Stephen Macedo: The New Right v. The Constitution. Washington: Cato Institute, 1987.

Originally published in the New York City Tribune, March 23, 1988.

 

2017 Note:

Some three decades later, my reference below to “the Battle of the Bork” may be obscure. Judge Robert Bork was nominated to the Supreme Court by President Ronald Reagan in 1987. At the time he sat on the United States Court of Appeals for the District of Columbia Circuit, prior to which position he had held a chair at Yale Law School. He had made enemies a decade earlier, when he took over as Acting Attorney General of the United States after President Nixon ordered the Special Prosecutor Archibald Cox, who was investigating the Nixon Administration’s cover-up of crimes committed by persons working for the Republican Party during the 1972 election—the ‘Watergate’ scandal. U. S. Attorney General Eliot Richardson refused to follow the order and resigned, as did the Assistant A.G., leaving Bork, who was third in line, to execute the order. During his confirmation hearings before the Senate Judiciary Committee, he was questioned closely by members and eventually rejected, partly as revenge for his role in ‘Watergate,’ but mostly on the basis of his conservative approach to Constitutional interpretation, and particularly his critique of the supposed ‘right to privacy’ underlying the Roe v. Wade decision legalizing abortion.

 

Impassioned, plausible, often telling, as often wrong, this forceful essay carries on the colorful tradition of American Constitutional polemic. Possibly intended as a missile in last year’s Battle of the Bork, it raises questions that will endure long after the ill-fated judge has faded from popular memory.

“The rise to power of the New Right is the preeminent political phenomenon of the last decade,” Professor Macedo writes, ominously. In Constitutional law, the New Right would cause “a basic revision of the nature of citizenship in America” by exalting majority rule over Supreme Court decisions, thus “narrowing… judicial protections for individual rights.”

Macedo begins by attacking the “jurisprudence of original intent” proposed by Attorney General Edwin Meese and developed by such scholars as Bork and Gary McDowell. He rehearses the familiar objections: Who counts as a Framer of the Constitution? What’s the hard evidence of their intentions? What do we do about ambiguous language, changing circumstances, Constitutional amendments?

It must be said that Macedo’s complaints here turn out to be hypocritical. He claims that the Founders themselves rejected “reliance on historical intentions” as an interpretive principle. Obviously, he can make this claim seriously only if he knows what those intentions were—in this case, not to have future generations governed by the Founders’ own intentions. While he is right to say the Founders wanted Americans to engage in “reasoned, legal deliberation” when applying their Constitution to changing circumstances, this in no way abrogates a jurisprudence of original intent, unless one believes the Founders’ intent unreasonable. It is reasonable to suppose the Founders did not find their own deliberations unreasonable, so Macedo’s distinction collapses. Macedo evidently has no knowledge of Emmerich de Vattel’s The Law of Nations, published in 1757 and well-established as a part of American legal education by 1780. Vattel’s long chapter, “The Interpretation of Treaties,” outlines fair-minded principles of contractual interpretation that cut through a great deal of the tendentious blather emitted by academics today. The Founders knew that book.

Macedo justly criticizes some New Rightists, notably the hapless Bork, for their flirtations with moral relativism, for their dubious defense of ‘traditional moral values’ that rests on traditionalism merely, not transcendent moral principles. New-Right majoritarianism follows from this odd mix of skepticism and sentimentalism, both of which incline toward letting majorities do whatever they will. “The Framers were not simple democrats, but republicans who rejected the idea that popular government is necessarily good government.” Macedo sees that “moral abstractions, such as rights and justice, did play a central role in the minds of the Founders”—another unintended nod to intent, it should be noted—and do form an essential part of America’s constitutional tradition.”

The merits of this argument make it all the more unfortunate that Macedo misstates the principles of American constitutionalism in so many other respects. First, he evidently believes the Supreme Court must stand alone in defending individual rights. He ignores the central institutional principle of American republicanism, representation. As James Madison repeatedly emphasizes, each branch of our federal government consists of officials elected by the people or appointed (or elected) by their representatives. Representative government, by refining and enlarging the public views, along with the power balance among the three branches, prevents most systematic abuses of citizens’ natural rights; Supreme Court decisions form only part of this system. It is precisely because their representatives have preferred to let the courts and the bureaucracy overrule the common decencies of normal citizens that New-Right populism has proven so attractive. Representative government needs revival, not Court-ly burial.

It is true that two major institutional checks on federal government power, federalism and the indirect election of presidents and senators, have weakened drastically since the amendments added during the Progressive era. Macedo regards the Supreme Court as the best realistic check on abuse of individual rights by the federal executive and legislative branches. He overlooks the Court’s own role in (mis)interpreting those amendments as warrants for vast federal intrusions into states’ rights, and for the unconstitutional principle of ‘one person, one vote.’ If the federal government has gone too far, the Court all too often has led the way. Why would that Court prove a dependable guardian in the future?

Macedo is a libertarian. He wants the Court to defend liberty on moral issues (pornography, homosexuality) and on economic issues, too. He closely identifies liberty with morality itself, and with community, too. His belief that “liberty and community, finally, are not opposed,” that “a society of free, tolerant individuals is the best form of community,” resembles nothing so much as the 1962 Port Huron Statement, the founding document of the ‘New Left.’ Macedo is Tom Hayden in Izod Lacoste.

In one sense, this is an improvement. Today’s libertarian works to earn his money instead of marrying it. But in place of the New Left’s sentimental egalitarianism, libertarians offer nothing at all. The American Founders fought for the proposition that all men are created equal, that human rights come from human nature itself. Libertarians don’t want to hear about human nature, or the Creator-God who endows human beings with unalienable rights. Nature and God would restrict liberty, if liberty is defined as doing as one likes.

By maximizing the principle of liberty, libertarians finally undermine toleration and constitutionalism themselves. God and nature set the limits that make liberty meaningful. Without such limits, libertarians can aver “sympathy for all that is human,” but they cannot say what humanity is.

Constitutionally, libertarianism logically yields not judicial authority but anarchy, whereby each federal official may interpret the Constitution for himself and act accordingly. Macedo sees this and approves of it, thus deflating his own argument, absent any sense of representative government based upon a firm idea of human nature.

Irving Howe: The American Newness: Culture and Politics in the Age of Emerson. Cambridge: Harvard University Press, 1987.

Originally published in the New York City Tribune, February 4, 1987.

 

A “mist, a cloud, a climate” envelops American culture; Irving Howe calls it “Emersonian.” This cloud does not envelop American politics—or, at least, not so completely. Howe wants to understand what the Emersonians intended to do, what their unconscious motives were and, “pieties apart,” what they can “still mean to us,” a century and a half since Emerson published his seminal essay, “Nature.”

The appeal to nature replaces the appeal to a personal Creator-God—in Emerson’s case, the God of Christianity. By the 1830s, when Emerson resigned from the ministry and began his extraordinary career as a preacher without religion, New England Calvinism had declined, leaving nothing very plausible in its place among its former adherents. Emerson’s own sect, Unitarianism, with its incoherent compromises between revelation and reason, exemplified the implausibility of Puritanism’s successors. Any man of intellectual probity would reject them, but to reject them publicly took social courage as well, and Emerson had that.

Among these spiritual confusions, New Englanders of that time also felt a countervailing self-confidence. In defiance of Europeans’ expectations, the American republic was well established. In Howe’s insightful phrase, that republic “balances limited allotments of power against subterranean yearning for utopia,” with both its moderation and its extremism combining to make people “think they can act to determine their own fate.” “The newness,” as it was called, overbore spiritual anxiety with practical optimism.

Howe understands that Emerson intended to replace the various Christian sects with a new doctrine of his own making. But Howe does not sufficiently consider the significance of the doctrine itself. Emerson would “create himself afresh,” and urge others to do so, “in a perpetual motion of spirit.” How inexplicably finds Emerson’s appeal to be anti-historicist. But Emersonian “Nature” or “God” (he often uses the terms synonymously) is nothing other than Hegel’s Absolute Spirit without dialectic, or, if you prefer, Christian Holy Spirit without personality, and without the other two faces of the Trinity (and therefore without holiness in any recognizable sense). Emerson is anti-historical in his refusal to abide by the dictates of tradition; he respectfully rejects conservatism. But historicism—the belief that each epoch has its own truth, superseding that of previous epochs and to be superseded by that of epochs subsequent to it—frequently appeals to some notion of a ‘spirit’ which, although absoluter, perpetually moves, providing a new ‘absolute’ to each generation. Doctrines of stable essences, such as Platonic ideas, or stable presences, such as the God of the Bible, resist this extreme relativism. Emerson does not—predicting, for example, that Jesus will be superseded (“The Poet,” Essays, Second Series). Howe calls this “a permanent revolution of the spirit,” and reminds us of Marx and Trotsky. Precisely: and they too were historicists. If anything, Emerson was more radically historicist than they, more than Hegel himself, as he anticipated no eschaton, no ‘end of history’ wherein humanity would come to rest.

Howe sees that Emerson “collapsed the distinction between religious and secular, so that the exaltations of the one might be summoned for the needs of the other,” an act Howe wisely finds “more luminous than substantial.” But he wrongly claims that this evidences a “religious” mind, when of course it reveals just the opposite—the utopian mind of a mystagogue of secularism. Howe prefers Emerson’s social and political criticism to his metaphysical doctrine, overlooking the way Emerson’s criticism comes out of the metaphysics, suffering the marks of its origin. Without the metaphysics, which is at least interesting, the criticism would amount to little more than what have become standard ‘progressive’ complaints about private property and military preparedness, seasoned with the heavy spice of moralistic cheerleading when a politically congenial war occurs. Between the metaphysician and the social/political critic is Emerson the moralist, author of “Self-Reliance,” the writer Nietzsche called “the richest in ideas in this century so far.” Howe fails to show why Emerson would interest Nietzsche, and this is no small failing.

Howe writes that Emerson would extend the American Revolution to “the sphere of the spirit.” Yet he criticizes Emerson’s utopianism, his assumption that politics somehow can be bypassed or transcended. This shows that Emerson does not really adhere to the principles of the Revolution. In his appeals to moral sentiment (“self-evident” truths) and to liberty from old forms of oppression, Emerson does resemble Thomas Jefferson, but he lacks Jefferson’s toughness, his political realism. Jefferson never imagines that the moral example of a disarmed country could prove a practical defense against would-be invaders. Emerson did.

The self-reliant Emersonian individualist, turning inward and shedding social claims, unifies himself with the ever-changing Absolute, that is, with a radically non-individualist force. Howe portrays Emerson as being forced reluctantly from this unusual individualism by moral anxiety over slavery. Emerson had always conceived of the Absolute as not only true and good, but as morally good, with immediate, practical guidance for each person. This utopian assumption rounded on itself by forcing Emerson “into the commonplace world of politics, reform, compromise.” “Insofar as Emerson was becoming a reformer pretty much like other reformers, his essential project, the glory of his younger years, had to dwindle.” Further, the rise of industrial society, wherein self-reliance had to give way to collective action, made Emerson increasingly irrelevant; “the factory worker could assert himself as a man,” Howe contends, “only by joining in common action with his fellow workers.” Emerson, then, both succumbed to politics and failed to become political enough.

With all due suspicion of the partisan socialist edge on this critique, one ought nonetheless to acknowledge Howe’s acuteness here. Still, it must be said that Absolutism did very little to cause Emerson to compromise. His speeches on the Fugitive Slave Law and on John Brown typify what would become standard intellectual-in-politics fare, moralism unrelieved by prudence. Of Lincoln’s brilliant alternation of temporizing and intransigence, Emerson understands very little, and then only after the fact. In a sense, of course, Emerson could only welcome his so-to-speak obsolescence. Historicism must admit the passing of everything, excepting only historicism itself.

“In Emerson we have lost a philosopher,” Nietzsche wrote, lamenting “that such a glorious, great nature, rich in soul and spirit,” had not “gone through some strict discipline, a really scientific education.” There may be something more to it than that. In a very ‘Nietzschean’ passage in “Experience,” Emerson asks, “What help from thought? Nature is not dialectic.” Life’s “chief good is for well-mixed people who can enjoy what they find, without questioning.” But any philosopher, including Nietzsche, enjoys what he finds, with questioning. Emerson remains an intellectual (America’s first) and not a philosopher because he knows and questions too little. He affirms and negates, preacher-like. The ‘divinity’ this preacher/prophet reveals resembles the ‘god’ of the philosophers, or nature; it the Hegelian/historicist revision, nature then becomes evolutionary, an instantiation of the Absolute Spirit. But in Emerson it comes to light unphilosophically, that is, in a manner distorted by caprice.

The part of American culture our intellectuals represent habitually arrays itself against American politics. Its absolutist moralizing rests on neither divine revelation nor reason, and therefore veers between vehement assertion and relativist lassitude. Arbitrary strictures, most of them merely fashionable, have too little reality about them to effect much serious political change or conservatism. At most (and therefore at worst) they unhinge the minds of practical men from practical realities, while obscuring principles from almost everyone.

J. A. Leo Lemay, ed.: Benjamin Franklin: Writings. New York: Library of America, 1987.
Esmond Wright: Franklin of Philadelphia. Cambridge: Harvard University Press, 1987.

This essay combines two reviews, the first published originally in the Washington Times, the second published originally in the New York City Tribune, August 12, 1987.

 

While pioneering the Sisyphean task of explaining Americans to the French, Benjamin Franklin wrote that, given “the most general Mediocrity of Fortune that prevails in America, obliging its People to follow some Business for Subsistence, those Vices that arise usually from Idleness are in a great Measure prevented. Industry and constant Employment are great Preservatives of the Morals and Virtue of a Nation.” In addition, he observed, “serious religion under its various Denominations, is not only tolerated but respected and practiced,” so that “persons may live to a great Age in that Country without having their Piety shock’d by meeting with either an Atheist or an Infidel.”

Serious work and serious religion, both associated with middling economic and social conditions reinforced by a sameness of opinions (called ‘cohesiveness’ by friends, ‘conformity’ by critics)—these traits still persist in what we now call ‘Middle America,’ despite some noticeable softening in the last twenty-five years. The softening of the middling virtues, the ones that ‘made America great,’ as orators used to say, weakens the political regime, in turning threatening the civil, intellectual, and religious liberties protected by the regime.

Love and fear soften the middling virtues. Work and religion rechannel these passions, but the very success of hard work brings idleness, which brings back love and fear: In America sexual liberation and the fear of war, equal components of ‘Sixties radicalism, brought first disorder, then inertia. Benjamin Franklin saw that love and war pose the challenges to the good ordering of human life as he conceived it.

“Neither a Fortress nor a Maidenhead will hold out long after they begin to parley,” says the eponymous narrator of “Poor Richard’s Almanack,” collected in this handsome new Library of America collection of Franklin’s writings. The regime of liberty depends upon protecting certain areas from public discussion and therefore from popular action. “The proof of gold is fire; the proof of woman, gold; the proof of man, a woman.” No other American Founder would have said that, but Poor Richard does. Although celebrated for his humorous defense of amours with older women (“in the dark all cats are grey,” but older ones purr more), Franklin consistently defends marriage, “the Cause of all good Order in the World.”

But he does not defend it as an institutional embodiment of love. No, love is a notion he surely would regard as chimerical in all but odd cases. Marriage at best is a friendship, defined unambitiously by Poor Richard: “There are three faithful friends, an old wife, an old dog, and ready money.” Marriage requires prudence, not passion (“Keep your eyes open before marriage, half shut afterwards”). It seems that “One good Husband is worth two Wives; for the scarcer things are the more they’re valued,” and thus successful marriages usually depend upon the forbearance of women.

One of the newly attributed writings of Franklin appearing in this volume is “Rules and Maxims for Promoting Matrimonial Happiness,” written in 1730. Women are its intended audience, but the deferential wife commended therein (“study his Temper and command your own”; “avoid, both before and after Marriage, all Thoughts of managing your Husband”) could not survive, intact, either the libertarian or the egalitarian thrusts of liberal democracy. The famous twinkle in Franklin’s eye may have reflected some intimation of this, but he did not think it through.

He did, however, think through the problem of war. He never fought in one, preferring to parley. “In my opinion,” he once wrote, “there never was a good War, or a bad Peace.” Franklin’s strong anti-war sentiments are well-known, and they comport with his fondness for commerce, religious toleration, and above all for “philosophy”—the quiet practice of useful science, including “The Science of Virtue,” as he called it in the one Socratic dialogue he wrote. But he never ran to the extreme of pacifism. He spent much of his early political career opposing the Quakers of the Pennsylvania Assembly. As Poor Richard advises, “Love your Neighbour; yet don’t pull down your hedge.”

One of the most brilliant (and prescient) of Franklin’s essays is entitled “The Jesuit Campanella’s Means of Disposing the Enemy to Peace.” Here Franklin outlines how an enemy may be divided and conquered by a “warre of words” in which the target nation’s own writers, clergy, “rich men,” academics, women, and “great Statesmen whose natural spirits be exhausted by much feasting,” will gull “the simple and undiscerning many” with cries of “Peace, Peace, Peace.” Franklin would use the realism, and particularly the suspiciousness of the commercial mind, ever alert to swindle, to toughen it against its own tendency to compromise on everything, to talk itself into abandoning its fortresses.

Christianity, that grand synthesis of the spirit of love and the spirit of war, attracts Franklin’s judicious attention. He praises Christianity while artfully rechanneling its energies toward less volatile practices. (Poor Richard bursts into song: “To lead a virtuous Life, my Friends, and get to Heaven in Season,/You’ve just so much more need of Faith, as you have less of Reason.“)  Much more than we his inheritors do, Franklin saw that love and war must be conceived in a new way in order to support the regime of liberty. Only then does a certain piety make sense: “God grant that not only the love of liberty, but a thorough knowledge of the rights of man, may pervade all the nations of the earth, so that a philosopher may set his foot anywhere on its surface and say: This is my Country.” Absent this universal love and knowledge, prudent men must keep up their defenses, in private life and public.

In view of Franklin’s art of defense, who and what was he? Considering Edmond Wright’s biographical account, Franklin comes to light as a self-made man who invited everyone he met, personally or through his writings, to lend a hand in the making. This accounts for some of the fascination with him, and some of the disagreements about him.

He managed both uniqueness and typicality, to be individual and to the individualist. Tell me your feelings about him, and I will know what you feel about the bourgeoisie—businesslike, affable, adaptable to and adaptive of circumstances, shrewd, patriotic but given to internationalist dreams, respectful of religion but undevout, inventive, of middling morals, surer of means than of ends, somewhat libertarian, ambitious, sincerely aspiring to virtue and even more to the respectability the reputation for virtue brings.

Franklin pushed embourgeoisement to the point of genius. But as genius is not itself bourgeois, we do not exhaust him by saying, as Wright does, “He as completely and avowedly bourgeois.” Wright himself produces contrary evidence: “son-in-law Richard Bache’s memory of him was that life seemed always—at least on the surface—to be a great joke”; yet he could write to his sister Jane, “this world is the true Hell.” Neither the irony nor the pessimism add up to the Compleat Bourgeois taking this life seriously but not desperately. They suggest rather a man with insights transcending the limits of social class.

An Epicurean, then? One who glimpses chaos beneath the surface, sees the horrors of it, and prudently steps back to enjoy the surface with as much refinement as he can cultivate? But Franklin was no Epicurean in the classic sense, and not exactly one in the vulgar sense. As Wright observes, he lacked “the aesthetic sense,” preferring utility to the beautiful and the speculative. (Franklin on Deism: “I began to suspect that this doctrine, tho’ it might be true, was not very useful”). As for vulgar Epicureanism, Wright admits the man enjoyed his squab and madeira, but suspects his “venery” to have been exaggerated: “Probably it was the words and not the deeds that were bold.” More, a distinguished public career precludes any serious Epicureanism, however defined.

“Was there,” Wright asks, “a ‘real’ Franklin?” There was, but he was a man more readily captured by the historian’s narrative than by philosophic definition. He moved prudently with shifting circumstances.

His trade, printing, enabled him to educate himself by reading widely and writing voluminously. Like all editorialists, he “began as a moralist, concerned with good conduct”; works instead of faith, action instead of thought, “the mastery of books as tools and weapons” not guides and teachers, interested him from the beginning. The morality he derived from Boston of the 1710s was a decidedly secularized Puritanism—more at home, it transpired, in tolerant, polyglot Philadelphia, where taverns outnumbered churches by ten to one.

Franklin established America’s first circulating library in 1731: “there were more titles by [John] Locke than by any other author.” That is a revealing datum. A materialist of dubious faith but with a prudent regard for pious opinion, Locke formulated a modern, that is to say among other things active, Epicureanism—one encased insobriety and even some public spiritedness. “Utility for Franklin was never forgotten,” and in this he followed Locke. To Franklin, “philosophy” meant applied, useful, science. “For him politics was not cajolery but construction, not the placating of people but the carrying through of plans.” Politics was the place where useful morality and useful knowledge meet.

“He that drinketh his Cyder alone, let him catch his horse alone,” said Poor Richard. For Franklin there is not real tension between individual and society; they need one another. Both his individualism and his sociality inclined Franklin toward independence for the American colonies, but both inclined him in that direction slowly. During his long stay in England as what we today would call a lobbyist for the Pennsylvania Assembly, Franklin’s individualism brought him to prefer the company of “writers and scientists, Scots and Dissenters,” not the British establishment. Parliamentary imperialism, whereby the House of Commons asserted the right to rule the colonists by law, “especially irritated” Franklin the individualist, enthusiast of self-help and self-rule for persons and peoples.

Franklin’s social nature undoubtedly resented the snubs of English ‘great men,’ but delighted in rumored praise from King George III, to whom Franklin tried to remain loyal while defending colonial independence from Parliament. Wright accurately calls Franklin’s conception, “a commonwealth of equal members,” not a “mother country with subservient dependencies,” and plausibly argues that a Parliament that had so recently wrested power from the throne would never permit the king to become the final arbiter of colonial affairs.” Franklin’s sociality also made any revolutionary doctrinairism as repellant to him as it was to his friendly acquaintance Edmund Burke. A born conciliator, he only began to speak in favor of American independence and republicanism in 1774. In the end, “a touch of Puritan iron” in his soul put an end to Franklin’s temporizing.

This led to the most useful political deed of a life devoted to utility: persuading France to give what in today’s terms were some 80 million dollars of aid to the American revolutionaries during the early, hard years of the war. “Without this, America might not have been able to maintain its independence after 1778.” While the French sought revenge for their defeat at British hands in the French and Indian War, some twenty years earlier, they also shrewdly and secretly proposed to the British a territorial settlement that would have blocked American westward expansion, and they were privately shocked at Britain’s eventual concessions in the peace treaty. Franklin’s diplomacy in France was aided by his charm, but abetted by the interests of his hosts, and also delimited by those interests. Utility is a game for any number of players.

Utilitarians may play well, as long as others are utilitarians. Franklin sometimes recognized that they are not, always. He predicted peace with the American Indian tribes, but only after their defeat. And on Quaker pacifists he noted: “I had some cause to believe that the defense of the country was not disagreeable to them, provided they were not requir’d to assist in it.” Still, he almost wistfully hoped for the adoption by rulers of some more utilitarian calculus than was usual. “An army is a devouring monster,” and “if statesmen had a little more arithmetic… wars would be less frequent.” He imagined that the existence of hot air balloons might render all countries defenseless, and thus pacific.

More seriously, when he commended thirteen virtues to the readers of his Autobiography, he omitted courage. He had Poor Richard say, “There are three great destroyers of mankind, Plague, Famine, and Hero.” As did Locke, he hoped peaceful commerce would replace war as the chief mode of international relations. And also like that great philosopher, he did not sufficiently anticipate or guard against the re-clothing of fanaticism in secular garb.

What he did see was the central part that what we now call ‘the media’ would play in modern politics. Not only did he use his printer’s apprenticeship to begin his self-education in political thought, he also understood how mastery of publicity via the printed page, distributed to masses of people, could serve not only as a catalyst for debate and a vehicle for conveying information, but as a means of shaping the reputation of a writer-politician. We talk today about those who ‘invent themselves’ or construct a ‘public image’; Franklin knew all about that, and did it better than almost any American, before or since. He made this second self into the face of the nation whose regime he helped to conceive and design.