Aziz Rana: The Two Faces of American Freedom. Cambridge: Harvard University Press, 2010.

Originally published in Law and Liberty, June 7, 2015. Republished with permission.

 

American freedom has two faces, Aziz Rana maintains: political liberty or self-rule for citizens; subordination (at times going so far as enslavement or extermination) for non-citizens. He wants to show that these faces appear on opposite sides of the same coin, and that the coin needs recasting if we want our freedom universalized.

Although Rana has earned his degrees in political science and law, here he writes as a historian. The Two Faces of American Freedom demonstrates once again that was used to be called ‘the New Left,’ which gathered academic authority in the late 1960s, still reads its Marx but in some respects prefers Nietzsche: History is a tool to achieve social and political revolution. Rana’s revolution, of course, is to be pursued under the banner of an egalitarianism that Nietzsche himself despised.

Whereas the old Left either democratized Hegelian idealism (as seen in the American Progressives) or adapted some form of Marxist materialism—in which ‘history’ defined as the course of events is said to unfold in accordance with rationally perceivable laws—the New Left began to call itself ‘postmodern,’ viewing such rationalism with a touch of irony. The 1960s scholars turned to rhetorical tropes like reimaging history or, somewhat more preciously, ‘re-visioning’ it. The radical intellectuals’ role wasn’t any longer that of scientific prognosticator, but instead a kind of orator/sophist, attempting to seize control of imagery and language, in an effort to awaken their fellow citizens or, to put it as they did, to raise their consciousness.

Professor Rana is frank with us: “I see this project as a form of social criticism, in which history is presented”—the use of the passive voice is telling—”in the service of today’s problems as well as tomorrow’s latent possibilities.” He sees his task as “constructing an alternative image of the nation’s founding and experience, one that can replace the traditional accounts of exceptionalism and constitutional practice.”

The idea is “to show how apparently marginal views of freedom and social membership are themselves foundational aspects of our identity.” And there’s a lot riding on that “show.” If writers who think of themselves as radical critics of the American regime can be presented as ‘our own, their writings will be more acceptable to (potentially) a critical mass of opinion, and will gain political leverage. But does “show” mean demonstrate, prove” Or does it mean ‘perform a makeover on’?

To accomplish his project, Rana needs his own two faces. One denies American “exceptionalism,” which he defines as the belief that America stands “outside the contested histories of Europe, particularly its bitter conflicts over social standing and class”—a belief he associates with St. John de Crevecoeur, Alexis de Tocqueville, and Louis Hartz. The other face affirms the American “ideal of freedom,” its aim of self-government, up to now sadly and fatally entwined with the European imperial project, of which American colonists were the instruments even as they sought independence from it.

Rana’s denial and his affirmation serve a single purpose: to get his readers to “think of the United States as an experiment in political openness.” The extent to which any polity can be “open” is of course a vexed question, and Rana’s optimism inheres in his Left-historicism, suspicious of the traditionalist historicism of the Right while eschewing the permanent foundations (and limits) of either divine or natural right. If Right-historicism rejects the attempt to liberate ourselves from tradition, from the past, as deplorable and finally impossible, Left-historicism embraces it as exhilarating and indispensable.

“Exceptionalism” is easy to refute. All you need is a simple change of perspective. If I want to same I’m exceptional, I can exhibit my fingerprints; if you want to deny my exceptionalism, reduce me to the physical compounds of which I consist—oxygen, carbon, hydrogen, nitrogen, calcium, phosphorous and other materials currently worth about $160. Rana denies American exceptionalism or non-Europeanness by observing (quite sensibly) that Americans were not only Europeans but Europeans of a particular sort, seen elsewhere: settlers.

His more important claim is that being-a-settler isn’t only a coincidence but—in that neo Marxist way the New Left adopted—a social, economic, and political circumstance from which certain justifications can be seized. Settlers settle: that is, they occupy land, displacing indigenous peoples and “maintain this supremacy permanently or for many generations,” while developing “complex ideologies to legitimate such enforced inequality.” Rana’s unexamined assumption throughout is that both inequality and rule by force are morally wrong, and it is his eschewal of philosophic for historical argument—the philosophic approach he rejects is that of John Rawls, which is indeed as “abstract” as he says—that obscures this.

The book has four main sections: the colonial period, the Founding period, post-Civil War populism, and the New Deal state. Under each rubric the author has unearthed a rich trove of information augmented with argumentation; as one should expect from a law professor, he has especially cogent things to say on legal cases. As long as one keeps his rhetorical-political strategy in mind, he may be studied with delight and (if I may be permitted a capitalist metaphor) profit.

The English colonists in America took their bearings from the colonization of Ireland, which justified conquest of infidel and barbaric foreigners. Although the Irish “practiced a form of Catholicism,” they mixed in too many pagan customs and their Catholicism itself was suspect to the “extreme Protestants” who settled there. By “barbaric” or “uncivilized,” English Protestants meant that the Irish didn’t farm, living in no fixed location but moving about in search of grazing land for their livestock.

On the religious side of the critique, the distinguished jurist Edward Coke regarded infidels as “perpetual enemies” of Christians, their a way of life opposed not only to Christianity but to “the law of God and of nature, contained in the Decalogue.” Such persons deserved rule not under English common law but under the absolute rule of the monarch: “The King by himself, and such judges as he shall appoint, shall judge them and their causes according to natural equity.” American Indians were even more purely heathen than the Irish and therefore also deserved absolute rule under royal authority.

By the time of the principal English settlements in North America, however, the doctrines of John Locke had begun to gain ascendancy over those of Coke. Rana gives a less than full account of those doctrines and, crucially, never really refutes them. Locke argued that God gave the world to men in common not only for self-preservation, as Rana sees, but for “the Support and Comfort of their Being.” The right to property derives from this common gift: In order to survive in nature, each person takes what he needs; this act of taking, this labor, makes what we take our property, and no one needs the consent of another in appropriating needed natural objects. Having “mixed his labor” with nature, man adds to nature; the common possession of nature is of no use to real human beings if they as individuals do not undertake this appropriation. You can eat my lunch, but not on my behalf. The Indian who kills a deer thus owns that deer. By nature, such appropriation is limited to one’s own use; no waste or destruction can be rightful. This goes for the appropriation of land as well. You own it if you mix your labor with it, thereby “inclos[ing] it from the Common.” No one else has just title to that land.

This reasoning Locke set against the absolutist monarchism of his philosophic opponent, Richard Filmer, who claimed that dominion over land inhered in patriarchal rule, not individuals’ labor. Not so, said Locke: Man as such is “the great foundation of property”; it is better to have a large population than a large territory because human labor is more valuable than the land it works; “of the Products of the Earth useful to the Life of Man 9/10 are the effects of Labour.”

“The great art of government,” wrote Locke, is to employ “established laws of liberty to secure protection and encouragement to the honest industry of mankind.” That is to say, natural right can be enhanced by conventional or positive right. So the British Empire—by establishing civil property rights for English settlers, and guarding them by absolute monarchic rule over Indian tribes and nations that had a sense of territory but not of property—advanced human prosperity and liberty. The British settlers objected mostly when the king started to treat them more like Indians.

Rana ignores Locke’s argument, heading straight for Locke’s conclusion: that property rightly belongs to the industrious and rational, not the idle. But, as Rana observes, Locke bases his understanding of the right to conquer nomadic and hunting peoples on the right to property. American Indians “are rich in Land, and poor in all the Comforts of Life,” Locke correctly observes; in their lack of civilization, they unknowingly leave vast tracts of land in a condition of relative waste, thus depriving mankind of the best use of that land. They are rather like the aristocratic idlers of Europe, a point Tocqueville would note more than a century later.

By failing to meet Locke’s argument—precisely because he argues historically not philosophically—Rana deplores English conquest of the Indians without grounding his critique in anything more solid than sentiment. And by missing the argument from natural right, Rana inclines to think of conquest and rule over the Indians in conventional terms—human laws, social class, racial hierarchy, military and political power, and the like. This makes it easier for him to attack such conquest and such rule, but at the expense of real engagement with the rational content of the argument for British empire.

Finally, by claiming that the Indians exerted socially-based rather than individually-based dominion over the land, he can make his stance consistent with his own democratic socialism, but at the expense of avoiding the question of whether socialism actually serves human interests better than a regime that protects private property. There being no economic grounds for arguing that such is the case, and there also being no evidence that patriarchal Indian societies were more democratic than English colonies, Rana needs to argue that socialism has greater democratic potential than a regime entailing private property—a claim that ends up supported in this book merely by our willingness to imagine that such might be so.

Just as Rana fails to be sufficiently abstract or philosophic in one sense, he is all too abstract in another. He tends to dismiss the colonists’ physical insecurity. “Surrounded by French imperialist, Catholic settlers, African slaves, and Indian tribes,” the colonists viewed such outsiders “not simply as foreigners but as enemies.” Their “powerful and expansive vision of republican freedom”—which in fact Rana endorses—combined with “a restricted account of who was entitled to such freedom.” Even as the imperial metropole in London began to develop “more inclusive forms of imperial rule and to expand the rights afforded to Native Americans, Catholics, and, to a lesser extent, slaves,” the colonists, who actually lived alongside these foreigners, treated them more harshly.

But again, were they wrong? Were the French Catholics of Canada and Spanish Catholics in Florida accustomed to republican government? Was the slave owners’ dread of slave rebellion not understandable, even if slavery itself was wrong (precisely on Lockean grounds)? And why were the Indians not dangerous? When the Declaration of Independence says that “the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions,” was it as mistaken as Rana evidently supposes? Or was warfare—including such tactics as enslavement, mutilations, and forced abortions—not characteristic of those Indian nations and tribes the Americans called savage (as distinguished from those they acknowledged to be civilized)?

The lack of philosophic ‘abstraction’ of one face of Rana’s argument, along with the excessive abstractness of its other face, vitiates his account of the American Founding, the Populists, and the New Deal state, in turn. In each period, he valorizes thinkers and groups that urged small-scale and democratic communities as against the modern state, while often deploring the moral principles espoused by those persons. Throughout, he tends to ignore the fundamental problem that the modern state has imposed since its inception: How exactly will small communities, whatever their regimes, resist encroachment by that ever-more-intrusive state?

So, for example, regarding the Founding period he praises the Shaysites and Whiskey Rebels, who advocated Rousseau-like small communities—themselves with very active governments, but closely controlled by popular assemblies—and criticizes the proponents of the 1787 Constitution, calling them “coastal elites” who worked against the interests of the “locally-centered majoritarianism” of frontier settlers. Studiously avoiding discussion of the Washington administration’s policy of aid to the Five Civilized Tribes in the southeast—civilized because they engaged in the settled way of life commended by Locke—Rana focuses rather on Supreme Court Chief Justice John Marshall’s opinions in two landmark cases, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). Marshall and his colleagues attempted to establish semi-sovereign status for the Cherokee and thereby avoid their removal. Removal of civilized tribes or nations was unjust by Lockean and American criteria, unlike the removal of genuinely savage—that is, non-agricultural and warlike—tribes. As Rana points out, taken together the two cases outlined a policy more or less identical to the British imperial policy that the Americans had rejected during the colonial period: the status of “domestic dependent nations” for the colonials. Just as the civilized, ‘Anglo’ colonials had exhibited the ability to govern themselves, and therefore rejected being placed on the level of uncivilized peoples, so too did the civilized Cherokee have the right to reject the status of dependency. In favor of such, Marshall could only argue the right of conquest, but of course this right must be congruent with natural right—the very standard Rana scants. Rana should argue that the Civilized Tribes deserved the Washington policy, but having overlooked that policy in the first place, he can have no recourse to it. He is of course on entirely solid ground in condemning the Jackson policy of “removing” the Civilized Tribes.

Similarly, Rana condemns the early U. S. naturalization laws, which extended citizenship to “white persons” only—a clear violation of the principles of the Declaration of Independence—if “white” is understood in the purely physical sense of skin color. In fact, as Thomas G. West has observed, Founding-generation lawmakers often used “white” to mean “European.” [1]  But “European” is primarily a cultural category, as Rana sees when he accurately describes the Americans’ claim: “If the republican goals of economic independence and freedom as self-rule necessitated territorial expansion, they also required enough people to work the land and to participate in projects of conquest. Again, for an ethnically defined settler society, not all immigrants were uniformly welcome, only those seen as culturally assimilable and thus prospective co-participants in activities of settlement.” “Culturally assimilable” is exactly the point: Any political community will have a regime, and any regime will valorize those who adhere to its way of life, condemn and punish those who do not. But “culturally assimilable” does not entail skin color, as those white, often slaveholding, Founders knew very well. They acted in accordance with this knowledge rather more fitfully than one might like, but the standard of natural right was there, and enunciated by themselves.

Rana prefers the purer, local-democracy ideas of such figures as William Channing and Orestes Brownson to the extended-republic federalism of the Founders. In defending the former, he must endorse their claim that majoritarianism defends rights better than do republican checks and balances. Rana writes that for Manning and his allies, “virtue was understood not as the excellence of high statecraft or political leadership but rather as the full awareness by producers of their own interests and of how to achieve those goals”—a perfect expression of Marxist ‘consciousness’ artfully woven into an account of “the new populist ethic.”

Rana dismisses the argument of Publius in The Federalist —that a continent full of such tiny democracies would be unstable and hence the prey of European empires. He also dismisses Hamilton’s Locke-based point, that “the prosperity of commerce”—and therefore of an extended commercial republic, capable of defending itself against other modern states—”is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares.” Such ideas, Rana maintains, only opened the door to the “wage slavery” of workers under industrial capitalists later on. Poor white males, he says, failed to ally themselves with women and persons of color, preferring the continuation of the imperialist-settler project dangled in front of them by the elites.

One such lure would be the doctrine of Manifest Destiny. Unaccountably, Rana fails to connect the race-dominance claims of Manifest Destiny’s advocates—Ralph Waldo Emerson, Stephen Douglas—to the emergence of theories of racial dominance shared not only by northern Democrats but even more violently by southern Democrats, notably John C. Calhoun. (The book manages not to mention Calhoun at all.) ‘Race theory’ (as it has come to be called) obviously contradicted the Founders’ idea of natural right—that all men are created equal—and underlay Chief Justice Roger Taney’s claim that the black man has no rights the white man need respect. Rana does discuss Taney’s 1857 Dred Scott decision quite cogently, emphasizing not only its importance in the slavery debate but its congruence with frontier settlers’ attempts to undermine the authority wielded by the national government over the territories. The settlers who fought on the Confederate side in the Civil War—and of course there were settlers on both sides—did not, we recall, take up arms on behalf of federalism alone. They fought on behalf of federalism misconceived as a carapace for slaveholding, a clear violation of Lockean-American natural (and not merely ‘Anglo’ or even ‘white’) rights. Even more urgently, Americans fought that war over the maintenance of the Union itself. Union was the only barrier against the devolution of North America into a European-like battlefield of rival nation-states—or, indeed, a pre-settlement North-American-like battlefield of rival nations an tribes.

Turning to the period after the war, Rana especially admires the early Populists for their “mobilizing politics” in defense of “universalizing republican freedom” and for their resolute anti-imperialism. He doesn’t mean Populism as transformed by William Jennings Bryan and other later politicians but the earlier Populism of, again, William Manning, Thomas Skidmore, and Orestes Brownson. These writers associated themselves with the pre-existing organizations of the 1880s like the Knights of Labor and the Farmers’ Alliance, which stood up for labor but opposed the “white supremacy” language heard in “the discourse of the postwar South.” This “racially unified movement” aimed to “end agricultural peonage and to destroy the Democratic Party forever.” These original Populists also eschewed the older republican esteem for moral virtue, arguing that interest, “not principle,” must animate any practicable political movement. At the same time, the self-interest of the working majority (they claimed) would approximate the common good to the greatest degree possible. Accordingly, education—undertaken, crucially, within the movement—would be strictly partisan, “ensuring that all individuals, not simply the educated few, understood their own interests and how best to achieve them.”

This abandonment of natural rights as the moral foundation of republicanism eventually led Populists to an ever less defensible position on race, as seen in the career of Georgia Congressman Thomas E. Watson, who started out an advocate of working-class interracial alliances but turned into a notorious race-baiter. On the matter of imperialism, Populists opposed the Spanish-American War, claiming that the peoples newly independent of Spain needed no “white tutelage” in republicanism. For Nebraska politician William Neville, the “call for self-determination”—whether of Filipinos abroad or Indians at home—”had no caveats.”

Organizationally, the Populists attempted to build a political party that would overcome the modern state by strengthening non-hierarchical, local political units. “Just as the party was”—in other words, hoped to be—”a government behind the government, organizations such as the Farmers’ Alliance and the Knights of Labor embodied the government behind the party.” The intention was to establish “a form of popular politics in which laborers were multiply organized, able to assert control at various local, state, and national sites of decision making, and thus made directly responsible for the party and the movement.” Bolshevism without a Central Committee, one might say. These “countless parallel institutions” were the movement’s attempt to combine “participatory democracy with mass politics.” But without a Central Committee, how could these countless institutions stay united?

In Rana’s estimation, the movement stumbled because the cooperative economics of the Farmers’ Alliance failed “to become self-sustaining and profitable.” Failing to compete economically with capitalism, Populists could only attempt to control and defeat it with statism—by trying to bring about a state powerful enough to bring corporations under popular control.  But this obviously militated against localism, community self-government, leading away from Populism and toward Progressivism and the New Deal. As Rana expresses it, the main predicament of the first forty years of the twentieth century in the United States would be, “What constitutional structures should govern a postsettler society and what account of freedom could justify these structures and ground a new ethical basis for citizenship?”

It might truly be said that constitutional structures, per se, were of little interest to the Progressives. If you believe history is inevitably marching toward some desirable tomorrow-land, then restrictive old things like structures tend to get in the way. Rana quite reasonably points instead to the Progressives’ interest in recasting the public schools (not to be governed by a political party or a set of labor unions but by a new class, a class of professional teachers animated by—no surprise, here—Progressivism) and in combining direct political participation with masspolitics (as in the devices of initiative and referendum, the popular recall of public officials, and the popular election of U. S. Senators). The labor movement had been broad-based to begin with; Progressives added professionals to the coalition.

How to keep these disparate elements together? The answer was to conceive of a workable, unified majority of consumers of goods and services instead of an uncomfortable agglomeration of producers and service-providers. “Yet this perspective faced a basic challenge,” Rana observes, drily. “The public’s primary activities as consumers appeared to entail little more than a wise rotation of legislators and the consumption of products…. One was left to wonder whether the practice of consuming would provide a meaningful ethical and educative grounding in free citizenship.” One hundred years earlier, Tocqueville had wondered the same thing, And one hundred years later, after decades of politicized ‘consumerism,’ one might still wonder.

In Rana’s account, when the Progressives got stuck on that problem they turned to nationalism to try to solve it. But given the symbiotic relation of nationalism with statism, and the inclination of statism to weaken the fiber of civic virtue, this was a bad choice. Likewise what Rana regards as the humanitarian imperialism of many Progressives—visible most memorably Theodore Roosevelt, whose advocacy of “the strenuous life” (his answer to creeping bourgeois incivisme) did little to foster the quieter virtues of peacetime self-rule. Although Woodrow Wilson’s preferred solution, the liberal internationalism of the League of Nations, does not figure much in this book (Rana eventually shows he has his own brand of internationalism to promote), Rana does offer an excellent discussion of the Supreme Court’s turn-of-the-century Insular Cases, which “provided the legal framework for how new territorial possessions would be governed” absent the intent to integrate them fully as new states.

This notwithstanding, Rana will have none of the obvious point that Americans did not intend to hold onto places like Cuba and the Philippines and in fact did not hold them for very long. In other words, the great imperial period of the United States occurred between 1789 and 1890 but, pace Rana, this really was, on balance, what Jefferson called it: an empire of liberty. The conquests of 1898 and thereafter were almost without exception non-imperial, indeed anti-imperial, as Americans kicked Spaniards out of their New World empire and later kicked the Germans out of France (twice) in order to establish or restore republican self-government in the conquered lands.

Rana’s Progressive-era hero is Randolph Bourne, who picked up some of the early Populist arguments while adding a sample of Marxist anarcho-syndicalist spices to his shopping cart. Bourne called not for nationalism or liberal internationalism, but for a “Trans-National America” consisting not of individuals enjoying protection of their natural rights but of discrete immigrant communities enjoying legal protection for cultural practices developed “historically” in their native lands. “The first international nation,” Bourne called it. A celebrator of “universality and cultural openness,” Rana’s Bourne does not seem quite to know why his political vision would be good, except that he is sure that it will be “life-enhancing.” In Bourne we see the beginning of the Left’s turn toward a democratized Nietzscheanism or egalitarian vitalism, supplementing its Marxist socialism. “International citizenship” doesn’t sound like an oxymoron in this brave new world, in which individuals would see themselves “as global rather than national partisans.”

Exalted by such vapors, Rana understandably looks down upon the more hard-headed policies of Franklin Roosevelt, with his statist New Deal and peacetime preparations for the coming global war. Rana points to three New Deal milestones that even today are “the parameters [of] our current mode of presidential government,” what he calls “the plebiscitary presidency”: 1) the Supreme Court decision in United States v. Curtiss-Wright Export Corporation (1936), which raised the President to a position of advantage over the other branches of government respecting foreign policy; 2) the Court’s acquiescence in New Deal statism in the aftermath of the 1936 re-election landslide, the failed but sobering 1937 Court-packing scheme, and the appointment of New Deal partisans to the Court during FDR’s third term; and 3) the remarkable increase in the size of the White House staff under FDR, which gave institutional heft to these legal-political opportunities.

Rana astutely describes FDR’s famous Commonwealth Club speech of 1932, in which the future President redefined ‘liberalism’ to mean Progressivism with teeth—as not merely Hamiltonian means to Jeffersonian ends, but as the ideology of a national security state in the broadest sense of the word—a state that would provide the fullest possible protection not only against foreign enemies but against unemployment, poverty, disease, and most other ills to which flesh is heir. The liberty envisioned by the new liberalism consisted not of “the social practice of wielding public power”—Jeffersonian political liberty—but “the private endeavor of ‘personal living.'” Unearthed here is the remarkable 1939 book by Robert Lynd, Knowledge for What?, advocating the rule of social engineers or “expert administrators” over the national economy. In Lynd’s words, “undiscriminating adherence to the forms of democracy operates to cripple the expert performance of essentially democratic functions”—a bit of verbal legerdemain worthy of FDR himself.

Rana accurately distinguishes the New Deal from both Hamiltonian federalism and Jacksonian democracy, FDR’s “idea of a direct representative relationship between president and people,” which was “at the heart of [his] democratic vision of the new social welfare state… fundamentally undermined the Federalist theory of democracy, particularly the notion that no existing body or branch of government enjoyed sovereign power.” As for Jackson, his ‘spoils system’ may not have been pretty, but it was the antithesis of “an independent and unelected bureaucracy that could not be controlled by popular power.” The New Dealers, as Rana appreciates, recast the presidency in the forms of “executive leadership and administrative hierarchy.” As regrettably, “The public as an active and continuous participatory presence had been recast as the recipient of security protection from economic and foreign threats.” New-Deal government was Progressivism without the people. As a result, “the project of equality has concentrated increasingly on distributing more meritocratically the country’s few positions of corporate and governmental power,” which has amounted to altering “the composition of socially privileged groups rather than… undermining privilege as such.”

In foreign policy, America treats outsiders “as instruments for the achievement of national ends,” thus combining “some of the most problematic ideological features of the settler past without its emancipatory aspirations.” This is hardly a fair description of an American foreign policy that, however ineptly conceived and executed, has at least aimed at emancipating some of the most oppressed populations on earth. But even granting Rana’s characterization, his remedy is hardly less “problematic.” He would revive self-rule in America—a good idea in itself—but he immediately invokes the example of the final and decidedly Marxist version of W. E. B. DuBois, who left for exile in the “newly independent Ghana” of the future Lenin Peace Prize laureate, Kwame Nkrumah, author of the 1965 Leninist tract, Neo-Colonialism: The Last Stage of Imperialism. Ghana, in the author’s estimation, was “a symbol of anti-imperial unity,” by which he evidently means Western imperialism of the sort that prepared India for democracy, as distinguished from Nkrumah’s preferred Soviet imperialism, which left scars on Central and Eastern Europe visible to this day.

Tapping back into Bourne, Rana calls for synthesizing the “settler ideology” of self-government with a “project of political, legal, and economic inclusion for immigrants.” He contends that this would pose a meaningful challenge to “the current structures of [America’s] internal privilege, workplace authority, and even global supervision.” This borderless “experiment in political openness” would deploy anti-nationalist and egalitarian multiculturalism in a manner that would, somehow, form a political entity that could defend itself against external or internal enemies. Under this regime, the principle of communitarian equality would replace the principle of individual equality, while (again somehow) avoiding the descent into tribal warfare seen in North America when Europeans arrived here, and seen in the Middle East and parts of Africa today.

Although the whole thing strikes this reviewer as implausible—better designed to destroy such liberties as we still enjoy rather than enhance them—this isn’t the first time that absurd enthusiasms have spurred impressive research. The Two Faces of American Freedom, misguided as it is, presents a welcome treasure of that.

 

 

Justin B. Litke: Twilight of the Republic: Empire and Exceptionalism in the American Political Tradition. Lexington: University Press of Kentucky, 2013.

 

This lively scholarly polemic takes what is often called a ‘paleoconservative’ view of American political history. American conservatism generally opposes progressivism (latterly called liberalism) in affirming what Russell Kirk called the permanent things—first of all the Biblical God, but also the traditional customs following from God’s commandments and “the laws of Nature and of Nature’s God” inherent in His creation. Paleoconservatives typically differ from other conservatives in denying universal natural rights, damning these as dangerous ‘abstractions’ tending toward all things violent and French. Professor Litke follows this line, celebrating John Winthrop’s Puritan founding at Massachusetts Bay, downplaying the Founders’ claim that all men are created equal, and above all by charging Abraham Lincoln with a sort of political heresy in emphasizing precisely that ‘abstract’ claim—and thereby derailing the Winthropian-Christian American tradition while preparing for the universalist/imperialist claims of Albert Beveridge’s Progressivism.

He begins with a factual error, and an important one: “From colonial times up to the turn of the twentieth century, the country’s particular way of acting both domestically and in foreign affairs was fairly circumscribed and inwardly focused.” This is simply and obviously wrong. The period 1791-1890 saw American imperialism at its apex, as Americans moved from the Atlantic to the Pacific coast, pushing Amerindian nations and tribes westward at first, then into small settlements where many of them remain to this day, effectively protectorates of their conquerors. It is true that Americans undertook overseas expansion after 1890, but Hawaii and Puerto Rico scarcely compare to the lands acquired before that, and Americans proceeded with their planned relinquishment of Cuba and the Philippines as soon as they had some assurance that no other world power would take them.

Nonetheless, Litke accurately observes that Progressivism marks a sharp turn away from the principles of the Founders. What happened?

He begins with “the problem of American exceptionalism,” a phrase Walter Sombart coined in 1906 as he wondered why an advanced capitalist country seemed immune from socialism. Today, Litke remarks, the phrase has two meanings. In its comparative-politics sense, it refers to Sombart’s question. The United States deviates from the pattern of economic, social, and political development expected by Marx, who posits historical ‘stages’ consisting of feudalism, capitalism, socialism, and finally communism, all determined by struggles between economic classes. Since Marxism itself has taken a beating in the past thirty years or so, this meaning of exceptionalism no longer prevails. Rather, exceptionalism now refers to uniqueness. Unlike other ‘advanced’ countries, Americans remain in large measure a religious people, even if their religiosity has declined in the past 100 years. Following from this religiosity, Americans describe themselves as exceptional in three ways, considering themselves as exemplary in proving it possible to follow the Christian way of life in modernity, in maintaining political and social institutions that differ from those widely established elsewhere, and in undertaking a mission to civilize, educate, “or otherwise dominate the world politically or economically.”

Preliminary to addressing this problem, Litke denies that philosophy understood as the ascent from the cave of custom and opinion is possible. In this he follows such non-Leftist historicist thinkers as Eric Voegelin, Willmoore Kendall, and George Carey, who argue that political philosophy “is a tardy development in the history of a people,” a thing produced out of the customs and opinions of the communities in which it arises. “A purely philosophical method is limited to analysis of particular moments in the life of a people—and late moments at that.” Ideas aren’t ideas in the Platonic or any other sense philosophers defined prior to the very late eighteenth century; rather, they are expressions of “symbols” and “myths” rather than realities above or behind symbols and myths. The claim that philosophizing amounts to a moment assumes what it attempts to prove, namely, that philosophic thought is time-bound or historical. Accordingly, in Litke’s phrase, the judgments of philosophers are really only “judgments of history.” Paleoconservative thought thus combines classical conventionalism with historicist theory, in contradiction to progressivist thought, which combines historicist theory with a vision of a perfected ‘end of history.’ But it shares with the historicism of the Left an egalitarian appeal of its own: Litke seeks “the real political theory of a people,” instead of “merely one person’s political thought,” for “language symbols” “that are not dead letters but sprang forth as active principles of the life of the community.” Not for him the philosophic claim that a thinker can escape the ‘cave.’ The claim also has political consequences; In it one sees the basis of paleoconservative’s hostility to Abraham Lincoln, who understood himself as defending an idea or proposition—that all men are created equal—and not a tradition.

Litke begins with John Winthrop, the governor of the English colony at Massachusetts Bay and often called “the first American exceptionalist” because he calls for the founding of a “city on a hill”—that is, a political community that would stand as an example to the other, erring, communities in the world, somewhat as the Jewish republic stood to the regimes of the Gentiles. “Winthrop’s writings may stand in for the truth of the way of life”—the regime—”at Massachusetts Bay.” That way of life comported with Winthrop’s aristocratic status, his life in the legal profession, and of course his Puritan Christianity; the colony was no democracy, as the franchise and officeholding were restricted the those approved by the church. Itself a product of British imperialism, it furthered that imperial project in its dealings with Amerindians, claiming the hunting lands of local tribes under the principle of vacuum domicilium and fighting a war against the Pequots, whom they scattered or sent to slavery. Litke never quite gets round to mentioning those last couple of points, emphasizing the intended Christian exemplariness of Winthrop’s intention. Indeed so: Winthrop would never have written the letters George Washington later sent to the several religious congregations in the United States, including Catholics and Jews.

Winthrop rather intended, first, to carry the Gospel to the New World as a “bulwark against the kingdom of Antichrist which the Jesuits labor to rear up in those parts” and as a corrective to the Church of England, which, as Litke remarks, “seemed to be edging toward rapprochement with Catholicism.” “The notion that America is a ‘redeemer nation’ need not mean that either the Massachusetts Bay Colony or the United States of America becomes an imperial power.” Indeed not, but they both were, as Litke admits, following Winthrop: “The land in New England lies uncultivated while England’s land groans under the pressure to feed its inhabitants. It would only be right to move westward and improve New England’s unenclosed—and, therefore, free and unclaimed—land; doing so is the act of a good steward of God’s gifts in Creation.” By contrast, the slothful, insufficiently devout Virginians suffered from failing to have established what Winthrop called “a right form of government.” The right form of government must have the right spirit, the spirit of agapic love. Although “it is difficult to imagine even a single fragment of society seeking to live today according to his vision,” it “occupied a prominent place in the American imagination in the early days of the Constitution and during Tocqueville’s time” as “the idea of a Christian political order in America.” As in the early Christian Church, mercy and love were to serve as the bonds of this community, thanks to the grace of God. By creating nature, God made distinctions not only among species but within them; human beings naturally divide into an order of rank. But “His spirit of love,” the “bond of perfection,” brings unity whereby men of diverse and unequal gifts form part of God’s overall plan of salvation.

It is easy to see why this didn’t work, precisely by consulting the Bible. As the epistles of Paul the Apostle show, the early Church had its share of heretics and backsliders. So did Massachusetts Bay, quite apart from those worthless Virginians to the south. The Bible teaches that the Kingdom of God will come only after Jesus’ return and His creation of a new Heaven and a new Earth. Winthrop’s founding may not be utopian (Litke insists it was not), but it was fleeting, and, according to the Bible Winthrop and his associates consulted, it had to be. “We must knit together in this work as one man,” Winthrop urged, but men never do that for long. Winthrop soberly warned against the real danger of such decline, the loss of this Christian example. He depends upon God’s providence to prevent such a calamity; “his theory does not claim to sway history but only to read it and, thus, provide the opportunity to act in accord with it.” The world watches the Puritans, to see if they succeed or fail, he thought. But of course if the world is ‘the world’ in the pejorative sense, then would it not want the Puritans to fail? And would it have heeded their example, had they succeeded? In any event, Litke’s principal claim, that “Puritans were exemplary, not imperial exceptionalists” can only be true if one ignores both their status as a colony and their practice of expansion at the expense of Amerindian hunting grounds.

Although Litke wants to claim that the conception of the American regime the Framers held “was continuous with the Puritans’ in many ways,” he makes it clear that it wasn’t, even in the decades before independence. The covenantal view of “the political order” remained, “taken for granted” by all Americans; yet, it was no longer “a literal covenant with God.” As he observes, representation no longer means a monarch but a republican assembly, and this means a compact or contract with fellow-citizens—under the laws of Nature and of Nature’s God, to be sure, but not with God. As Litke describes the colonial constitutions, prior to the Declaration of Independence, the Articles of Confederation, and the 1787 Constitution, “politics is, under these documents, not considered a grant of the king but an activity of the people themselves for the people’s own benefit.” But this is why they begin to think of political life as contractual, not covenantal.

At any rate, Litke asserts, that the Declaration declares not a revolution but independence. A revolution is a regime change; that being the case, he contends, the Declaration didn’t change the American regime or regimes, which consisted of an alliance of thirteen free and independent states, united only in declaring that independence and in fighting the war under the direction of a Congress consisting of men representing the peoples of those states. This overlooks the Declaration’s clear claim that Americans constitute “a people”—one, not thirteen. It also overlooks the Declaration’s announcement that Americans are changing their government, as indeed they must be, if they no longer recognize the British imperial monarchy but intend to found a federation of republican states. In the name of what did they declare and fight for independence? He claims that although the self-evident truths of equal unalienable rights seem to amount to “universalistic claims” the introductory phrase “We hold these truths…” belies their universality. Litke has confused himself. If I say “I hold that God exists” I may well understand that you don’t, but that doesn’t mean that I am not making a universalistic claim, only that I am not assuming that everyone else concurs with it.

To his credit, Litke sees that there is no “theory of history” in the Declaration. Providence, yes; ‘history,’ no, not in the historicist sense. The Declaration begins “When in the course of events,” not “When in history” because the Founders are natural-rights men, not historicists. “There is no air of inevitability or notion that this move [i.e., declaring independence]is the last, first, or middle term of any inexorable historical syllogism.” In this sense, the Declaration is not universalistic at all. Oddly, Litke identifies only two places in the Declaration that “speak of God,” although there are at least three, implicitly four. God is creator, lawgiver, judge. He is also a providential God, a Person who cares for His creation. True, “Congress acts on the authority of the people it represents,” but the people’s authority derives from their Creator-endowed, self-evident, unalienable rights, shared by all human beings at all times.

This falsifies Litke’s claim that under the Declaration the American people only acted as one people, whereas under the Constitution they are to be one people. The American people declared their union both in the Declaration and before it. What they did in ratifying the Constitution was to re-allocate the powers that belonged to themselves by right, subtracting from the powers they had allocated to the several states and adding to those wielded by the federal government. They did so in order to better secure their unalienable or natural rights, which, the ‘federalists’ saw, were insufficiently protected under the Articles of Confederation.

“The important documents of the American founding have little to say about the place of the American people in history, the universality of their task or aspiration, or the role that God is to play in their polity.” But if ‘history’ means the course of events, the Declaration and other founding documents have plenty to say about Americans’ place in it; only if ‘history’ means a philosophic concept, the unfolding of an ‘Absolute Spirit’ or some other compelling force, do Americans say little—indeed, precisely nothing—about it, inasmuch as they didn’t think in terms of historical laws but rather in terms of the laws of Nature and of Nature’s God. Those laws are universal laws, ruling all human beings as such. As for Providence, the Founders are less presumptuous than the Puritans, relying on God’s blessing but not expecting it. “Transcendence and universality have not been abandoned, but they have been separated out of the political sphere, except at it periphery.” Not quite: they have been separated out of the political sphere as its framework, its standard, and (they hope) its guardian.

As with the Puritans, Litke also claims that the Founders were not imperialists. This is even more obviously wrong than his assertion about the Puritans. Jefferson speaks explicitly about the United States as “an empire of liberty,” and a people’s elected representatives didn’t enact the Northwest Ordinance or the Louisiana Purchase in the absence of  imperial ambition. That their imperial ambition differed from European imperial ambitions by proclaiming an empire of liberty, in which new territories would eventually enter the Union as equal partners with the original states and not as perpetual colonies, demonstrates that the Revolutionary War really was revolutionary, a genuine regime change.

It is on this dubious foundation that Litke attacks Lincoln’s “derailment of the tradition”—a tradition that even by his own account does not exist in any but the most general sense, on the level of paleoconservative ‘symbols.’ Lincoln (correctly) identifies the juridical origin of the American Union in the 1774 Articles of Association, but Litke is having none of that, mistakenly claiming that Lincoln presents the several forms of the Union—the 1774 Articles, the Declaration, the Articles of Confederation, the U. S. Constitution—as stages in American political development. “These documents do not enact, reenact, or institute the same political order at their respective moments,” Litke rightly observes, but neither Lincoln nor anyone else ever claimed that they do. Nor does Lincoln make the key historicist move, which is to claim that these ‘moments’ form part of an inevitable unfolding of a ‘historical spirit’ immanent in a process or progression. “If ‘the Union’ came before the Constitution, where did the union come from?” Not “from the Articles of Association of 1774,” as Litke says Lincoln imagined, but from the peoples of the colonies. Can the peoples of former American colonies and territories, now states, dissolve the political Union that organizes them as one people? Of course, and Lincoln never denies it. But the various segments of the American people would need to consent to disunion, even as they consented to Union. In 1774 the newly united people of Great Britain’s North American colonies had not declared their independence; they remained subjects of a monarch in the British Empire, as Litke says. “They wanted continued union with the Crown.” But they were nonetheless united in a new “association” under that Crown. That association asserts rights against the regime of which it is still a part. A people might or might not be sovereign.

“Lincoln is wrong about the United States. The aim of the United States was not at all operatively formulated as a reified proposition until Lincoln did it” in the Gettysburg Address. This is nonsense. The Declaration of Independence enunciates self-evident truths, stated in ‘abstract’ or propositional terms as part of a logical syllogism, with major premises, minor premises, and conclusions drawn from them. If that doesn’t amount to a “reified proposition” (as in a geometric proof or a syllogism), what does? Captive to paleoconservative symbolology, Litke can only look at the “universal or transcendent significance” of the principles or propositions of that syllogism as “a quality previously reserved to the religious sphere in America,” now “infused into the political sphere,” an impetus for a “kind of pseudoreligious mission to be given to government.” “Lincoln is one of the chief sources of what will become the idea of imperial American exceptionalism.” But quite obviously ideas need have no religious or pseudo-religious content; neither Euclid nor Aristotle has recourse to divine revelation. They reason from propositions, as did the Founders and Lincoln, although as political men the Founders and Lincoln also needed to reason practically or prudentially, forming rational policy based on the circumstances before them.

Litke’s final topic, Senator Albert J. Beveridge’s race-theory variant of Progressivism, accurately summarizes Beveridge’s ambition to see an American empire extending not only to the Philippines but to Latin America. Litke ignores the novelty of Progressivism, pretending that “expansion and aggrandizement of American political power is very different from the American political tradition”; what is novel (except among Southern secessionists and some of the older Manifest-Destiny Democrats like Senator Stephen A. Douglas) is the racial and historicist foundation of this new imperialism. Litke further confuses matters by claiming that Beveridge’s position was more or less identical to that of Theodore Roosevelt, who was no racist and had no interest in permanent annexation of foreign territories as colonies. He wrongly exonerates Woodrow Wilson of adherence to ‘race theory,’ but again attempts to add Wilson’s own quite different historicist ‘liberal internationalism’ to more or less the same category as ideas of Lincoln, Beveridge, and Roosevelt: namely, “idealism.” But Lincoln had nothing to do with the historicism propounded by the German Idealists, and until approximately 1911 (that is, after his presidency) Roosevelt had nothing much to do with it, either. [1] “Lincoln made it possible to conceive of America as something transcendent,” but Lincoln claimed no such thing; rather, Lincoln looked to transcendent or abstract principles or self-evident truths (as the Founders had done), truths which, owing to their very transcendence or abstraction, could never be embodied by any political regime, American or other. The embodiment of ideas as ‘ideals’ forms the core of historicism, which Beveridge and Wilson endorsed (albeit in very different ways) and which Lincoln never, and Roosevelt only sometimes, endorsed.

Alluding to Lincoln’s Second Inaugural, Litke writes, “The wounds of the Civil War required bandages not previously known because the war presented a problem—a real disunion—that we had not encountered before.” On the contrary, America’s first civil war, the Revolutionary War, saw the appropriation of the property of American Tories and their departure for Canada and elsewhere in the British Empire. What is more, the real disunion which culminated in both wars arose from a fundamental difference: a dispute over what regime would rule the United States. Monarchy or republic? Oligarchy (as in the slaveholding planters’ South and the Senate they controlled for decades) or republic? Binding up the nation’s wounds was a necessary task at the end of both civil wars. In both cases, new ruling institutions were required in order to buttress the new regime: first the Articles of Confederation and then the Constitution in the founding period, then the Civil War amendments to the Constitution and the attempt to enforce the Constitution’s republican guarantee clause in Reconstruction. (Litke is technically correct in saying that “in Lincoln’s presidency there was no new American political order put in place in an official document,” but only because Lincoln was assassinated before the amendments and Reconstruction took effect.)

“The central question is twofold: first, whether… habits, customs, and institutions [of self-government] may be imposed by a foreign power and, second, whether it is the particular responsibility of the United States to do so. The answer to these questions was formerly settled in an operative no,” an answer supposedly reversed by Beveridge, Roosevelt, and Lincoln, supposedly following Lincoln. The real answer has always been an “operative” and principles “yes,” from the Washington Administration’s efforts to change the regimes of the Five Civilized Tribes in the American South to today. Regime change may indeed be imposed by a victorious power in a just war. The Civil War, World Wars I and II, and several other wars in the course of events involving the United States were just wars undertaken against bad regimes, in many instances regimes which had attacked the United States.

‘Paleoconservative’ historicism provides a sober corrective of ‘progressive’ historicism.  Paradoxically, both get ‘history’ wrong. In a conversation with a ‘paleocon’ professor who used a collection of writings for a college reader on “The American Tradition,” I asked, “Who gets to choose what goes into the collection?” He smiled without answering, and understandably so, since he was the editor of the volume in question. Someone always must make the ruling choice, by some set of criteria that amount to ideas, whether they are admitted to be ideas or not. “Permanent things,” indeed.

 

Note

1. For a comparison of Roosevelt, William Howard Taft, and Wilson, see Will Morrisey: The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government. Lanham: Rowman & Littlefield, 2015.

 

 

 

 

Originally published by Constituting America, August 7, 2015. Republished with permission.

 

Cheered on by Congress and the Supreme Court and abetted by what has become very nearly a fourth branch of government—the federal bureaucracy or administrative state—the executive branch of the United States government has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights. In The Federalist, Publius argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives and real powers to resist such encroachment. This worked, until it didn’t, most obviously during the second administration of Franklin Roosevelt.

Whether it is the Environmental Protection Agency ignoring Congress and issuing edicts on global warming, federal land grabs in Alaska, bureaucratic regulations on immigration, the confused and onerous burdens of the Common Core program in our schools or the Affordable Care Act in our hospitals and doctors’ offices, warrantless surveillance of American citizens by the National Security Agency, partisan misuse of the Internal Revenue Service, or the overuse of Congressional-Executive agreements and sole executive agreements in lieu of treaties, we have witnessed an executive and administrative power that no longer merely executes laws enacted by Congress but itself legislates, with or without Congressional organization, and often with no rebukes from a complaisant Supreme Court.

Why is this happening?

We can enter the trail at any one of the points listed, but let’s use the last one, the international ‘agreements’ that have largely taken the place of treaties since World War II. Some fourteen years ago, John C. Yoo—then as now a professor at Berkeley Law School—wrote an illuminating article in the Michigan Law Review discussing the history of treaties and Congressional-Executive agreements. [1] Yoo later joined the George W. Bush administration in the Office of the Attorney General and authored rules governing the War on Terror and authorizing the use of “enhance interrogation techniques” as one instrument of that war. He is no libertarian when it comes to Constitutional law. This makes his work all the more useful here, exempt as it is from any suspicion that it was authored by an enemy of executive power.

Among the principal defenders of the constitutionality of such agreements, Yoo mentions Bruce Ackerman, Sterling Professor of Law and Political Science at Yale Law School and author of (among other books) The Failure of the founding Fathers, We the People: Foundations and its sequel, We the People: Transformations. Ackerman argues for a constitutional theory that combines the popular sovereignty of Senator Stephen Douglas with the Progressivism of Woodrow Wilson and such prominent recent Supreme Court Justices as William J. Brennan and Thurgood Marshall.

As Yoo documents the matter, between 1789 and 1839 the United States entered into sixty treaties and twenty-seven non-treaty international agreements. But “as the nation entered world War II… statutory devices or even unilateral executive action came to overwhelm the treaty process; from 1939 to 1989, we enacted 702 treaties but 11,698 non-treaty agreements. Writing in 2001, Yoo observes that almost all of these international agreements concerned trade (Bretton Woods, the WTO, NAFTA, and the like), but such areas as arms control, the environment, and human rights were still firmly under treaty law. Obviously, only a decade and a half later, this is no longer the case. Non-treaty agreements are now standard practice in all areas of international dealings, not just trade.

Ackerman applauds the trend. Reacting to the failure of the Versailles Treaty (with its concomitant League of Nations), progressives began a push to make international agreements legally equivalent to treaties. One might suppose that the Constitution would block any such effort, but not the Constitution in the hands of progressives. According to Ackerman, the 1944 election of Franklin D. Roosevelt not only gave popular endorsement to his intention to frame and participate in the new League-of-Nations substitute, the United Nations, but actually transformed the Constitution itself. The election, you see, was a revolutionary moment in which public popinion endorsed a fundamental change in Constitutional practice, entitling the executive and legislative branches to bypass the treaty-making power of the Constitution. By 1947, Ackerman claims, such “interchangeability” had “become part of the living Constitution”—the foreign-policy equivalent of the seeping domestic constitutional changes wrought by FDR’s smashing victory in the 1936 election, which centralized power in Washing and thus compromised federalism, transferring a considerable part of lawmaking power from Congress to the administrative state now ensconced in the capital city. A “New Deal,’ indeed: a ‘revolution’ effected not by war and not even by the ratification of a new constitution by the people’s representatives in a constitutional convention, but enacted by a pair of presidential elections.

But where does this notion of the “living Constitution” come from? And what does it mean?

The phrase predates the New Deal. It is first seen in Woodrow Wilson’s 1908 study, Constitutional Government in the United States, one of his last scholarly efforts before he left the presidency of Princeton College for the governorship of New Jersey and eventually for the White House. Wilson’s scholarship had long served the political agendum of progressivism, and Constitutional Government continued that project. Like all progressives, Wilson maintains that each epoch of human history has had its own distinctive mindset, useful for that time but largely obsolete in subsequent times. If the Declaration of Independence said that all men are created equal insofar as they possess the unalienable rights of life, liberty, and the pursuit of happiness, well, that “leaves to each generation of men the determination of what they will do with their lives, what they will prefer as the form and object of their liberty, in what they will seek their happiness.” As “history” works itself out, through the generations, “leaders” arise to guide them. “A living people needs not a master but a leader”; fortunately, “great passions, when they run through a whole population, inevitably find a great spokesman.” Whereas the Framers had so structured government as to refine and enlarge the public views—to make self-government reasonable government—Wilson is confident that passions will bring a people greatness. The leader is the most articulate spokesman for the ruling passion of his time.

Specifically, in this new, twentieth century we must abandon the Constitutional theory of the Founders. “The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and to allow to no single part or organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.” Rather, we need a government in which a leader may “bring the several parts of government into effective cooperation for the accomplishment of the particular common objects—and party objects at that.” The mechanical theory of the Founders derived from the natural-science mechanics of Isaac Newton. But “in our day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously and unconsciously follow [Charles] Darwin,” not Newton. Gravitation and the image of planets in orbit have given way to a view of nature that has become historicized or progressive—evolutionary, not stable.

Here is where the “life” of the “living” Constitution comes in. “The trouble with the [Newtonian] theory [of the Founders] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not Newton…. Living political constitutions must be Darwinian in structure and in practice.” The Constitution “is a vehicle of life, and its spirit is always the spirit of the age”—evolving, developing, aiming at ever-superior life-forms. History—now conceived as ever-evolving toward better forms of society—becomes a series of Ackerman-ish “revolutionary moments.”

To Wilson, this fits exactly with approval of government as primarily an executive—that is, a presidential—affair. The president represents the ruling political party, itself on the cutting edge of historical progress as demonstrated by its electoral success, its ability to capture the ruling passion of popular opinion. “He is also the political leader of the nation.” “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.” In particular, he enjoys “very absolute” control over foreign policy.

In Wilson’s constitutional—some might say ‘anti-constitutional’—theory we see the genesis of government by executive leadership. Buttressed by a professional bureaucracy staffed by men and women adept at “the science of administration”—the title of then-professor Wilson’s most important early essay—the president becomes the good shepherd of the spirit of the age, sharing our current ruling passion, leading us ever closer to the final ‘end’ of historical progress, that land of peace and prosperity that will leave all of our passions satisfied, all of our dreams fulfilled.

If Americans today find themselves perplexed at government by executive orders and executive ‘agreements,’ it is only because they’ve not seen how such government was carefully prepared by men like Wilson and Franklin Roosevelt, and not in some secret place as a part of some dark conspiracy, but openly and in print in writings that often date back more than a century. In those writings, progressives proposed the dismantling and replacement of the Framers’ regime, under such formulas as “The New Freedom” (Wilson), the New Republic (journalist Herbert Croley), the New Deal (FDR), the New Frontier (JFK), the Great Society (LBJ, borrowing from an earlier progressive writer), the New Spirit (Jimmy Carter), and finally a movement of “Hope and Change” (Barack Obama). New and great, hopeful and ever-changing, because progressives suppose that they know those old Constitutional principles to be obsolete, and that they see further—better than the rest of us do—and so can more surely lead us into the Future.

 

Note

1. John C. Yoo: “Laws as Treaties: The Constitutionality of Congressional-Executive Agreements.” Michigan Law Review, Volume 99, February 2001, pp. 757-852.