George Carey is the dean of constitutional conservatives. Since 1961, he has been professor of government at Georgetown University, where he’s a throwback in the best senseto the days when faculty cared as much about teaching as about publishing, and political science still had an intimate association with political philosophy. In voluminous essays and a handful of small but densely reasoned books, Carey has kept alive a tradition of scholarship that seeks to understand the American Republic as the Founders understood it.
Over the decades, Carey has made a profound mark upon his peers and generations of students, as Defending the Republic, a critical celebration of his thought, shows. Editors Bruce Frohnen and Kenneth Grasso have assembled 14 distinguished contributors to illuminate, and sometimes challenge, Carey’s ideas. Their essays explore half a dozen themes of his work: the contrast between a majoritarian republic and mass democracy; the clash between Christianity and the Enlightenment in the American tradition; the usurpation of legislative powers by the executive and judiciary; the fragile basis for public virtue; “constitutional morality”; and the rise of an activist ideology that may already have rendered the Constitution, as Carey fears, “a dead letter.”
Frohnen and Paul Gottfried provide the essential background to Carey’s thinking in the opening essays. To understand Carey, it helps to understand his friend and collaborator Willmoore Kendall, the “wild Yale don” (in Dwight Macdonald’s words) who was “the most important political theorist … since the end of World War II” (according to Jeffrey Hart). In the 1960s, Kendall and Carey co-authored several important essays, including an introduction to The Federalist. After Kendall’s death in 1968, Carey edited and completed another joint project, a slim, remarkable volume called The Basic Symbols of the American Political Tradition. After analyzing several of America’s foundational documents, from the Mayflower Compact to the Bill of Rights, Kendall and Carey concluded that the “supreme symbol” in American politics was not equality or individual rights but “self-government through deliberative process” conducted under a higher law.
Kendall defined himself as a “majority-rule democrat” and believed that the Constitution empowered the legislature over the executive and judicial branches. Carey has taken pains to show that this did not mean the Framers thought a majority should immediately get whatever it wants. They did not envision representatives as taking direct instruction from voters; instead congressmen and senators were to practice reasoned deliberation. The Constitution provides for a slow democracy. Yet even allowing for that, how does legislative supremacy square with the “separation of powers” and “checks and balances” that every schoolboy learns about?
Carey’s answer is ingenious. While the Constitution imbues the legislature with power sufficient to dominate the other branchesCongress can impeach presidents and judges, eliminate their salaries and budgets, override executive vetoes, and restrict the courts’ jurisdictionThe Federalist teaches statesmen not to abuse this authority. As Carey writes, “The Federalist, we may go so far as to say, provides us with what can appropriately be termed a ‘constitutional morality’ … it urges upon the rulers and ruled alike standards of behavior conducive to maintaining and perpetuating [the Republic’s] coherence.” Writing as Publius, Madison, Hamilton, and Jay composed an ethical as well as technical user’s manual for the Constitution.
Even the Constitution as modified by The Federalist cannot guarantee peace, liberty, and order, however. “Constitutional morality” itself rests on a deeper foundation, one for which the Framers could not plan: a virtuous people. This need is met, if at all, by civil societyespecially by churches and families. In the early Republic, despite sectarian squabbles among Christians and between Christians and deists, a consensus on family and moral life prevailed. As the United States grew more diverse, the common denominator changed from a Protestant to a broadly Judeo-Christian outlook. Today, a nation of 300 million may be too large to have any public orthodoxy. As more than one essay in Defending the Republic notes, Carey has become increasingly sympathetic to Antifederalist criticisms of Madison’s “extended republic”a republic too extended to remain republican.
But that is not the “crisis” of Defending the Republic’s subtitle. The constitutional order has been derailed not merely by a lack of cultural consensus but by the aggressive maneuvers of a new morality opposed to the ethos of the Federalist and the religious traditions of the people. Where the Framers emphasized deliberative process, the new moralityprogressivismdemands “responsive,” plebiscitary democracy. (Particularly in the form of presidential elections, which progressives construe as providing a “mandate” for specific policies.) And to ensure that the democratic values of equality and tolerance prevail, progressivism requires that courts overrule legislatures. The Supreme Court is the new morality’s weapon of choice.
Several of the essays in this volume explore the roots and ramifications of this ideology. Peter Augustine Lawler and Francis Canavan trace the new morality’s origins to the individualist philosophy of John Lockeindeed, Canavan follows the trail all the way to William of Ockham. Canavan contends that Ockham’s nominalism and Lockean liberalism have been imposed upon Americans through such Supreme Court decisions as Griswold v. Connecticut (which discovered a right to privacyand to contraception) and Roe v. Wade. William Gangi, in his essay “The Rule of Men: How Caring Too Much About Important Things is Destroying Constitutional Law,” takes the legal critique one step further and points to Brown v. Board of Education as, according to judicial progressives, “the birth of modern judicial review” and “causing Americans to care more deeply about all types of discrimination under law than ever before.”
Gangi’s essay is commendable for broaching, in Brown, a subject few conservatives want to revisit. That he does so is important since even well-intentioned judicial activism vitiates self-government. But Gangi’s essay also illustrates a weakness of many of the contributions to Defending the Republicthey do not carry their analysis far enough. Gangi mixes the structural case against judicial activism with his own policy preferences. For example, “by tying the hands of Congress and state legislatures on the matter of flag burning,” he asks, “haven’t the courts diminished their ability to foster essential values such as patriotism and communal solidarity?”
In fact, the courts have done something worseand very nearly the opposite. They have committed an offense not only against republican self-rule but against liberty as well, by depriving civil libertarians of the need to organize politically, persuade the public, and win power in the legislature. By offering cheap symbolic liberties like the “right” to burn a flag, the courts crowd out the cause of reasoned liberty in the wider political process. Moreover, legislators who will not debate civil liberties seriously will hardly deliberate prudently over questions of war or peace, economic self-responsibility or socialism, either. The result has been a national legislature, under Republicans and Democrats alike, that passes the Patriot Act without reading it, continues to fund the wars in Iraq and Afghanistan, and grants immunity to telecommunications firms that illegally give their customers’ data to federal agencies. The lack of deliberation in Congress, not coincidentally, mirrors the lack of serious and civil debate in our culture wars. The outcome in politics and culture alike has been a perpetual shouting match between antinomian liberals and authoritarian right-wingers, while constitutional traditions of republican liberty languish.
All too many conservatives have grown accustomed to guarding against threats to the Constitution from only one direction, the Left. Given the legacy of Woodrow Wilson, FDR, Harry Truman, Lyndon Johnson, and now Barack Obamato say nothing of Harry Blackmun and Ruth Bader Ginsburgthat shouldn’t be surprising. But after Nixon and Bush IIto say nothing of Earl Warren, the “liberal” Republican who as governor of California interned Japanese-Americans during World War IItraditional conservatives must recognize that there is an anti-constitutional Right as well.
Carey has always known this, and two chapters in Defending the Republic address characteristically right-wing deviations from constitutional norms. Gary Gregg II, in his commanding essay “No Presidential Republic,” observes that “the voices of James Burnham and Willmoore Kendall,” enemies of presidential aggrandizement, “have now grown distant and largely unrecognizable to contemporary conservatives. … we have become preoccupied by other issues and have become intoxicated by the potent elixir of power politics.” Indeed, it’s ironic that for the sake of appointing another Scalia or Roberts, conservatives vote for the likes of a George W. Bush. They would fix the courts by contributing to the hypertrophy of the executivewhile the most republican of our institutions, Congress, degenerates.
Today the Left is not the only vehicle for the new morality. Claes Ryn, in his his essay “Neo-Jacobin Nationalism or Responsible Nationhood?”, shows how the revolutionary ethos of neoconservatism has sought to supplant constitutional morality. Ryn finds a parallel between the multiplicity of ways of life in a federal republic and peaceable relations with other nations:
States, counties, local communities, and individuals can, through the responsible exercise of freedom, contribute in their diverse ways to the good of the whole. This traditional American notion can be extended to international affairs and be translated into the kind of cosmopolitanism that is required for responsible nationhood and peace in a multicultural world.
By contrast, the imperial attitudes of neoconservatives toward the outside world have dreadful implications for self-government at home, undermining the humility essential to constitutional morality. “The common good depends on a limiting of egotism,” says Ryn.
Every essay in Defending the Republic deserves close attention. Frohnen and Grasso have paid fit tribute to George Carey by assembling a Festschrift nearly on par with his own work. In our time, Carey’s writings are as essential a guide to constitutional morality as The Federalist itself is to the Constitution. Read him, and consult this book to deepen your understanding of our most distinguished constitutionalist.
Daniel McCarthy is TAC’s senior editor
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