Posted: July 6, 2011
Ten Years of CRB
Like many Christians, I suppose, my "seasonal moods" are largely determined by the liturgical calendar—the annual sequences of Advent to Christmas, Theophany to the Triodion, Lent to Pascha, and Pentecost to the autumnal celebration of the Holy Cross. These intervals, which give structure to the year, shape my sense of reality, and invariably, I find, my heart is ready for the next season when it arrives.
These are not my only special times, however. In addition, I also wait, in keen anticipation, for those four annual red-letter days—evenly spaced—when the mailman delivers to my home the latest copy of the Claremont Review of Books. On those occasions, it is certain that I will be preoccupied for the next several days. My wife does not (I think) speak to me at those times. If a siren sounds or the phone rings, I do not hear it. Should the house across the street suddenly burst into flames, the episode would elude my attention. Once the new CRB comes into my hands, there is nothing else significant until every last word has been read.
After reading the CRB I normally find myself looking at certain subjects from a slant I had not thought of before, and this is true in the present case. Let me mention one example from your recent anniversary issue. Until now, I understood the current judicial controversy in this country mainly as a debate between those who interpret the Constitution from a "strict constructionist" perspective and those who believe in a "development of doctrine."
In the latest CRB, however, the essay by Hadley Arkes and book reviews by Michael M. Uhlmann and Bradley C.S. Watson have prompted me to reassess that debate. Thanks to these writers, it is much clearer to me now that the Constitution presupposes a certain view—shared by the founders—of what it means to be a human being.
This was clear to Lincoln, whose understanding of the Constitution was guided by specific anthropological claims enunciated in the Declaration of Independence; namely, "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."
In other words, human beings inhabit a universe already contoured by a transcendent moral shape, which the framers took to be "self-evident." The Constitution was composed for life within a universe brightly illumined by "moral limits" and "canons of moral reasoning," and hence, no government, Congress, or Supreme Court can confer, on anybody, "a right to do a wrong."
Thank you again, and congratulations on your anniversary.
Patrick Henry Reardon
Touchstone: A Journal of Mere Christianity
Congratulations and thank you! Your 10th anniversary double issue is a triumph, and I'm only on page 35. I am new to theCRB; it was referenced in a story I was reading online about a year ago. I'm sorry now that I don't remember in what way your journal figured in the article, but I do remember that I immediately got out my credit card and subscribed.
Please believe me when I say I have read every single word so far—the issue is unskimmable. I took it with me to the salon this morning (I was reading William Voegeli's "The Tao of Jerry.") I must have looked odd sitting under the dryer with my copy because people stared, and several asked what I was reading. No gloss? No glamour? No celebrity breasts?
After Jerry (outstanding work, as always, Mr. Voegeli), was "Standing Pat," Steven Hayward's look at Daniel Patrick Moynihan. Well, that was it. Out came the highlighter. Gerard Alexander's "Progressive Fat Cats" had me laughing aloud, and Clark Judge's warm recollections reaffirmed what I know and feel about Ronald Reagan.
I will savor the rest of the issue, and fully expect to relish and re-read Mark Helprin's "Parthian Shot" (his books have long been my favorites). The CRB's contributors are the teachers I wish I had.
P.S. I'm ordering a second copy. For my salon.
* * *
Natural Law and Constitutional Law
Hadley Arkes has once again performed a service for us all ("The Mirage of Enumerated Powers," Winter 2010—Spring 2011). Too often these days the defense of limited and delegated congressional powers, and of federalism generally, appears to rest on filio-pietism—these things must be preserved because they were part of the founders' design. The moral reasoning that undergirded the system of divided government, and should continue to be the focus of our energies today, gets short shrift. Yet in returning us to this home truth, Professor Arkes uncharacteristically overstates his case.
That there is "nothing arising even out of the logic of the Constitution or the American regime that can furnish any hard limits that confine the federal government's reach" is technically true (the adjective "hard" saves it) but seriously misleading. Indeed, Arkes himself immediately provides an excellent example of constitutional limitation in his discussion of early understandings of the interstate commerce power. Once we say to ourselves the words "interferences with trade" (surely the founders' understanding) the limiting logic of the provision becomes clear.
And moving to the "logic of the...American regime" (which surely encompasses the ratification debates), I offer Pauline Maier's recent study, Ratification: The People Debate the Constitution, 1787-1788. Although no conservative herself, Maier's pages bristle with warnings about the mortal threat to liberty inherent in centralized, consolidated government as well as nationalist protestations that their proposed replacement for the Articles of Confederation was no such thing! Indeed, Federalists insisted that they were just as devoted to limited and decentralized government as were their critics. (That a few of them may have been dissembling is neither here nor there for our purposes.) The ratification debates are a theoretical and rhetorical treasure house on which defenders of limited government draw.
Finally, Hadley's invoking Morton Grodzins is unhelpful. "Marble cake federalism," whatever its empirical merits in the post-New Deal 1950s, is a normatively weak and misleading metaphor for the constitutional division of powers, implicitly legitimizing, as it does, a loosey-goosey functionalism: "let the thing be done by the level of government that can do it most efficiently." But "efficient" here tends to reduce to a narrow economic calculation; overlooked is the fact that the benefits of self-government, popular participation, and policy variegation (in liberty, that is) may be worth paying a high price for in inefficiency. Far better the doughty old phrase "dual federalism," with its suggestion of separate spheres of government power. Accepting always Arkes's point that the spheres must never be understood as impenetrable, the very idea of duality implies a strong presumption against certain kinds of central policymaking, and that is precisely the intellectual posture we should strive to maintain.
Moral calculus, to be sure, but constitutional text and tradition always front and center.
Richard E. Morgan
Hadley Arkes is entirely correct to object that "Under the affectation of natural justice we find judges installing, with high pretension, their own political agendas." The result, to put it bluntly, is that the Constitution has very little to do with constitutional law; that is, with the Supreme Court's rulings of unconstitutionality. The Court has made the Due Process and Equal Protection clauses simple transferences of policymaking power, enabling the Court to remove from the ordinary political process and assign to itself for final decision any policy issue it chooses. The Court thus can and does disallow any policy choice with which a majority of the justices strongly disagrees, giving us a system of government similar to Iran's, with the Grand Council of Ayatollahs replaced by nine unelected life-tenured lawyers, and ultimately, today, by Justice Anthony Kennedy.
The only difficulty with Arkes's position on constitutional law and the appropriate role of the Court is that his position is as a practical matter no different from the position he rightly denounces: unlimited policymaking power by the judges. He believes that the Constitution, a very short document that has little to do with social policy, bears, amazingly, on all policy issues: "There is no subject so prosaic that it cannot...involve a violation of the principles contained in the fundamental law of the Constitution." And further, that in constitutional cases, the "decisive grounds of judgment must be found...outside the text...in those substantive moral principles that are not contained in the Constitution." As Robert Bork has repeatedly—and I think decisively—pointed out, when a judge looks outside the text of the Constitution in a constitutional case, he looks nowhere but in himself, to his own policy preferences.
Justice Kennedy could not have agreed with Arkes's view of constitutional law more when he wrote in his opinion for the Court in Romer v. Evans that the people of Colorado could not disallow laws giving special privileges to homosexuals, because "it is not within our constitutional tradition." Kennedy would insist and surely believes, as much as Arkes, that he did not apply a purely personal policy judgment in reaching that conclusion, but instead the "canons of moral reasoning," and "principles contained in the fundamental law" of the Constitution. Kennedy and Arkes disagree only as to what those canons and principles are and the conclusions to which they lead, each finding with remarkable and happy consistency that they produce conclusions in accord with his political preferences. Ronald Dworkin, probably our most eminent current jurisprudent, also agrees with Arkes that the Court should decide constitutional questions on the basis of moral reasoning, which for him, however, almost always leads to conclusions, such as a virtually unlimited constitutional right to abortion, directly the opposite of Arkes's.
Arkes regrets that "the canons of moral reasoning" "are treated too often by many of our friends as though they were subjective." As an admirer of Hadley (when he's not talking about law), I consider myself one of those friends and plead guilty to the charge. They are subjective, permitting a range of different views, at least to most real policy issues.
A problem of policy choice is a problem only because interests recognized as legitimate come into conflict. Solving it is not a matter of discovering the resolving principle (by "moral reasoning" or otherwise), but of making a policy choice, sacrificing one interest to some extent for the benefit of the other. The threshold issue in constitutional law, therefore, is almost always not how the policy issue should be decided, but who should make the decision. Why should it be decided by majority vote of nine unelected life-tenured lawyers for the nation as a whole rather than by the elected representatives of the people, usually on a state-by-state basis?
Arkes's belief that his canons of moral reasoning provide objectively correct answers to real legal-social policy issues is totally unrealistic. One almost regrets having to dispel the natural lawyer's soothing confusion of wish with reality by pointing out that nature is notoriously poor at law enforcement. Moral outrages, much less contract breaches, take place all the time, unfortunately, almost as if nature just doesn't care. A difference between a moral and a legal obligation is that only a breach of the latter can get you sued and bring the power of the state against you. An obligation enforceable only by "the law of nature" must be seen, therefore, by one relying on it, as something considerably short of "perfect."
The gist of American federalism is not that there is anything Congress can't do, only many things it can't do honestly. If Britain or France wants to prohibit race discrimination in restaurants, for example, they pass a law to that effect. Congress also passed such a law, the 1964 Civil Rights Act, but it did so by pretending to be regulating interstate commerce. My job as a professor of constitutional law is to teach these underhanded moves to beginning students and so set them off on the right foot for a legal career. I agree with Arkes that localism is extremely important and valuable, but division of government power is not an appropriate subject for courts. The Court should openly withdraw from its current "pretend" federalism review, the only effect of which is not to limit Congress's power, but to give congressmen an excuse for not even considering the federalism issue.
Is there a real dispute here at all, or is it, as I always suspect in a debate on natural law, just a matter of semantics? It must be that Arkes and I are simply not talking about the same thing. Can anyone but Arkes (and Harry Jaffa) really believe that instructing judges to decide constitutional cases on grounds "outside the text of the Constitution" on the basis of "the canons of moral reasoning" will—or indeed, can—be seen by them as anything other than a warrant to enact their political agenda? It just may be that Hadley (and Harry, another friend) doesn't understand, say, William Brennan and Harry Blackmun as well as I do, due to the unfortunate fact that my lot in life has been to study their doings while Hadley (and Harry) get to read Locke and Plato. The justices—lawyers with unchecked power—are our public officials least to be trusted. Of course, the judges are already simply enacting their political agenda; following Arkes might mean only that they could stop pretending to be enforcing the Constitution.
In any event, if the canons of moral reasoning are the appropriate basis for constitutional decision making, it would seem, at the very least, that we should put moral philosophers, not lawyers, on the Court. Arkes and Dworkin would make a good starting pair, perfectly canceling each other out. When it is moral guidance that is wanted, after all, lawyers are not the first group that comes to mind.
Lino A. Graglia
University of Texas at Austin School of Law
The title of Professor Arkes's essay, "The Mirage of Enumerated Powers," expresses a kind of contradiction in constitutional governance. That it is indeed an appropriate metaphor for today's "living constitution" should concern all of us. Still, Arkes's premise seems to me profoundly flawed.
If the Declaration of Independence, The Federalist, Madison's Notes, and the Annals of the First Congress didn't exist, maybe I could fully embrace the "moral limits" argument. But these things and much more do exist to clarify the meaning and intent of what is written in the Constitution. It's as if Arkes assumes the position of the progressive jurist: that the Constitution is an isolated document: its intent and interpretation begin and end, therefore, with what the Supreme Court and Congress may decide. The progressive jurist interprets using some idealistic notion of "fairness" in outcomes, an attribution of willful ignorance. Professor Arkes would have interpretation by the Golden Rule—much, much better, indeed necessary, but hardly sufficient.
It seems clear that nearly all of the founders had an unqualified belief in the hierarchy of rights: natural rights are supreme, social-contract rights (The Bill of Rights) come next, and statutory rights, those that may follow from laws passed by Congress, are last. Lesser-order rights can't be allowed to nullify higher-order rights within the constitutional limits of federal jurisdiction. Judging based on this rule is arguably the Supreme Court's most basic responsibility to the republic.
The 9th and 10th Amendments do mean something. The Constitution's plain and simple language is pretty clear about where the federal government should and should not trespass within the social contract. The many benefits of federalism default to the tyranny of pure democracy when every injustice, real and imagined, is to be rectified by the national authority. Professor Arkes certainly makes a fine case for a natural-law alternative to progressive interpretation. Perhaps we have strayed so far from constitutional governance that his appeal for self-restraint within moral limits may be the only way to get the pendulum to start swinging back. But does he really believe the progressive faction of our Supreme Court justices would "get it" if they bothered to read his books?
He makes the case himself why governance based on morality properly understood is not sufficient: too many with the power to move the pendulum simply won't get it. So there must also be rules, "hard limits," that even the ruling class must follow. The constitutional limits to federal power have been increasingly ignored over the past 80 years, but they are not a mirage. This condition is so serious and fundamental that I just can't accept Professor Arkes's premise, even though the title of his essay is a fitting metaphor for what we see when we look at today's "living constitution."
Hadley Arkes replies:
On the main points about limits on the reach of the government, I am, as usual, in "heated agreement" with Dick Morgan. But I can't quite make out what he is offering as an alternative scheme in understanding those limits, and so I can't quite understand what I am "overstating." Pauline Maier's book does reveal the deep aversion to a "consolidated" government, but nothing in her pages offers us a clear scheme of marking those limits to the national government. As Dick knows, I argued in The Return of George Sutherland that the Commerce Clause never gave us an econometric model for mapping a modern economy, but that it did give us a rough, useful scheme for limiting the reach of the federal government. And so we find ourselves saying: if the federal government can ban the use of guns near schools, it could virtually do anything that a local government can do. Right; and that kind of argument gets us through most of our days. But it doesn't settle the question in any serious way. For at the very beginning it was understood, as part of the rationale for a national government, that it would have to be able to intervene in the States in order to protect the liberties of those faced with tyrannical local majorities. Think here of the local majorities acting to cancel debts in Massachusetts: as Madison remarked to Roger Sherman, there was the "necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interference with these were the evils which had more perhaps than anything else, produced this convention."
There are powerful, prudential reasons for keeping government closer to home and discouraging people from an over-reliance on government: it is simply good to give people practice in taking responsibility for things within their reach. I think Morton Grodzins understood that, in place of the Massachusetts Bureau of Motor Vehicles down the road, we might simply have the local branch of the Federal Bureau of Motor Vehicles, and it could make little difference in that domain. It is not for purposes of efficiency merely that we maintain these differences.
In Federalist #33, Alexander Hamilton offered two subjects that could never, in his judgment, come within the reach of the national government: "Suppose," he said, "by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State...[or] should undertake to abrogate a land tax imposed by the authority of a State." He thought these would be the plainest violations of the authority confirmed to the States. But would Dick think he is right any longer? We've already seen the local laws governing inheritance challenged successfully on grounds of discrimination based on gender (Reed v. Reed). And the challenge to taxes on real estate has been hovering for a long while: e.g., the charge of violating the Equal Protection of the Laws by creating serious disparities in the funding of schools by relying on the property tax, for richer communities will have—gasp!—more amply funded schools. If we had a real-estate tax containing a covert discrimination on the basis of race, would Dick have the slightest doubt that this local tax would become the business of a federal court, and through that, the business of the federal government?
Everything will hinge, then, on whether the courts have been getting it right when they have been judging that certain kinds of discriminations are in fact unjustified, and deeply at odds with the fundamental principles of this regime of law. I would make the case that the assignment of racial preferences would be at odds with the deep principles that bar discrimination based on race, and so I would conclude that there are no conditions under which the government could be justified in imposing policies of that kind. Whether the judges see it that way is quite another matter from the question of whether the principles are there—along with the serious moral limits they enjoin.
We are back then to the point I was arguing in my piece: that the hardest limits to the reach of the government come with the moral limits. As Hamilton put it, we simply meant by a limited government that a government was not free to do just anything, as an ordinary person, a moral agent, was not free to do just anything. What many of our friends have either not recognized, or refused to recognize, in the face of powerful evidence to the contrary, is that there are clear moral limits, grounded in the laws of reason themselves, and which inspire virtually no disagreement among our people. There has been no one more obdurate in refusing to recognize what is so plainly before him in this respect, than my old friend Lino Graglia. May I say, in reciprocity, that I am an admirer, in turn, of Lino when he is not talking about this thinghe calls "law." But it would put in place points useful for the discussion with Dick Morgan and Lino Graglia, if I bring us back to those first principles of our moral reasoning that must be there, for any system of law, and that even lawyers seem able to understand.
We might begin with that first principle offered by Thomas Reid, which I've reformulated in this way: that we do not hold people blameworthy or responsible for acts they were powerless to affect. That simple proposition would explain many things in our law—e.g., the insanity defense, perhaps the wrong of racial discrimination (imposing adverse judgments on people for conditions they could not control). We may argue in different cases as to how much control people had, but no one can plausibly challenge the validity of the principle itself, at any time, in any place. It will never be plausible to convict a person of a crime committed before he was born, or an act he was utterly incapable of committing.
But now add slightly to the scenario in this way: by the very logic of morals, we respect the difference between innocence and guilt. We think we are justified in visiting punishment only on the guilty. And if we respect that difference between innocence and guilt, we insist on making that discrimination only in the most demanding way by testing real "evidence" with the canons of reason, not by having a defendant run over hot coals or outrun a mob on the street. For the same reason, in principle, we are utterly convinced that people accused of crimes should have access to the evidence and witnesses against them so that they have the chance to rebut them. And why rebut them? In order to produce a verdict that is substantively accurate, substantively just, in discriminating between the innocent and the guilty.
Here is the upshot, for both Morgan and Graglia: it is entirely possible that we can live by these principles and find many shortfalls of justice. Juries can make mistakes and even be corrupted. The innocent may be punished, and the guilty go free. And yet nothing in that experience from place to place could possibly dislodge our conviction that these are the rules that must be in place for any system that purports to be a "regime of law," any system that respects the difference between innocence and guilt. Hence the recognition: these rules are actually categorical (that word so often invoked, and so little understood). They will be true under all conditions. They offer us a standard to be respected and to govern our judgments, even if prosecutors and judges become blundering in applying them, even if our performance under these rules does not accord with them perfectly.
For Dick Morgan: I would submit that these hard rules do indeed supply the hard limits that must ever bear on a government calling itself a "limited" government; a government that understands, as any moral agent must, that it cannot claim a right to do a wrong. For Lino Graglia: do you really think that I've just "made up" these rules, that I found them only by "looking in [myself]," and that they are no more than subjectively true, true only for the person who holds them? If my friend can believe that, he can believe anything. But he is committed to that doctrine, precisely because he refuses, as he says, to credit the notion that there are indeed any truths, any canons of reason, that command our respect "outside the text of the Constitution."
Just what principle enjoins us to respect the Constitution in that way, or the votes that installed the Constitution, he cannot exactly say. For years he has simply offered us an example of how a conservative, in the most affable way, goes about absorbing the premises of relativism. If nothing else, I would make this point to my friend: he has been arguing for years that the judges have been getting things wrong, whether they've claimed to look inside the Constitution or beyond it. He apparently can recognize himself the difference between reasoning that is plausible or implausible, true or false. Now: does that distinction arise only for him, to be valid only for him? If so, why does he write books trying to explain the matter to the rest of us? He must be appealing to canons of reason, valid for others as well as himself. If so, he accepts the very ground of my argument. And the conversation should proceed from that point forward.
But there is one bizarre implication of his letter that should not go unremarked. Lino Graglia assumes that if I would have the judges engage the canons of reason in seeking the first principles of judgment, I am affirming the supremacy and ascendance of unelected judges. Where has he been? As Lincoln argued, the political branches may be obliged to respect the holding of the case in regard to the two litigants in the case. But they are not obliged to respect the principle articulated in the case—and apply it to different cases coming under their hands—unless they themselves have been persuaded of the rightness of the principle. In this way did the Lincoln Administration refuse to apply the principle of theDred Scott case to deny a passport to a black student in Boston seeking to study abroad, or to deny a patent to a black inventor in Boston. To say that judges should be obliged to engage in strenuous reasoning is not to say that everyone else has to stop, or that the judges may claim then a supremacy over the political branches in all things.
What I've said here in response to Morgan and Graglia would probably say essentially what needs to be said in response to Mr. Cramer, an engaging man I had the pleasure of meeting just a while ago, when we were announcing in Washington the inception of the Claremont Institute's new Center for Natural Law. I'm intrigued by the fact that Mr. Cramer writes with apparent innocence of the fact that he has already adopted my framework as his own. In seeking the limits to the Constitution he invokes right away the study of "the Declaration of Independence, The Federalist, Madison's Notes, and the Congressional Record for the First Congress." May I point out to him that these sources are not listed in the positive law of the Constitution. On what basis then does he offer them as the standards that are both authoritative and true in governing our judgments on the Constitution? As Hamilton would say, Mr. Cramer is evidently appealing to some ground "which antecedent to all reflection or combination, commands the assent of the mind."
He thinks it is evidently sensible to look to these sources, and I'm simply asking him to think back to the standards he has used in making that judgment. When he traces his reflections back he will probably find, as Hamilton said, those "first principles upon which all subsequent reasonings must depend." Those principles will be there even as we amend the Constitution and its institutions; they will be there through changes in regime. I'm sorry to be the bearer of bad news—if indeed it comes as news to Mr. Cramer—that the 9th and 10th amendments have emphatically not been the source of clear guidance on the limits to the federal government, for reasons that should have been amply explained in my essay. It is by no means clear, from his letter, what precise limits he would put in place, even if he found them in the 9th and 10th Amendments or the other sources he mentions.
And so the final irony here: in the most good-natured way, Mr. Cramer has confirmed the title of my piece on the "mirage" of enumerated powers. He continues to see an image of those boundaries and limits, but as I suggested in my piece, the closer he looks, and the more demandingly he reasons, he will find that those limits are just not there, where he sees them. What will not dissolve, though, are those primary truths, those first principles of reason, he is bringing into play. The satisfaction may come here for him in recognizing that he already has in hand the key for which he is searching.
* * *
Steven F. Hayward's thoughtful essay about Pat Moynihan seems to miss the point in concluding that he was "not up to the job of successfully opposing what was worst and most dangerous in liberalism" ("Standing Pat," Winter 2010—Spring 2011). It is also over-simple, in my opinion, to say that the label neoconservative "clearly fit him." Both judgments seem, if I may say so, anachronistic.
Pat was a "neoconservative" only in the sense that he was of one mind with the (notably heterodox) group who founded the Public Interest in 1965. Although a later generation of neoconservatives (some literally the children of the earlier group) focused on foreign policy, the editors of the Public Interest were originally united, not by rejection of "liberalism" (Daniel Bell insisted to the end that he was a liberal), but by scepticism about the efficacy of governmental action to effect desirable social change.
My own take on Moynihan's career is that it falls into three phases. In the first, he was a classic New Dealer. (He was also greatly influenced by the Labour Party in England—where he spent three years—which, under Clement Attlee and his successors, was committed to a mixed economy.) He was, that is, a social democrat, dedicated to yoking the productive power of regulated capitalism to governmental action to reform social problems and to increase equality.
The second phase began, as Hayward seems to agree, with the unfair rejection of the "Moynihan Report," not (as Pat himself seemed to believe) by "liberals," but by a small coterie of Leftish liberals, some of them with elite backgrounds or credentials. This fed Pat's class hostilities, and in particular his belief in the connection between radical ideas and social privilege. His reaction may have been exaggerated and at times even paranoid. It may well have been influenced by the myths he encouraged about his own childhood, his father, and early hard times: there were hard times, but they were not as hard, or as long, as Pat allowed people to write.
Certainly many of us who were his friends were surprised that he agreed to work for Richard Nixon, though there was some merit in his contention that Nixon was more liberal, or less illiberal, than many in the Kennedy circle assumed. Pat's towering anger at the "Zionism is racism" resolution, so magnificently expressed in the speech reprinted with Hayward's review, was all of a piece with another strand in his complex personality: an intense patriotism that was happily combined with a sincere internationalism.
Pat told me of the influence on him of a short story, which he said was by Séan O'Faoláin, of which the punch line was: "I'm not that bad a man." An energetic search turning up no such story, I came to the conclusion that this was Pat's elaborate way of telling me that he, too, was "not that bad a man." He was not, he wanted me to know, a man who hated black people, or who abandoned his core beliefs. I never thought he did either.
It is true, however, that, intensely involved as he was in the worlds of active politics, journalism, academia, diplomacy, and other windows into a rapidly changing world, he did—like John Maynard Keynes—modify his opinions when circumstances changed. It is true, for example, that, like many of us, he was irritated by, and given to pointing out the flaws in, the kind of shallow Establishment liberalism characteristic of both the Kennedy and Johnson administrations, which assumed that once a social evil had been identified, it could predictably be eliminated by the application of appropriately calibrated quantities of skilled manpower and cash. The way the Great Society turned out made many thoughtful liberals question such optimistic assumptions.
He was elected to the Senate with the help of a group of people (originally associated with Senator Henry "Scoop" Jackson of Washington), many of whom did become neoconservatives. His campaigning involved as little "grubby glad-handing" as could be imagined. He twice carried New York state by the largest margins in the state's history with campaigns largely run out of his wife's kitchen, with minimum budgets, waged essentially on NBC's Today show and theNew York Times's op-ed page.
It is true, as Hayward says, that his voting record in the Senate was a nearly perfect liberal one. But we should remember Ockham's law. We do not need to contrive ingenious hypotheses to explain this fact, let alone impute it to a cowardly fear of the Left. Pat voted the liberal line because, both before and after the mid-life crisis over the Report, he was a liberal.
Those who think that liberals are a shabby tribe of deluded, unpatriotic, over-privileged, and hypocritical millionaires may find this hard to believe. Those who understand that most American liberals in the 1950s were patriotic social democrats, who called themselves liberals because they were afraid of attack, not from the Left, but from the McCarthyite Right, will understand that Moynihan's liberalism grew out of his New Deal reverence for what he called (in his "Guiding Principles for Federal Architecture") the "dignity, enterprise, vigor and stability of the Federal government." To imagine that, because he went to work for Nixon for little more than two years, he was a convert to conservatism, makes it unnecessarily hard to understand a very great man. To start from the premise that only a conservative can be a great man would be to misunderstand Moynihan, his generation, and history.
Rothermere American Institute
University of Oxford
Steven F. Hayward replies:
Godfrey Hodgson's letter displays why his books deserve to be read, especially his biography of Moynihan, The Gentleman from New York, and his co-authored An American Melodrama, the finest account of the 1968 election by a mile. But his letter also displays here and there a subtle partisanship that, although worthy in many respects (like Moynihan's), causes him to misconstrue both what I wrote and the issues involved. As such, Hodgson is avoiding a clear confrontation with the very same problems of contemporary liberalism that Moynihan drew back from openly confronting.
In fact most of my review tracks many of the particulars of Hodgson's letter, such as the last paragraph in which he says Ockham's razor explains Moynihan's liberal voting record. I think that's pretty much what I said. The crux of the matter is whether my judgment of Moynihan—as substantively a "neoconservative" but lacking courage to break with what he clearly perceived as liberalism's increasingly rotten aspects—is "anachronistic" and "simplistic."
I offered these strong judgments deliberately to provoke the very argument Hodgson has joined, and I'm open to the counterarguments that they are too strong or unjust to Moynihan. Other friends of the late senator have made a similar case to me since the review appeared; Moynihan simply disliked conservatism and most conservatives (as does Hodgson, I think), for decent reasons. But one difference is that most of Moynihan's other defenders do not stick up for contemporary liberalism in the way Hodgson does.
Let's take a couple of particulars. Hodgson notes "the unfair rejection of the ‘Moynihan Report,' not (as Pat himself seemed to believe) by ‘liberals,' but by a small coterie of Leftish liberals, some of them with elite backgrounds or credentials." Hodgson is narrowly right that the attacks on Moynihan emanated from the emerging radical or "New Left." Still, it was not the unfairness of the attack that is notable, but the way in which "Establishment liberalism" abandoned him to his critics, seemingly out of fear of offending the radical Left. The lack of any defense from other liberals was appalling. The White House disavowed Moynihan—one White House aide famously told a reporter, "I have been reliably informed that no such person as Daniel Patrick Moynihan exists." In other words, liberals were content to let Pat simply twist in the wind in the face of this scurrilous attack. The courage liberals showed against Joe McCarthy's targets went deep underground. This cowardice was utterly shameful, a moral failing of the first order for liberalism, and it is a dodge to try to lay the rap merely on the radicals. This pattern continued with the reaction to the "benign neglect" memo (probably leaked by a young staffer named Leon Panetta), which also saw Moynihan left undefended by liberals who surely knew better.
Is my allegation of Moynihan's putative neoconservatism "anachronistic"? I can agree with this in one sense, given that in the past decade neoconservatism has come to be identified primarily with a foreign policy creed. (The original neoconservatives such as Irving Kristol remained essentially old liberals with no principled objection to the welfare state.) But the underlying shifts in American liberalism that gave rise to the original neoconservatism have not changed and, if anything, continue to grow worse. Witness the fate of Joe Lieberman, another liberal with a pure liberal voting record, shown the door by his party for his divergence from today's liberal orthodoxy. (Perfectly fair for Hodgson to point out that this is happening on the Right, too, e.g., Senator Bob Bennett of Utah. It is worth discussing at length some time the symmetrical purities of today's Left and Right in order to plumb the connections between them.)
Which brings me to Hodgson's last paragraph, where he goes totally off the rails. I do not think my review can be construed to "start from the premise that only a conservative can be a great man," or that I think "liberals are a shabby tribe of deluded, unpatriotic, over-privileged, and hypocritical millionaires." To the contrary, I perceive, as I think Moynihan perceived, that today's liberals differ markedly from the 1950s liberals Hodgson describes as "patriotic social democrats, who called themselves liberals because they were afraid of attack, not from the Left, but from the McCarthyite Right," and who, like Moynihan, adhered to a liberalism that "grew out of his New Deal reverence for what he called...the ‘dignity, enterprise, vigor and stability of the Federal government.'" I'll add that those liberals were much more strongly anti-Communist than today's, and much less hesitant about "American exceptionalism" than Hodgson is (see his latest book,The Myth of American Exceptionalism). Hodgson, like Moynihan to some degree, allows his disagreement with conservatism to keep him from standing up to the rotten boroughs of contemporary liberalism.
* * *
I am most appreciative of Hillel Fradkin's review of my book The Closing of the Muslim Mind ("God of War and Will," Winter 2010—Spring 2011) because I greatly admire, and have learned from, his profound scholarship in a field in which I regard myself as a student. He speaks of my book as having been written in a "generous spirit" and that is how I regard his thoughtful review.
Let me respond to a few issues that he raises. Fradkin takes me to task for not providing a political context for the theological struggles of the 8th and 9th centuries. I do only glancingly refer to them. But to say that I "do not say or even ask" why those debates occurred under the Abbasid dynasty is mistaken. They occurred, as I try to make clear, because the absorption of large parts of the Byzantine Empire and the entire Sassanid Empire confronted Muslims with the claims of Greek philosophy. In other words, the challenge came from outside Islam. Fradkin suggests that it is better understood as emanating politically from within the Muslim world, perhaps in the very justification the Abbasids sought for their rule, as against the Umayyads.
Certainly, there is an element of this, and I point to it, but I wonder if it works "backwards from political and moral issues raised by intra-Muslim wars," because the discourse was entirely new to Islam. The struggle was over whether Greek thought could be assimilated or not, and on what terms. This is not to deny Fradkin's point that there were enormous political interests at stake in the answers, only that the questions themselves were not primarily political ones. Regardless, the answers given were fraught with consequences that have been devastating.
In respect to his remark that "contemporary natural sciences would seem to have more in common formally with Asharite atomism than Thomistic Aristotelianism," I would contend that modern science could not have arisen without Thomas's realist metaphysics; and that science was stillborn in Islam when Asharite atomism—which held that natural laws do not and cannot exist—prevailed. Aquinas provided for the integrity of created reality; the Asharites fatally undermined that integrity by denying cause and effect in the natural world, so that God could be the one and only cause. Unfortunately, even Ibn Khaldun fell under the influence of Asharism in his own denial of causality.
Because of what he calls the "essentially political-theological character of Islam," Fradkin thinks that it is more likely that political reflections will lead to a reopening of the Muslim mind than "narrowly theological ones." But it is, I think, precisely the inability of Sunni Islam to extricate the theological from the political that is its paralyzing problem. A deformed theology—a God of pure will and power—requires a reformed theology.
In any case, I think Fradkin and I agree on the nature of the challenge that is before Islam in achieving a synthesis of reason and faith, and on the enormous difficulty in meeting that challenge. I have simply tried to spell out the terms in which it would intellectually have to appear. If that effort is more likely to be inspired by political reflection, as Fradkin believes, there is unfortunately little sign of such a reflection yet—even in the Arab spring. If anyone spots it coming, however, it will no doubt be Fradkin himself in his diligent work on intellectual trends in the Islamic world.
Robert R. Reilly
Hillel Fradkin replies:
Let me begin by expressing my appreciation for the graciousness and thoughtfulness of Robert Reilly's response to my review of his book. It almost goes without saying that I cannot here respond adequately, especially to his views regarding the role of Thomistic philosophy in the birth of modern science, not to mention the present and developed character of natural science. As I indicated in my review, I regard this as a most complicated subject involving—as I may add now-veritable paradoxes in the character of contemporary natural science, and especially physics, complications which do not lend themselves to the discussion possible here. But I might note that Thomas's great intellectual enterprise contributed not only "realist metaphysics" but the elaboration of natural law. One may readily say that the discussion and debate about natural law was crucial to the emergence of modernity including modern natural science. But this leads me to reaffirm my contention that the emergence of modernity had as much to do with a theological-political debate within Western Christendom as with a strictly theological one.
This leads me to the theological-political issue within Islam and the reservations or objections Reilly raises. Reilly is correct that he and I "agree on the nature of the challenge that is before Islam...and on the enormous difficulty in meeting that challenge." But he believes that theological reflection is more likely to bear fruit than theological-political reflection since the "inability of Sunni Islam to extricate the theological from the political is its paralyzing problem." Moreover, he sees little sign today of such political reflection—even in the Arab spring. Reilly is correct about the problem, and about the state of contemporary Muslim political reflection. But if not robust it does still exist, whereas the theological path Reilly outlines is almost literally non-existent. One might add that, precisely if the theological-political problem is the problem—albeit a paralyzing one—it can only be resolved if it is addressed head on. Reilly's alternative seems to involve a flanking maneuver—but even flanking maneuvers require some troops and at present none are available absent a possible wholesale departure from Muslim tradition and thought. The main, if not sole, entry point for modern Muslim reflection—weak, fruitless, and even feckless as it may be—remains a concern with worldly political success and glory, concerns which are problematic for Christian thought.
This is hardly surprising for reasons having to do with both the founding of Islam and its early development, which I discussed in my review. Reilly doesn't disagree but thinks that it is also historically significant that "the absorption of large parts of the Byzantine Empire and the entire Sassanid Empire confronted Muslims with the claims of Greek philosophy." This has some relevance but not quite what Reilly seems to think. Surely the conquest of the Byzantine Empire—though not the Sassanian-provided an opportunity for the entry of Greek thought into Muslim lands, but emphatically not early and only perhaps for small groups. These small groups initially thought Greek rhetoric, dialectic, and logic might be useful instruments in polemics with Christians. In other words, political factors remained paramount. This leads me back to the current state of affairs. Reilly believes that Muslims—and others—would profit from an extrication of theology from politics or from the embrace of liberal democracy. So do I. But the main driver of modern Muslim reflection and action has been the traditional concern with political success and glory, coupled with the manifest experience of political failure and shame, including the shame of tyrannical rule. The so-called Arab Spring is the latest expression. In some places, especially Egypt, one of its components inclines to a "liberal" politics. But another has its roots in an orientation which is "illiberal," and a powerful debate will no doubt ensue.
Given Muslim sensibilities each will claim—each will want to claim—that it offers a "solution" to Muslim political failure. "Liberals" may point to the manifest worldly success of liberal democracy. But for the same reason and given Muslim tradition, a key term of that debate may be "justice," the dominant criterion of traditional Muslim political discourse. The Egyptian Muslim Brotherhood has already staked such a claim by naming its new party the Justice and Freedom party. No doubt their rivals will have to respond in these terms as well. Which of these tendencies will prevail remains a very open question. But at all events the debate will operate in a "political medium" broadly understood. But if the debate lasts long enough it may lead to a serious reconsideration of early Muslim politics and thought and an authentically Muslim recovery of the issue of freedom and, ultimately, its theological implications. Muslims may then see the great need for "theological reform" and pursue it with vigor. In that event, people would—and I very much hope may—profit from Reilly's reflections on the subject.
* * *
Angelo Codevilla is exactly right that "true citizenship" means that immigrants become, in Lincoln's words, "blood of the blood and the flesh of the flesh" with the American Founders ("Our Borders, Ourselves," Winter 2010—Spring 2011). As a long time admirer of Codevilla's trenchant writing on American elites, however, I am puzzled by a bizarre undercurrent in his work: when examining U.S.-Mexican relations, the astute analyst becomes a starry-eyed utopian, given to blaming America first.
Official Mexican policy considers people of Mexican descent (including American citizens), as "Mexicans who live north of the border." The "conservative" Mexican government today maintains that citizenship is based on race or ethnicity, a view entirely at odds with the sentiments expressed by Lincoln in his "flesh of the flesh" speech.
Mexican policy expresses contempt for the oath new citizens take to the U.S. Constitution (officially called the Oath of Renunciation and Allegiance), in which they formally renounce previous allegiance to their birth country. Furthermore, it is at odds with American national interests in patriotically assimilating newcomers into our republic. As a student of regimes, Codevilla should recognize the centrality of exclusive political loyalty for an immigrant-friendly, multiethnic democracy such as ours.
A newcomer who has taken the oath has left his previous people (in a political sense) and become a direct descendant of the Founding Fathers. He should not be voting in Mexico. It is no doubt true that American elites are mainly responsible for weakening assimilation. But this does not mean that Mexican challenges to our citizenship principles should go unanswered.
If Codevilla is serious about citizenship and assimilation, will he oppose both Mexican and American elites, and join those of us who seek to: (1) end immigrant dual citizenship voting in foreign countries, (2) cut off federal funds for schools that use Mexican curricula to teach American students, (3) cut off federal funds for bilingual and multicultural education, (4) eliminate all multilingual ballots in the U.S., and (5) expel those Mexican consuls (there are many) who are interfering in American domestic politics?
Angelo M. Codevilla replies:
Since I have always agreed with John Fonte's five points, I don't understand how he can see "a bizzarre undercurrent" of starry-eyed utopianism in my writing.
Teaching in Mexico, I developed contempt for its traditional (PRI) ruling class-corrupt parasites on their people, who substitute anti-Americanism for patriotism. The better folks among Mexico's elites have steep mountains to climb. I'm afraid that if the PRI "dinosaurs" take over again, as seems likely, they may well contribute to unprecedented challenges to our domestic politics. But those challenges are rooted here in America, specifically in the Democratic Party.
The Democratic Party's grand scheme has been to lure Hispanics in general and Mexicans in particular to vote Democrat, using as bait welfare-state services and racist propaganda. Were the Mexican government to campaign to induce Mexican-Americans to vote Democrat, that scheme would receive a powerful boost and would poison American politics as never before.
Mexico regards its citizens who live in the U.S. as forever Mexican because the sacrifices they make on their families' behalf make them national heroes. That is their business. Ours is to insist on our understanding of citizenship: exclusive political loyalty. This we have not done, and are in danger of abandoning totally.
Theodore Roosevelt was right: the notion that any man can love two countries equally is like claiming he can love two wives equally. Congress should legislate an end to dual citizenship and dual passports, and ban voting in foreign elections. Although there can be no bar to anyone in America studying what he likes (think of the networks of French, Chinese, and Hebrew private schools) there is no reason why the public's money should be spent to educate Americans in anything other than American curricula.
My opposition to so-called multicultural education is also personal: when I arrived in junior high school not speaking a word of English, any opportunity to use Italian would have been irresistible and would have kept me from mastering English as I did. Total immersion, sink or swim, is hard but best. English is the United States's common currency. To print ballots in any other language is to acknowledge that the privilege of voting has been given to persons who cannot understand what is at stake in elections. Such people are cannon fodder for political machines. Hence multilingual ballots mock democracy. I am not aware of Mexican consuls who interfere in American politics, but any consul of any nation who does such things defines "persona non grata."
Our general reluctance to uphold our own standards is a serious enough problem. Much more subversive of American politics would be the Democratic Party and the Mexican PRI joining forces to turn our growing Hispanic population into an aggrieved group, as a way of enhancing the two parties' own domestic political fortunes.
* * *
This message is written to Professor Schaub in friendship, though she and I have never met.
In her essay, she lays a great many social calamities at the feet of Facebook ("Unfriending Friendship," Winter 2010—Spring 2011). She charges that today's friendship is "primarily a route to narcissistic self-display and absorption in the moody minutiae of daily life." There is something to be said for that, but it leaves out an awful lot. Here is just an example from a week on Facebook: new mothers who post photos of their newborns, engaged couples who celebrate a marriage soon-to-come, friends—the real sort—who celebrate the accomplishments of one another or share, from afar, each other's misery.
Schaub's critique is the same sort of argument we heard against the telegraph, the telephone, and television—anything that rendered that which is far, close and almost intimate. To be sure, this intimacy often appears not quite the genuine article, though it's not as cheap as Shaub would have us believe. She is right to say that this is a problem as old as the Greeks—something Mark Zuckerberg, Facebook's founder, should know well. He attended Phillips Exeter Academy where he won awards for his study of the classics. The ancient Greeks knew no division between private and civic life, and the modern division between real life and a virtual one is something that Zuckerberg decries. He thinks that in order to be "authentic," we ought to be the same person in all aspects of our life.
Of course "real life" is not digital life, and we do not live in the Greek polis. We live in a globalized world, where thanks to circumstance or happe