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

 

Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.

Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgivers established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawgivers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it.

Such legislative dominance had seemed to make the rule of law unassailable, but the contrary turned out to be true. Under the Articles, laws passed by Congress couldn’t penetrate into the states to govern individual citizens. This left an apparently formidable, unicameral federal legislature dependent upon the states for revenues and for enforcement. The purpose of the rule of law is to place a layer of protection between the persons enforcing the commands of government and the persons ruled by those commands. But the rule of law is nonetheless a form of ruling. Under the Articles, the states amounted to a second, political ‘layer’ of authority; the federal government could enact laws but it could not rule by those laws. As Publius writes in The Federalist, “Government implies the power of making laws”; it also implies the power of enforcing them.

If the federal government shall truly govern, however, additional safeguards needed to be build into it. A unicameral legislature that made laws but also enforced them and judged cases arising under them, reaching down to individuals within each state, might behave like a many-headed version of George III. Better, then to follow the longstanding recommendation of John Adams and establish a bicameral legislature. With the legislators in one house proportioned to the population of the states, the popular or democratic character of American republicanism would survive. Although women couldn’t vote in most states, the percentage of adults who could vote in the United States was still higher than in any other legislative body in the world at that time—far higher than in the British House of Commons, for example, whose members were elected by no more than fifteen percent of the adult population. By contrast, not only were the House members chosen by a more broadly-based electorate, but members themselves needed to meet no property requirements. Publius observes, “Under… reasonable limitations, the door of the House of Representatives is open to merit of every description, whether native or adoptive, whether young or old, and without regard to property or wealth, or to any particular profession or religious faith.”

The other branch of the legislature, the Senate, exists to protect the states, which exchanged their power effectively to veto federal legislation for a hand in making that legislation. With each state equally represented in the Senate, and with Senators elected by their state legislatures, citizens in every  state could feel confident that the federal laws which would now rule them directly would not compromise the rightful powers of the states. In addition, the requirement that any proposed law would need approval of both houses, and that the senators would serve terms three times longer than members of the House, guarded citizens against what Publius calls “sudden or violent impulses” in lawmakers who might otherwise be swept up in the passions of the moment.

Although our contemporaries frequently use the terms ‘democratic’ and ‘republican’ as if they were synonymous, the Founders did not. The purpose of republican or representative government, as distinguished from the pure democracies of ancient Greece, where all acted as legislators and often as judges in the assembly, was precisely to empower reason over passion, to obtain “a cool and deliberate sense of the community,” as Publius phrased it. “Had every Athenian citizen been a Socrates”—a philosopher, a person ruled by reason—”every Athenian assembly would still have been a mob,” so powerful the passions become when human beings begin to orate at one another. Had Athens had a senate, Publius goes on to observe, Socrates would not have been put to death by his countrymen; the existence of a second seat of deliberation would have slowed things down, given Athenians time to think the matter through.

Despite their longer terms in office, and despite the property qualifications required of senators, the United States Senate would be no voice for an aristocracy, no House of Lords, The Constitution prohibits laws establishing primogeniture, the social and economic foundation of landed wealth. Senators may be richer than members of the House, but they are every bit as ‘common.’ All Americans are ‘commoners.’

As a final precaution, the Framers of the 1787 Constitution carefully enumerated the powers of the federal government. Congressional law governs interstate and international commerce, the military (including the militia), and establishes a federal judicial system operating under what Publius calls a “uniform code of civil justice.” Other powers remain in the states, or in the sovereign people.

The design of the United States federal government has been admired and sometimes imitated throughout the world. Yet few Americans today think of their government as very much limited to matters of commerce, military defense, and constitutional law. Given the legal and institutional safeguards the Framers enacted, why then do we now see such an extraordinary concentration of power in the federal government? Part of the answer may be seen in the transformation of Congress, a transformation undertaken and completed in the first seven decades of the last century, but especially between 1933 and 1969.

The same phenomenon has been seen in the states. Although I have never worked in Congress, I have worked on a state legislative staff. At no time did I or anyone else on that staff participate in formulating the bills that became laws. Each of the two major political parties had staffs in the state capital charged with that responsibility, augmented by the Office of Legislative Services, a state agency staffed by attorneys who reviewed all bills to ensure that the language was legally correct. ‘My’ state senator could propose an idea for a law, push to get it out of committee and onto the floor, but neither he nor his staff could have been seriously described as lawmakers.

We were nonetheless quite busy. Doing what? Typically, a constituent would call our office, in some degree of agitation over treatment received at the hands of a state administrative agency. My first task was to determine whether the complaint was likely to be legitimate, which it usually was. It transpired that, on occasion, unelected bureaucrats contract George III syndrome; symptoms included arbitrariness, injustice, and a touch of conceit. I would call the relevant state official (unlike the ordinary citizens, I had a handbook with their names, titles, and telephone numbers) and engage him or her in civil but firm conversation. I would often draft a letter to the relevant department head for the senator’s signature, following up on that conversation, putting a sort of legislative-branch imprimatur upon the point. Given the fact that the legislature retained control of the purse-strings holding the funds which kept bureaucratic lights on, these efforts more often than not had the desired effect.

That this new non-legislative task now forms the core of what’s still called the legislative branch of the federal government—that the procedure I followed was very far from restricted to the government of just one state, or even all the states, but extends to Congress itself—was confirmed at that time by political scientist Morris P. Fiorina, who published the current edition of his book on the subject in 1989. Cogently titled Congress: Linchpin of the Washington Establishment, this study has deservedly become a standard text in colleges throughout the country.

Fiorina began by contrasting the rate of turnover in the biannual House elections of the nineteenth century with that seen since the 1960s. In the 1880s and throughout that century, 40-50% of House members were replaced in each election. By the 1980s, the replacement rate had dropped to 15%. Being generally more elderly than their House colleagues, Senators die or resign more frequently, but that is no measure of voter sentiment, except in those cases when a Congressman may resign in anticipation of losing. So, for example, since 2008, 43% of Senate seats have ‘turned over,’ while the House has held steady.

Why the difference between the early Congress and the modern Congress?

Fiorina identified two principal causes. In the nineteenth-century House, committee assignments had been determined by the Speaker of the House, but Progressive-era reforms included a system of committee advancement based on seniority. Once years in service counted towards a member’s eventual chairmanship of committees and subcommittees, voters had a reason to keep ‘their guy’ in office; the more seniority he has, the more federal dollars he can direct to your district.

More important, however, was the Progressives’ expansion of the federal bureaucracy, which spiked upwards in the New Deal of the 1930s and then again with the Great Society programs of the 1960s. With a substantial and complex centralized bureaucracy now in place, combining legislative/regulatory, executive, and judicial/administrative-court powers within its agencies, Washington developed what the English call an ‘establishment’—a permanent ruling class. Legislators still legislated, but in a different ways; they still did favors for constituents, but also in a different way.

The good-humored and slightly cynical Professor Fiorina described it in terms of a certain sort of clever circularity. Congress enacts a law, signed by the President and sometimes initiated by him, through his allies in Congress. Congress couches the law in vague, general terms. This leaves the bureaucracies with the task of filling in the regulatory details; since the proverbial devil happily resides in details, this makes many Washington establishmentarians very happy indeed. Here’s where you, the citizen, come in: lost in the bureaucratic maze, confused by paperwork, whipsawed (as you think) by persons you didn’t elect, who consequently care little for your plight.

Ah, but now you turn to your rescuer, your friendly, local Congressman. He (or rather his staff) intervene heroically on your behalf, setting things right, winning your approval and, more usefully still, your vote and a reputation as one stand-up guy. To top it all off, your devoted representative can do this while inveighing against bureaucratic red tape and burdensome paperwork, imposed upon hardworking taxpayers by faceless and unfeeling bureaucrats. Thus Americans may detest ‘Congress’ while re-electing their own Congressmen time and time again. They just can’t stand the other 434 members of the House. Or, as legendary House Speaker Thomas P. “Tip” O’Neill put it in the 1980s, “All politics is local.”

This new and symbiotic relationship between Congress and the Washington bureaucracy has resulted in larger Congressional and administrative staffs. For Congress, Fiorina cites statistics that are now familiar. As late as 1960, House members’ office staffs averaged nine positions. By 1977, that doubled. Senators had larger staffs to begin with, but these staffs doubled, too. Less lawmaking was going on, on the Hill, but more pork-barreling and a lot more ‘constituent casework’ had been added.

In the past three decades, things have changed again, although not back to the old norm. Staffs have been reduced, now averaging 14 for House members, 34 for Senators. (One might observe that desktop computers have also made staffers more productive, with less need for typists and file clerks.) The real change isn’t in staffing, however, but in public opinion. All politics is still local when it comes to helping constituents with routine problems. But (as Fiorina himself has written in recent articles) our political life has become much more ‘national’ in terms of the issues addressed in local Congressional campaigns. Here, the turning point was the 1994 House election campaign engineered by House Minority Whip New Gingrich. Gingrich persuaded House Republicans to run on such national issues as welfare reform, term limits, tax cuts, and a balanced budget amendment. It worked; his party won enough seats to take the majority for the first time in forty years.

Since then, a semi-‘nationalized’ electorate hasn’t ‘polarized’—meaning, separated itself into ‘Left’ and ‘Right’ factions, with no centrists—quite as much as commentators claim, although it has polarized somewhat. In Fiorina’s term, political and media elites have “sorted” themselves into such factions; there are no more conservative Democrats, and no more liberal Republicans. A few moderates remain, grabbing headlines on close votes, but Democrats like Senator Russell Long and Republicans like Jacob Javits no longer exist. A middle-of-the-road electorate has no comfortable home in either party; a substantial portion of our fellow-citizens consider themselves ‘independent voters.’

Fiorina’s analysis should be supplemented by observing that the increase in national sentiment among voter and also ideological conflict among elites has sharpened in part becaue more people now question the post-World-War-II consensus, which consisted of broad approval of Progressive-style government policies. The difference between, say, Richard Nixon and Hubert Humphrey in the 1968 election was a matter of degree. The difference between Ronald Reagan and Walter Mondale in 1968 was not, nor was the difference between Donald Trump and Hillary Clinton in 2016. Reagan and Trump ran against the administrative state itself. That has caused the heirs of Progressivism to take their battle positions in defense of their status quo—nowhere more so than in the “linchpin of the Washington establishment.”

Another way of putting it is: For the first time in a century, Congress is getting interesting, again.

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.