Ethics & Public Policy Center

What Is Constitutional Conservatism?

Published in National Review on November 28, 2011



This fall, liberals from the president on down have begun to grasp the scope of the political and intellectual disaster that the past three years have been for the Left. Their various responses to the calamity have tended to have one thing in common: immense frustration. But the different expressions of that frustration have been deeply revealing. They should help Americans better understand this complicated moment in our politics, and, in particular, help conservatives frame their responses.

Liberal frustration has fallen into two general categories that seem at first to flatly contradict each other: denunciations of democracy and appeals to populism. In September, Peter Orszag, President Obama’s former budget director, wrote an essay in The New Republic arguing that “we need less democracy.” To address our country’s daunting problems, Orszag suggested, we need to take some power away from Congress and give it to “automatic policies and depoliticized commissions” that will be shielded from public pressure. “Radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.” Two weeks later, North Carolina’s Democratic governor, Beverly Perdue, made a less sophisticated stab at the same general point, proposing to suspend congressional elections for a few years so members of Congress could make the difficult decisions necessary to get our country out of its deep problems.

Orszag and Perdue both seemed to channel a long and deeply held view of the Left—that the complexity of modern life and the intensity of modern politics should lead us to put more power in the hands of technical experts who have the knowledge to make objective, rational choices on our behalf. Leaving things to the political process will result only in delay and disorder. President Obama has frequently expressed this view himself—wistfully complaining to his aides earlier this year, for instance, that things would sure be easier if he were president of China.

At the same time, the Left has been rediscovering the joys of populism. Populism can mean many things, of course, but in America it has often meant not only a faith in the wisdom of the masses but also a channeling of resentments into a case that the majority is being oppressed by an elite few. And that is just what the president has sought this fall. On the stump, he has been railing against wealthy corporate-jet owners and their Republican henchmen, who care not for the struggling working man and want only “dirtier air, dirtier water, fewer people on health care, [and] less accountability on Wall Street.” Meanwhile, a small but opulently publicized populist protest movement has arisen to “occupy” parts of New York’s financial district as well as parks and public spaces elsewhere around the country. Although it seems at times to be all fringe and no center, the movement does appear to be held together by resentment against corporate greed and crony capitalism, and a sense that the large mass of the public shares that resentment.

So should we be guided by expert commissions or a popular movement? Does the public have too much of a voice in our politics or not enough of one? It is tempting to see the Left’s simultaneous calls for populism and technocracy as a profound incoherence, because we are inclined to see the two as opposite ends of an argument about who should govern.

For that reason, too, it has been tempting to respond with populist outrage to the stunning administrative overreach of Washington liberals in recent years—from banning Edison’s light bulb to giving 15 experts the authority to set health-care prices to expanding the scope of regulatory discretion seemingly without limits. For all its populist rhetoric of late, the Left has leaned far more heavily toward government by experts. And on its face, populist outrage does appear to be the character of the conservative response to the Obama years. It has been embodied above all in an extraordinary populist movement—the Tea Party, which has tried to fight back against the incursions of technocracy.

But the Tea Party has been very unusual for an American populist movement. It has not been focused on soaking the rich, as left-wing populists always have been. It has not even been primarily focused on reducing the tax burden on the middle class, as right-wing populists usually are. Rather, the Tea Party has focused on restraining government. It originated in outrage about federal bailouts, and has directed its energies toward pulling back the cost and reach of the state. It has asked for fewer government giveaways, not more. It has even given voice to a tight-money populism, criticizing the Federal Reserve for inviting inflation—a far cry from populists of old. And the Tea Party has also been intensely focused on recovering the U.S. Constitution, and especially its limits on government power (and therefore on the public’s power)—another very unusual goal for a populist movement.

These substantive demands of the Tea Party have been at least as important as its populist form. But that form, and the energy it has brought to the effort to resist Obamaism, risks causing us to draw the wrong lesson from the past few years. Populism as such does not define the proper response to the rise of technocratic administration, and cannot be the essence of the defense of our constitutional order against a resurging progressivism.

In fact, a look at the progressives themselves would help us to see that. The original progressives of the early 20th century, just like today’s seemingly incoherent liberals, were populist and technocratic—they argued both for direct democracy and for expert rule. Even as they called for enlarging the scope of the federal government and putting a class of educated specialists in charge of it, they also called for radical democratic reforms of our constitutional system. In the 1912 election, the Progressive-party platform proposed not only the direct election of senators but also the enactment of federal laws by public initiative, and even advocated allowing the public to overturn some court decisions by referendum.

And the progressives generally did not see a contradiction between their technocracy and their populism. They expected their technocratic ideas to be popular, and so they expected populism to lead to more expert government. Technocracy and populism would together undermine the power of the moneyed interests, freeing our government from corruption by the wealthy and thereby making it both more democratic and more rational. Those moneyed interests, the progressives argued, were protected by our constitutional system, which, with its slow-moving mechanisms and counterbalanced institutions, made any kind of change very difficult to bring about. As the progressive theorist Herbert Croly put it in 1914, the desire of the American people for a government that serves them rather than the rich and powerful was constantly thwarted “not by disconnected abuses, but by a perverted system.”

The simultaneous populist and technocratic appeals of the progressives’ successors in today’s politics seem to echo this premise. They at least implicitly suggest that technocracy and populism are two sides of the same coin.

And the framers of our Constitution seemed to think so too. But whereas the progressives championed both technocratic government and direct democracy, the Constitution stands opposed to both. As the framers saw it, both populist and technocratic politics were expressions of a modern hubris about the capacity of human beings—be it of the experts or of the people as a whole—to make just the right governing decisions. The Constitution is built upon a profound skepticism about the ability of any political arrangement to overcome the limitations of human reason and human nature, and so establishes a system of checks to prevent sudden large mistakes while enabling gradual changes supported
by a broad and longstanding consensus. Experts should not govern, nor should the people do so directly, but rather the people’s representatives should govern in a system filled with mediating institutions and opposing interests—a system designed to force us to see problems and proposed solutions from a variety of angles simultaneously and, as Alexander Hamilton puts it in Federalist 73, “to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design.”

That such a system is far from populist should be obvious. In Federalist 63, James Madison says plainly that the constitutional architecture involves “the total exclusion of the people in their collective capacity” from directly governing. The democratic elements of the Constitution are intended to be checks on the power of government, not expressions of trust in the wisdom of the public as a whole. And even as checks, these elements are imperfect. As Madison argues in Federalist 51, “A dependence on the people is no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”

But those precautions do not amount to the rule of experts. The framers were disdainful of the potential of technocratic know-it-alls whose abstract expertise was often of value only in what Hamilton calls, in Federalist 28, “the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.” And even men with expertise in administration should not be given too much power. In Federalist 68, Hamilton argues that, while good administration is very important, the idea that the best-administered regime is the best regime is a “political heresy.” There is much more to government than administration.

Thus expert omniscience could not be trusted to check the excesses of popular passion, and public omniscience could not be trusted to check the excesses of expert arrogance. In the view of the framers, there is no omniscience; there is only imperfect humanity. We therefore need checks on all of our various excesses, and a system that forces us to think through important decisions as best we can. This may well be the essential insight of our constitutional system: Since there is no perfection in human affairs, any system of government has to account for the permanent imperfections of the people who are both governing and governed, and this is best achieved through constitutional forms that compel self-restraint and enable self-correction.

This emphasis on moderating forms—that is, the focus on arrangements that impose structure and restraint on political life—is crucial, and it has always been controversial. Indeed, it is what troubled the progressives most of all about our system, and what troubled many other technocrats and populists before them. But as Alexis de Tocqueville noted a century before the New Deal, “this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak.” And he added, with his usual prescience, “Forms become more necessary in proportion as the government becomes more active and more powerful.” In other words, we need them now more than ever.

The framers’ formalism, with its humility about our knowledge and its limits on our power, is at work not only in our political institutions but in our economic system too. American free enterprise, like our constitutional system, establishes rules of the game that restrain the powerful and create competition that helps balance freedom and progress. And in economic policy, just as in politics more generally, that framework is undermined by a populism that wants to take from the wealthy and by a technocratic mindset according to which Washington should pick winners and losers. In economics and in politics, our defense against these dangers has to start with an adherence to procedural rules and forms that restrain the hubris of the powerful—defending markets, not coddling big business or soaking the rich; defending the Constitution, not advancing technocracy or populism.

It is no surprise that we find the same pattern in our economic and our constitutional debates. In fact, the humble assumption of permanent human imperfections and the humble desire for forms that might prevent large mistakes are at the core of the greatest achievements of the modern age: of constitutional democracy, of the free market, of the scientific method. Yet the most ardent champions of liberalism in our politics have too often failed to see the power of such humility, instead articulating a liberalism rooted in utopian ambitions or their mirror image—naïve resentments—all dressed up as a theory of justice.

The difference between these two kinds of liberalism—constitutionalism grounded in humility about human nature and progressivism grounded in utopian expectations—is a crucial fault line of our politics, and has divided the friends of liberty since at least the French Revolution. It speaks to two kinds of views about just what liberal politics is.

One view, which has always been the less common one, holds that liberal institutions were the product of countless generations of political and cultural evolution in the West, which by the time of the Enlightenment, and especially in Britain, had begun to arrive at political forms that pointed toward some timeless principles in which our common life must be grounded, that accounted for the complexities of society, and that allowed for a workable balance between freedom and effective government given the constraints of human nature. Liberalism, in this view, involves the preservation and gradual improvement of those forms because they allow us both to grasp the proper principles of politics and to govern ourselves well.

The other, and more common, view argues that liberal institutions were the result of a discovery of new political principles in the Enlightenment—principles that pointed toward new ideals and institutions, and toward an ideal society. Liberalism, in this view, is the pursuit of that ideal society. Thus one view understands liberalism as an accomplishment to be preserved and enhanced, while another sees it as a discovery that points beyond the existing arrangements of society. One holds that the prudent forms of liberal institutions are what matter most, while the other holds that the utopian goals of liberal politics are paramount. One is conservative while the other is progressive.

The principles that the progressive form of liberalism thought it had discovered were much like those that more conservative liberals believed society had arrived at through long experience: principles of natural rights that define the proper ends and bounds of government. Thus for a time, progressive and conservative liberals in America—such as Thomas Jefferson and Thomas Paine on one hand and James Madison and Alexander Hamilton on the other—seemed to be advancing roughly the same general vision of government. But when those principles failed to yield the ideal society (and when industrialism seemed to put that ideal farther off than ever), the more progressive or radical liberals abandoned these principles in favor of their utopian ambitions. At that point, progressive and conservative American liberals parted ways—the former drawn to post-liberal philosophies of utopian ends (often translated from German) while the latter continued to defend the restraining mechanisms of classical-liberal institutions and the skeptical worldview that underlies them.

That division is evident in many of our most profound debates today, and especially in the debate between the Left and the Right about the Constitution. This debate, and not a choice between technocracy and populism, defines the present moment in our politics. Thus the Left’s simultaneous support for
government by expert panel and for the unkempt carpers occupying Wall Street is not a contradiction—it is a coherent error. And the Right’s response should be coherent too. It should be, as for the most part it has been, an unabashed defense of our constitutional system, gridlock and all.

Because the Left has been so much more technocratic than populist these past few years, the Right’s response has naturally drifted into populist tones. That is appropriate, and it has been effective, but the tone must not overwhelm the substance of the Right’s critique. In this time of grave challenges, conservatives must work to protect the fundamentally constitutionalist character of the Tea Party, and of the conservative movement—avoiding the excesses of both populism and technocracy as we work to undo the damage done by both, and to recover the American project.

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center and the editor of National Affairs.

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