George Will's False Constitutional Dichotomy

George Will offered a recent lecture on the U.S. Constitution in an editorial that falls victim to one of Will's trademark logical fallacies, the hollow man. Will suggests that he borrowed his argument from a book by Timothy Sandefur, who Will characterizes as conservative but who is more commonly and accurately described as libertarian,

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when "instituted" to "secure" natural rights.

The hollow man argument is one in which you ascribe to those who don't share your view a position that few to none of them hold, but that is easily batted down. Such a demonstration is usually followed by vigorously patting oneself on the back. Will departs from his traditional hollow man arguments, in that rather than simply making up a position he ascribes to liberals or progressives, here he has borrowed Sandefur's. Nonetheless, I think he would be hard pressed to find an appreciable number of progressives who blurt out, "Democracy!" when asked to identify the purpose of the Constitution, let alone the constrained concept of Democracy that Will presently deplores.

Further, to the extent that some of the political left might blurt out "Democracy!", so might some on the political right. Consider, for example, this guy:

After half a century of misconstruction, the First Amendment cannot be helped by a piddling-fiddling amendment about the flag. It needs serious thought about why the Amendment's framers, who used words more carefully than the court does, used the word "speech" rather than "expression." The answer is that speech, meaning the use of words, is the sine qua non of reasoning and persuasion, and hence of democratic government. Democracy is, after all, the point of the Constitution, to which the Amendment is appended.

The person who wrote that essay was also not so keen on the elevation of individual rights over those of the community,

[Both flag burning and abortion] involve a particularly American tension between the values of individualism and community. Actually, the rights of communities are so attenuated that there is not nearly enough tension....

The fundamental problem is a social atmosphere saturated with a philosophy of extreme individualism. In many manifestations this philosophy is anti-democratic because it overrides the right of the community to speak and act. This philosophy has been absorbed by many judges, including some so-called conservatives, who have supported the assault on the rights of the community.

In short, a younger George Will thought it absurd that the constitution might be construed to protect symbolic speech, as opposed to words that flow from your mouth (or from the printed page), and was contemptuous of giving constitutional protection to reproductive freedom. He saw the core of the Constitution as being about democracy, and was disdainful of the elevation of individual rights over constraints that the larger community wished to impose. He openly questioned the conservative bona fides of those who advanced individualism over community. It's possible that Will changed his mind, although his writings do not suggest an actual evolution of thought. It seems more likely that he forgot his past words, written in what he likely believed to be a time of conservative ascendency, and that his present position is inspired by his fear that the Republican Party is on a downward trajectory. After all, democracy is more fun when you're winning.

Contrary to Will, I don't believe that if you asked random liberal and conservative voters, "What is the purpose of the Constitution", you would get a majority of liberals arguing "to protect democracy" or a majority of conservatives aruing, "to protect individual rights". I also think that, whatever the initial response, both groups would acknowledge that the Constitution does, in fact, protect both democracy and individual rights. I think he would find vanishingly few people in either faction who would articulate the conception that democracy is a "process" and that individual liberty is a "condition".

The essential argument advanced by Will, paraphrasing Sandefur, is unconvincing:

Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, "spaces of privacy" that government chooses "to carve out and protect" to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.

Sandefur works for an organization that actively opposes eminent domain, and that appears to color and perhaps dominate his perception of this divide. After all, the most notable cases of eminent domain have occurred in urban areas in the name of urban renewal, and it follows that a lot of the governments advancing that renewal are Democratic.

There is a problem within that sphere, in that many Democrats are not comfortable with the government taking private property for a public purpose, particularly a nominally "pubic purpose" that involves handing seized land over to private developers. But more than that, when you move outside of that narrow sphere, the conceit collapses. When it comes to protecting the rights of marginalized and disenfranchised groups, progressives have consistently taken the lead. When the left embraced the civil rights movement, the Republican Party embraced the Southern Strategy. In the present push for equal rights for gay Americans, leadership comes almost exclusively from the left and resistance almost exclusively from the right. When it comes to reproductive freedom, it has not been the Republican Party that has taken the position that "individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified". Quite the opposite.

Will embraces an odd argument, advanced by Sandefur, that you should derive your beliefs about the Constitution's purpose not from the Constitution itself, but from the Declaration of Independence,

The Constitution is the nation’s fundamental law but is not the first law. The Declaration is, appearing on Page 1 of Volume 1 of the U.S. Statutes at Large, and the Congress has placed it at the head of the United States Code, under the caption, “The Organic Laws of the United States of America.” Hence the Declaration “sets the framework” for reading the Constitution not as “basically about” democratic government — majorities — granting rights but about natural rights defining the limits of even democratic government.

Alright, then, let's take a look:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Is it actually possible to read the Declaration of Independence and miss its emphasis on democracy and the consent of the governed?

I do have some sympathy for some of Sandefur's arguments, as stated by Will. In Will's formulation, which I am accepting as accurate, Sandefur deplores the manner in which the Privileges and Immunities Clause of the Fourteenth Amendment was effectively written out of the Constitution by the Supreme Court. I also appreciate Will's argument that the purpose of the constitution is not to leave the rights of the individual to the mercy of the strong, although I again have to note that, outside of certain narrow spheres, the protection and advancement of individual rights has been largely a concern of the political left. I'm impressed that Will has moved away from his past narrow textualism, now arguing that an "individual’s natural rights... include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment", and I would be pleasantly surprised if Will revisited some of his past positions in light of his new understanding of the Constitution.

I'm not sure what to make of Will's embrace of judicial activism,

Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.

Is Will acknowledging the obvious: that much of what has occurred in recent decades in advancement of conservative causes has involved rampant judicial activism by Republican-appointed judges? Is he embracing the notion of a "living constitution", one that should not be interpreted by its actual language but should instead be interpreted consistent with a contemporary view of individual rights? By what measure are courts to decide cases, in the process upholding and defending the Constitution, if not the language of the Constitution? Perhaps Will is arguing that he sees a great need for conservative judicial activism as a counter to democracy, not so much to protect individual rights as to protect his conception of conservatism from voters who keep electing Democrats.

Hey, Pleb - Why Aren't You Kissing The Ring?

Yesterday, when I was spending a ridiculous amount of time troubleshooting a server, I missed a lecture from David Brooks in whose view our nation, it seems, is no longer sufficiently deferential to authority. After an odd sort of introduction in which he complaints that modern memorials tend to humanize rather than deify their subjects, Brooks asks, "Why can’t today’s memorial designers think straight about just authority?" And by "memorial designers" he appears to mean "average Americans".

Some of the reasons are well-known. We live in a culture that finds it easier to assign moral status to victims of power than to those who wield power. Most of the stories we tell ourselves are about victims who have endured oppression, racism and cruelty.

Then there is our fervent devotion to equality, to the notion that all people are equal and deserve equal recognition and respect. It’s hard in this frame of mind to define and celebrate greatness, to hold up others who are immeasurably superior to ourselves.

But the main problem is our inability to think properly about how power should be used to bind and build. Legitimate power is built on a series of paradoxes: that leaders have to wield power while knowing they are corrupted by it; that great leaders are superior to their followers while also being of them; that the higher they rise, the more they feel like instruments in larger designs. The Lincoln and Jefferson memorials are about how to navigate those paradoxes.

I disagree with Brooks' initial premise. We live in a culture that, on the whole, idolizes fame, wealth and power. We have an enormous population of celebrities who are "famous for being famous", people with little to no skill or talent beyond attracting media attention. From the Kardashians to Joe the Plumber, they're not necessarily bad people but they have nothing to offer beyond their fame. We assume that anybody who has become wealthy or who has succeeded in business is admirable and worthy. And yes, that extends to politics. You need look no further than the host of mediocre politicians who sought the Republican presidential nomination - and were taken seriously.

I am not sure what to make of Brooks' second point, save for this: If Brooks could make a genuine case that we're tearing down "others who are immeasurably superior to ourselves", he would provide an example. It's fair to say we're living in a very polarized time, and that there's a strong partisan effort to tear down individuals and politicians associated with "the other side", but that's far from new or unique to this era. It's fair to say that we know more about people of prominence than we did in the past, and that it's easier to deify a business or political leader if you don't know about his quirks and foibles - but although it may be easier to imagine that somebody is "immeasurably superior to ourselves" if we don't know the facts, it's not unreasonable to judge a person based upon facts instead of myths.

Really, in this context it would be helpful for Brooks to clue us in, by naming at least one individual whom he concedes to be "immeasurably superior to" himself.

In terms of a "fervent devotion to equality", Brooks may not realize this but one place you can get the idea that "all people are equal and deserve equal recognition and respect" is... wait for it... the Declaration of Independence - "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." One might also note that the preamble to the Constitution does not begin, "We the others who are immeasurably superior to you...." Brooks may believe that to be the subtext, "Ha ha, let's pull one over on the plebs and suggest that they're our equals", but even if he truly believes that language to be a conceit it would be absurd for him to simultaneously pretend that no prior generation "fell for it".

Further, the concept of true equality is not dominant in our culture. When you hear demagoguery about "liberal elites", the neglect of "flyover country", whether the President is a "full-blooded American", and the like, that's about building a sense of superiority in the target audience. Perhaps Brooks means that we should attempt to be more objective when assessing ourselves, but there's no shortage of judgment in our society when it comes to assessing others.

Brooks complains that the slogan, "question authority" is used indiscriminately - questioning not only bad authority - perhaps the authority that led us into war in Vietnam - but also good authority - perhaps the authority that led us into war in Iraq? As with sharing the identity of his superiors, examples would strengthen his argument - or reveal its incoherence.

Brooks complains that Americans perceive "elites" as self-interested. He does not define that term, and his separate reference to "public servants" makes it clear that he's not simply talking about elected officials. In what sphere other than politics would he have us believe that the "elites" are looking out for the rest of us? Should we look to the historic leaders of the tobacco, energy and financial industries? The entertainment industry? Are we being too hard on media elites, such as Rupert Murdoch and Conrad Black? Egad. You don't have to assume that they're hiding something to recognize that they're people, and that they very often put their incomes and stock options ahead of the interest of their own companies, let alone the general public. I'll concede - Rupert Murdoch is "immeasurably superior" to me in terms of his ability to identify and exploit economic opportunities, but beyond that he's a terribly flawed human being. Should I close my eyes to that truth?

And what of politicians? When Mitch McConnell declared that "the single most important thing we [the Republican elite] want to achieve" is to make President Obama a one-term President, should I take him at his word? Or not? Because if I take him at his word, how can I avoid viewing him as a flawed human being, looking out for position and power even if it harms the country? And if I think of him as lying, how is it not his fault that people assume that he means what he says instead of assuming that he has glorious, positive motives and intentions that he hides from us?

Nonetheless, Brooks states, "I don’t know if America has a leadership problem...." Seriously? He can be a card-carrying member of a party that is led by McConnell, and that flirted with the idea of President Gingrich and President Santorum, and still wonder?

You can argue that McConnell makes it easy - that he's the low-hanging fruit - but really, if I'm not supposed to look at McConnell who's left to deify? John Boehner? Am I supposed to deify Mitt Romney, who technically has not yet even won his party's nomination, based upon his past ten years of self-aggrandizement and political campaigning? Just assume, perhaps because he's rich and has the right pedigree?

Daniel Larison refutes Brooks' notion that the Tea Party and OWS movements are leaderless, and responds,

What bothers Brooks about these movements is not that they reject all authority, but that they have weighed the claims to authority made by the current political class and found them badly wanting. These people probably haven’t concluded that they are “better than everyone else around them.” They are reasonably sure that their leaders are worse than they should be. If they are more cynical now than before, it could have something to do with the complete lack of accountability for the people most responsible for the calamities of the last ten years.

Not just ten years, though. The Watergate scandal broke in 1974. And any comment on increased cynicism toward government should acknowledge that the Republican Party has made a deliberate effort over recent decades to attack the motives, competency, and utility of government.

Brooks argues that our nation needs more "good followers", those who "recognize just authority, admire it, be grateful for it and emulate it". As stated, that's not unreasonable. If you are governed by a "just authority", you can no doubt find many admirable aspects, worthy of gratitude and emulation. The problem is that Brooks implies that the "just authority" we should be grateful for is that of Mitch McConnell, John Boehner and Mitt Romney. And through it all, while Brooks has no problem condescending to the masses for their failure to defer to those "others who are immeasurably superior to ourselves", one senses that Brooks has no trouble placing himself near - and perhaps even at - the apex of "others who are immeasurably superior to" you.