” If “the standard of public reasonableness requires all claims of revealed religious authority to submit themselves to the tribunal of unassisted human reason,” why does that no render religion politically superfluous? Obama understands the Bible in exactly the same way he and other liberals of historicist leanings understand the U. S. Constitution: “It is not a static text but the Living Word,” open to “new revelations,” inviting us to employ “a method of creative interpretation.” In so arguing, “Obama never explains why religious accommodation with modern life should come at the expense of those religious views which do not simply support present-day cultural norms,” although he admits that “the absolutists” have led the causes he most esteems. This “conceptual impasse” of contemporary, historicist liberalism leads Areshidze back to the founder of republican liberalism, John Locke, and a preeminent American practitioner of liberalism, Abraham Lincoln.

Locke was no historicist. He based liberalism squarely on a doctrine of natural, not historical rights. Very astutely, Areshidze remarks that the argument for religious toleration Locke makes in his Letter on Toleration differs from his argument in the Essay Concerning Human Understanding, which he was writing at the same time. the Letter “bases toleration on a religious argument about the sanctity of human conscience” as each individual searches for “religious truth.” The Essay “grounds toleration on the limit of human knowledge”—on a form of skepticism. The Letter rests on an appeal to the prevailing opinion of the time, relying on Biblical exegesis; the Essay relies on reason alone. One book is ‘popular,’ the other ‘philosophic.’

Not that the Biblical exegesis Locke propounds in the Letter comports fully with the prevailing Christian orthodoxy of his time—or indeed with the teaching of the Bible itself. Mutual toleration among Christians is alleged to be “the chief characteristic of a true church,” although the New Testament attests to love, not toleration. When Locke does testify to the fact of Christian lovingkindness, he makes it serve toleration and good works. Crucially, in enlisting the support of Paul’s Letter to the Galatians, Locke accurately cites sins not to be tolerated by Christians—”works of the Flesh,” generally—but leaves out such doctrinal sins as “seditions and heresies”—works of the mind, as it were. It was the public enunciation of such spiritual sins that persuaded Augustine, Aquinas, and Calvin to enlist governments in the task of suppressing the full range of un-Christian acts; Aquinas went so far as to urge the death penalty for heretics. (Perhaps glancing back at Rawls and Obama, Areshidze describes this as a “nearly uninterrupted Christian consensus”—bad news indeed for Rawlsian liberals.)

To this Locke replies in the Letter that coercion can never genuinely persuade, and that only a persuaded soul can enter Heaven through the strait gate. But in the Essay Locke admits that, on the contrary, beliefs are indeed formed by a mixture of coercion and consent. There, he argues not from the Bible from what later writers would call epistemology: the Bible speaks of “knowing” God, but what is knowledge? Locke answers with a materialist form of Cartesianism; knowledge consists of clear and distinct “ideas,” which are at bottom nothing more than sense-impressions (e.g., black is not white, round is not square). If so, when we say we “know” God we really mean we believe He exists, and that we trust in His loving (therefore patient if far from tolerant) care. God transcends our sense-impressions, and therefore our knowledge. The philosophic foundation for religious toleration turns out to be our non-knowledge of God, in whose omniscient Spirit alone judgment of heresy may be safely and exclusively lodged.

Abraham Lincoln resembles Locke, deploying Biblical imagery while resting his core argument against slavery squarely on the principles of the Declaration of Independence, “principles which themselves were publicly contested”—the slaveholders, following John C. Calhoun, denied them—”and required theological support if they were to be successful at reforming the political status quo.” Whereas the young Lincoln openly described his “civil religion” of law-abidingness as thoroughly and exclusively rationalist, the mature Lincoln invokes the Bible. Yet he does so in a Lockean way, transforming human labor from its status as divine punishment for sin into a theory of value, “the source of man’s natural entitlement to the fruits of his labor” and therefore a proof against slavery. Like Locke, and unlike Rawls, Lincoln does uphold a rational ascertainable “standard of justice” beyond public opinion, a standard all Americans have sullied and thus deserve scourging by the “living God”—a being whose existence Lincoln never explicitly affirms.

Martin Luther King goes much further, “aim[ing] to achieve a spiritual transformation of American democracy through the testimony of his religious witness.” King “sensed that Christianity had probably been more transformed by American democracy than American democracy had been by Christianity.” But what would a “religiously tutored liberalism” be? To justify civil disobedience, King couldn’t overlook the Pauline disavowal of disobedience to law; rather, the appealed to the Thomistic claim that unjust laws are no laws at all—a claim parallel to the Declaration’s charge that the tyrant-monarch had by his tyranny “abdicated government here.” More, King asserted that the idea of the sanctity of the human person made in the image of god justifies the equal-rights teaching of the Declaration, which of course does say that all men are created equal, endowed by their Creator with certain unalienable rights. That is, King saw that the Declaration reconciles Locke with Christianity—much to the consternation of that good Lockean, Thomas Jefferson, who wrote the first draft quite evidently without consulting the Bible.

But do the Gospels really advocate social change? No, but to that objection King replied that social conditions had changed—twentieth-century America isn’t ancient Jerusalem—and, moreover, the apostles wrote in the expectation that the world would end and the Messiah would return in very short order. The two-millenia-long delay of the Parousia necessitated a Christian response, namely, non-violent social and political reform based upon the standard of equality set down in the Book of Genesis and affirmed by the American Foundes. King then added a historicist trope: “God reveals himself progressively through human history, and… the final significance of the Scripture lies in the outcome of the process”—a claim quite foreign to the Founders, to Lincoln, or indeed to Locke. Areshidze doubts that King’s eclecticism “is ultimately sustainable.” In his final chapter he turns to the postmodern Jürgen Habermas and finally to Tocqueville, in quest of a more stable liberalism.

He doesn’t find it in Habermas, who himself has shifted from Enlightenment-style secularism to the admission that liberals may be able to learn a thing or two from religion, after all. Habermas offers a bow to revelation, going so far as to say that it can serve as a source of insights for social action that unassisted reason cannot find. As a postmodern, he no longer believes in Enlightenment rationalism, which he now regards as eminently fallible. But he also cannot bring himself to piety. He “appears to remain deeply divided and uncertain.”

Tocqueville is more successful. The first volume of Democracy in America shows the origins of American democracy (by which he means social equality in the sense of the absence of a class ‘born to rule’ all others, an aristocracy) in the Puritan founding. The Christianity that guided the Puritans itself served as a bridge between aristocracy and democracy: “It was necessary that Jesus Christ come to earth to make it understood that all members of the human species are naturally alike and equal,” Tocqueville wrote. Christianity is “the most precious inheritance from aristocratic centuries” in that it comes ‘from above’ to an ancient people accustomed to being ruled from above. But the message itself reveals human nature, which undercuts any conventional aristocracy because (as Locke holds) human beings are all of the same species, “equal and alike” in that sense. In a final twist, however, once democracy as a social condition finally erodes aristocracy and establishes itself in civil society, it begins to show the characteristics Tocqueville describes in Volume II: in a phrase, materialist Cartesianism. Tocqueville “gently reveal[s] how the Enlightenment and modern democracy transform religion,” bringing us quickly to the crisis of our own times.

Perhaps it was not for nothing that Augustine described the City of God as captive and stranger in the Earthly City. Areshidze’s fine book leaves us wondering if the dilemma of liberalism may not be a subspecies of that more fundamental problem, ameliorated by liberalism but insoluble until the return of Messiah.

 

Note

1. See Paul Eidelberg and Will Morrisey: Our Culture ‘Left’ or ‘Right.’ Lewiston: The Edwin Mellen Press, 1992, 128-131.

 

United States v. Carolene Products 304 U. S. 144 (1938).

Originally published by Constituting America, June 2, 2017. Republished with permission.

 

If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim (some might say pretend) the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case—specifically, in the fourth footnote to the majority opinion, written by Justice Harlan Stone. It has been described as the most famous footnote in the history of the Court.

The decision makes no sense, however, without an understanding of the political climate in which it came about. After the 1929 stock market crash, the Great Depression caused an unprecedented economic and political crisis in the United States and around the world. What made the Great Depression ‘great’ was its sheer extent and duration. Americans had seen bank ‘panics’ and economic downturns before. But these events hadn’t lasted long, and the men who were thrown out of work as a result of them received relief from local governments, charities, and family members. The scale of the Great Depression overwhelmed these local supports.

To the astute politician, crisis means opportunity, and there was no more astute politician in the country than New York’s Governor Franklin D. Roosevelt, the Democratic Party nominee opposing beleaguered President Herbert Hoover in the 1932 election. Speaking to the Commonwealth Club in San Francisco, Roosevelt delivered the rhetorical masterstroke of the campaign. “The day of enlightened administration has come,” he announced. His cousin Theodore had tried to meet the problem of overbearing financial and industrial power by busting the trusts, FDR said, but that didn’t work. A steadier means of control was needed. In justifying his proposed new regime of “enlightened administration,” he slyly distorted the Declaration of Independence, saying, “The Declaration of Independence discusses the problem of Government in terms of a contract. Government is a relation of give and take, if we would follow the thinking out of which it grew. Under such a contract rulers were accorded power and the people consented to that power on consideration that they be accorded certain rights. The test of statesmanship has always been the redefinition of those rights in terms of a changing and growing social order.”

Notice that FDR makes no mention of the Laws of Nature and of Nature’s God endowing certain unalienable rights to all men, who are created equal with respect to these rights. FDR defines rights as purely civil, arising from human agreement—consent formalized in a contract or written constitution. Government no longer secures rights we already have, as human beings; rights are “accorded” to us, by, well, ourselves by means of a contract between rulers and ruled. This implies that there is one class, the rulers, and another class, the rest of us, instead of one sovereign people, under God.

As one might suspect, Roosevelt had someone, and something, very specific in mind when it came to a statesman who would redefine Americans’ right “in terms of” social change. Given the Depression, “We must restrict the operations of the speculator, the manipulator, even the financier. I believe we must accept the restriction as needful, not to hamper individualism but to protect it.” As it happened, Herbert Hoover had published a book in 1923 title American Individualism, a statement of the ‘old individualism founded on equal, unalienable rights and the Constitutional rights which secured the property which enables us to secure our lives, fortunes, and happiness. But when “private initiative has failed,” Roosevelt now replied, the federal government should “assume the function of economic regulation as a last resort.” In his 1933 Inaugural Address, the triumphant new president called upon Congress to grant him executive powers “similar to those necessary in time of war.” With such executive powers in hand, power exercised by an administrative state lodged within the executive branch and staffed initially by Roosevelt appointees, who would enjoy lifetime tenure, the American republic could truly be said to have changed from the commercial and democratic republic of the Founders to what Aristotle and Cicero would have recognized as a ‘mixed’ regime, consisting of an elected, bicameral legislature but also an increasingly kinglike presidency and an obviously ‘aristocratic’ administrative apparatus, soon to be called a ‘meritocracy.’ Throughout his four terms in office, Roosevelt often cast his revolution as ‘conservative’—an effort to preserve individual rights, capitalism, and constitutionalism under conditions of crisis in an industrialized society which had left the agrarian way of life Jefferson loved far behind. This of course assumed that the existing regime and its constitution could not have sustained American rights.

FDR had cooperation from New-Deal Democrats in Congress, elected with him in the 1932 landslide. The centerpiece of the New Deal legislative agendum was the National Industrial Recovery Act of 1933, which gave the President the power he’d requested to fight the economic ‘war.’ Not only did this cede legislative power to the presidency and ‘his’ bureaucracy, it also gave corporations and trade associations substantial influence over the regulations enacted by the National Recovery Administration, even as it left the enforcement of those regulations to the federal government. Although President Hoover had experimented with a much weaker version of this arrangement, the NIRA initiated the extensive collaboration among presidents, federal administrative agencies, major corporations, and labor unions seen to this day.

But not without initial resistance from the Supreme Court, which ruled the NIRA unconstitutional on the grounds that executive power must not expand by legislative-branch delegation of lawmaking power to presidents or administrative boards. To FDR’s dismay, even the progressive-liberal justices Benjamin Cardozo, Louis Brandeis, and Harlan F. Stone concurred. In prefaces to the several volumes of his collected papers, published a few years later, Roosevelt told his side of the story. “Commencing in 1935, and running down to the election of 1936, there came a line of decisions from the Supreme Court (and from the lower Federal Courts) which so limited the powers of the Federal Government and the powers of the State Governments to obtain the legitimate objectives for which the people voted at the polls in 1932 and 1934, that all real progress toward those objectives began to appear impossible.” “Legitimate” means “lawful,” but of course that was the point in question. Since the Supreme Court says what the law is, Roosevelt moved to change the Court in order to change how it defined the supreme law of the land. In this, he and his fellow-Democrats were quick to decry “government by judiciary,” and a Depression-weary electorate responded by returning Roosevelt and his allies to power in 1936 in an even bigger landslide than the one which had brought them into office four years earlier.

Thus fortified, in his 1937 Message to Congress Roosevelt pounced. “The vital need is not an alteration of our fundamental law”—Constitutional amendment might be time-consuming and politically risky—”but an increasingly enlightened view with reference to it”—that is, “a liberal interpretation” or “broad interpretation” of the law itself. Or, as he put it rather more boldly in the 1941 preface to the sixth volume of his collected papers, “For two decades [that is, beginning in the second term of the
Wilson Administration] the Supreme Court of the United States had been successfully thwarting the common will of the overwhelming majority of the American people; and had been diverting the functions and philosophy of government into channels which run counter to the thought of progressive opinion throughout the modern civilized world,” laying its “dead hand” on the “whole program of progress,” and indeed acting like a “super-legislature.” To fight back on behalf of American public opinion and progressive world opinion, FDR proposed his soon-to-be-notorious ‘Court-packing’ plan, which would have empowered the president to appoint an additional Justice (up to six) for every member of the Court aged 70 or older. This would have given him the new appointments he needed to uphold New Deal legislation. Comparing the three branches of the federal government to a three-horse team, one of which stubbornly pulled in the wrong direction, he took his case to the people in a March 1937 Fireside Chat.

He lost. Having waved away the Founders’ idea that the separation of powers presupposes not a team of horses all going in the same direction, but a system of checks and balances designed to moderate the actions of any one branch, or any two branches acting in coordination, FDR didn’t anticipate how sharply even an economically beleaguered American public might turn against a president who, effectively having acquired substantial legislative powers from a docile Congress, also proposed to take control of the judicial branch. Constituent mail to Congress ran 8-1 against the proposal, and even many of the old Progressives, allies of Wilson from two decades back, deserted him on this one. In desperation, Roosevelt struck a deal with John L. Lewis, head of the United Mine Workers, obtaining his support for Court-packing legislation in exchange for an agreement to tolerate strikers who illegally occupied the property of mine owners against whom they were striking. Even this support wasn’t enough; the legislation failed to pass Congress.

But, as it happened, it was enough, substantially if not formally. A few weeks after the Fireside Chat, the Court upheld a Washington State minimum wage law in West Coast Hotel v. Parrish. Decisions sustaining the National Labor Relations Act followed. New Dealers happily recalled a turn-of-the-century quip by the Irish-American humorist Peter Finley Dunne, who’d written, “The Supreme Court follows the election returns.” Even more famously, they alleged, “A switch in time saves nine,” although the Court-packing plan had hurt them more than it had helped in the ‘court’ of public opinion. For himself, several years later FDR exulted, “The Court began interpreting the Constitution instead of torturing it.” Unless they had changed their tune “there is grave doubt whether [our democracy] could have survived the crisis which was bearing down upon it from within, to say nothing of the present [1941] threat from abroad.” Whereas freedom of contract’s “old unrealistic meaning” had stifled New Deal progressivism, its new and supposedly realistic meaning was that “liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morale, and welfare of the people.”

The Court had legitimated presidential and administrative lawmaking over the head of Congress, a legitimacy earlier granted by Congress itself. From now on, the United States had what amounted to a new regime.

Having tacitly conceded its power to pronounce on the constitutionality of a substantial swath of cases—those relating to contracts and other property rights—the Court needed to find a new role for itself. What would it do in the new (indeed New-Deal) administrative state? The answer came in 1938 with its decision in United States v. Carolene Products. A 1923 federal law had banned “filled milk”—a substance consisting of skimmed milk thickened with vegetable oil to make it seem like whole milk or cream. The Filled Milk Act of 1923 had been enacted at the behest of dairy farmers who objected to prices for their product being undercut with a cheaper and, as they claimed, adulterated product. Carolene Products, a producer of filled milk, sued the federal government, charging that Congress had gone beyond the power of the interstate commerce clause in regulating the content of an item sold commercially, rather than regulating the processes of commerce itself.

The Court ruled that the interstate commerce clause should be interpreted broadly, allowing federal regulation of interstate commerce so long as there was a “rational basis” for such law—for example, the protection of the public health. Up to then, public health issues had been the province of the state governments, their powers in this area taken to be covered by the Tenth Amendment. No longer.

But more significantly, in the fourth footnote to the opinion, Justice Stone served notice that the clauses in the Constitution which entailed “a specific prohibition” against government interference—as for example the First Amendment’s stipulation that Congress shall make no law restricting freedom of speech or religion—would be protected by the Court. This protection would extend to the protection of “discrete and insular minorities”—religious, national, or racial—against any law which “tends seriously to curtail the political processes ordinarily to be relied upon to protect minorities.”

The Court thus ceded very broad powers over property to the president, the administrative state, and the Congress via a “broad” or “liberal” interpretation of the interstate commerce clause, as FDR had urged. It reserved for itself cases in which this much more powerful and centralized state might infringe on the political and civil rights of the citizens it ruled and more, over the populations within each state in the American federation. The Court would thus carved out a way in which it could continue to exercise some check-and-balance power against the executive branch and its much more massive administrative arm while also participating fully in that newly-empowered federal government. In decades to come, especially after the Second World War (which saw a serious breach of the civil rights of Japanese Americans upheld by the Court), civil rights cases increasingly preoccupied the justices, as they attempted to protect those rights against encroachment by the large and ever-expanding New-Deal state. At the same time, the Court availed itself of the power FDR had himself urged upon it—the power to interpret the Constitution broadly—to each states’ powers regarding civil rights, consumer protection, and a plethora of matters not directly involving property rights. The third horse of the governmental team now (usually) pulled in tandem with its partners in the direction of what the Founders would have regarded as an oxymoron or contradiction in terms: liberal statism. When FDR and a compliant Congress established it, eventually with Supreme Court approval, administrative offices were packed with officers sympathetic with that president and that Congress. There was a firm connection between popular opinion and those who ran the agencies. As years and then decades passed, however, the tenured ‘civil servants’ inevitably became somewhat detached from elective officeholders. The top administrators are appointed by the president, and Congress exercises its ‘oversight,’ but the ‘wartime’ atmosphere of the 1930s and 1940s receded long ago, despite the attempts of subsequent presidents to gin it up again by declaring ‘wars’ on poverty, disease, addictive drugs, terrorism, and a variety of other ills. The oligarchy survives and thrives.