Willmoore Kendall's 1787 Plan
Kendall believed in a free society that encouraged liberty within limits.
Willmoore Kendall liked his democracy straight up. He used the word to mean that the people’s will prevailed in politics. Decisions made without majority approval were minority-made and thus undemocratic. The chief quest of Kendall’s life was to preserve democracy in the modern world. His holy grail was to solve Rousseau’s conundrum that “Men are born free and everywhere are in chains.” The Genevan philosopher thought democracy incompatible with modern life in large countries. Kendall admired Rousseau. But he believed majority rule could thrive in a world of nation-states. In time, he found the answer to Rousseau’s riddle right under his nose. The U.S. Constitution, he discovered, provided a profound plan to reconcile democracy with modernity.
Commitment to democracy preceded Kendall’s belief in a benevolent Constitution. As a young scholar, he accepted the progressive portrait of the Constitution as a device to protect monied interests. He saw the Electoral College, staggered elections, etc. as designed to frustrate the masses. Kendall moved to the right after World War II, but his commitment to majority rule remained unshakable. Labeled an “absolute majoritarian,” he believed 50 percent-plus-one of the people had the right to decide matters. Fifty percent-minus-one had the duty to obey. Thus, Athens had acted rightly to put Socrates to death. Any people, he suggested, needed the ability to perpetuate its values and to sanction those undermining them. The USA also had good reason to defend itself against those, such as communists, who worked to subvert its core principles. In championing these principles, Kendall even dared defend Senator Joseph McCarthy. So he was blacklisted from the higher echelons of academia and the federal bureaucracy.
Being canceled gave Kendall more time for his real forte: political theory. Kendall’s best work analyzed key historical texts to bring out facets of them that previous scholars had glossed over. In his John Locke and the Doctrine of Majority-Rule, for example, he argued that Locke had prioritized community sovereignty, including imposing the death penalty (Chapter 1 of the Second Treatise) over life, liberty, and property (Chapter 2). To refine his absolute majoritarianism, Kendall turned his expository powers to the Constitution. Analyzing its language, Kendall demonstrated that the document was a solemn act of political creation. Rather than “declaring” or “holding” truths, as the Declaration did, the Constitution “ordained” and “established” a new political entity. Kendall also noticed, contra his previous views, that the document was fundamentally democratic. Its first three words, “We the people,” asserted the right of Americans to create whatever government they wanted. The intent of the Constitution, proclaimed by Franklin in September 1787 and reiterated in The Federalist, was to promote the “happiness” of the American people.
Such happiness would result, thought Kendall, if the new government balanced the six goods listed in the preamble. These included union, justice, domestic tranquility, common defense, general welfare, and liberty. Asserted by the people, such principles were not inalienable. They could be lost through corruption, deceit, or stupidity. Each existed in tension with the others. Low taxes could bring prosperity but enable foreign invasion. Demand for unity might squelch freedom to debate, and so forth. To promote the people’s happiness—and to balance the principles of the preamble—was therefore a tough task. The framers, he maintained, were seeking a realistic path forward. Kendall, together with Madison, saw perfection as suited only for angels. Human beings had to compromise. As an anti-utopian treatise, the Constitution encouraged democratic realism. The chief attribute of the political system it established, Kendall suggested, was give-and-take among elected officials. Each such official represented a unique slice of a large and varied nation.
Such negotiations revealed the “deliberate sense” of the community. Deliberate, as used by Kendall, entailed multiple meanings. It meant intentional. Action would have a purpose in mind. Deliberate meant deliberated, for discussion and debate would precede action. And deliberate often meant slow, with changes enacted only after some consensus had developed. Writing the Constitution had itself exemplified this process. Working through disagreements for months, delegates had forged bargains over every line. By talking, listening, and compromising, they produced a blueprint for the world’s longest lasting democracy. Kendall argued that this deliberative process constituted the vital center of American politics. The aim was to achieve communal consensus through negotiation. The virtuous community (working with an eye to Christian principles) would deliberate to build the society it thought best.
Madison and friends improved the “pure” democracy of ancient times in two ways. First, they created a representative system in which elected officials controlled state functionaries. Democracies, said Kendall, needed someone to “ride herd” on bureaucrats to ensure they carried out the people’s will. In a Greek city-state, citizen assemblies performed this function. Larger entities required elected representatives to do the job. Second, the Constitution put in speed bumps against rash action. The Framers had stabilized democracy by making hasty, ill-considered action difficult. By seeking to carry out the people’s will but discouraging flights into anarchy, the Constitution became the greatest device ever invented to uphold and extend democracy.
Kendall disliked rights talk. Like the authors of The Federalist, he championed the original Constitution of 1787 unamended by the Bill of Rights. He knew rights could not be absolutes. If life, liberty, and the pursuit of happiness were actually inalienable and could not be taken away, then the United States could never have allowed the war, prisons, conscription, taxes, eminent domain, or traffic tickets. By putting certain subjects beyond the reach of politics, rights were also undemocratic, preempting the people from deciding issues they regarded as important, as with same-sex marriage today. Nor did enumeration of rights prevent their violation. What Madison preached in Federalist 48—that “parchment barriers” would be breached in troubled times—Kendall learned from personal experience. During World War I his father, Reverend Willmoore Kendall Sr., lost his pulpit for preaching against Liberty Bonds. For actually protecting speech and the free exercise of religion, then, Kendall Jr. knew by age nine that the first amendment was merely paper.
Kendall also took a dim view of equality talk. If the word means what it purports to mean—a state of being exactly the same—then, he said, “it does not and cannot exist.” Maybe Jefferson and Lincoln really meant equal treatment under the law or an “equal right to compete with others.” But the word equality meant and means more than that. Liberals, said Kendall, saw equality as “the leveling of all significant differences.” They would never stop pushing it until “the last molehill of privilege shall be steamrollered level with the plain.” Even equality of opportunity, he noted, becomes horrifying if taken literally. It would demand destruction of the family, 100 percent estate taxes, and genetic engineering, lest anyone benefit from a tiger mom, inherited wealth, or native ability. Instead of equality, Kendall suggested, the United States ought to be devoted to justice. Under this standard, each person receives what he deserves, with equality in some spheres of life but not in others.
Kendall’s views on natural rights, enumerated rights, and equality have caused many to misread his political theory as an attack on freedom. In fact, Kendall distinguished between the “free society,” which he supported, and the “open society,” which he deplored. Society should cherish free speech, but to survive no society could long tolerate those cheering on its demise. Likewise, Kendall believed in private property. Abrogating it amounted to theft, except when necessitated by the purposes set forth in the preamble to the Constitution. Moreover, said Kendall, the only way to achieve a completely open society, which protected words and actions that most citizens abhorred, was to coerce the majority into accepting a society it did not want. In time, supporters of the open society would have to silence those who opposed their agenda. Premised on absolute freedom, the open society tended toward tyranny. A free society, on the other hand, encouraged liberty but within limits which allowed it to protect its values and freedoms.
Seeing deliberation as central to democracy, Kendall proclaimed Congress the most important part of government. It was the most democratic branch and ought to be the most powerful. Congress remained closest to the people. Its members represented communities with specific interests and peculiarities. Congressional elections concerned real issues of local import. Legislators remained more aware of the needs of their constituents than a president, or a Washington bureaucrat, or a Supreme Court Justice might ever be. Congress could negotiate solutions to various questions, considering the needs of all parts of the nation. Facilitating rough consensus and relative harmony, this process helped democracy thrive.
To diminish Congress’s authority or deliberative faculty weakened democracy. For this reason, Kendall decried excessive partisanship. Competition between disciplined and ideologically distinct parties would nationalize all issues. Local interests would be ignored. More dangerous yet was what Kendall labeled the Great Bureaucracy (now called the Deep State). This triad of self-proclaimed experts—federal bureaucrats, academics, and journalists—dominated American society. Controlling elite universities, big media, and federal officialdom, a liberal elite monopolized how important political questions were decided, how they were framed, and the factual narratives underlying them. Battling this dragon was difficult. As the most direct voice of the citizenry, only Congress possessed the strength to bring the common sense wisdom of the people to bear against the pride and power of this unelected expert class.
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Kendall always remained optimistic that Americans could rule themselves democratically. Instincts toward personal liberty and majority-rule democracy were part of their ancestral inheritance, possessed deep down in their bones. The people as a whole were wiser and less corrupt than any elite, however mighty. To answer Rousseau’s riddle, Kendall adopted the method championed by Edmund Burke, Rousseau’s nemesis. Instead of building a new political world from scratch, he looked to the American heritage. In the Constitution Kendall found Burke’s “virtue and wisdom beyond the vulgar practice of the hour.” Aside from its practical wisdom, he knew the Constitution had become a symbol of the democratic ethos of the American people. The role of political thinkers like himself was to guide the people to know their own strength to use as needed against enemies of majority rule.
Our media now report on secession, Caesarism, and civil war as real possibilities. Right-wing fire-eaters despair of America and crave a savior: a Caesar, a Lincoln, or a Trump. In my view, and what I think would be Kendall’s, we ought not put our faith in princes or presidents but in the people. To dig out of the current crisis, we should double down on the Constitution by reviving Congress. Most importantly, Congress has to assert control over the bureaucracy. The 2022 Supreme Court decision in West Virginia v. EPA, restricting bureaucratic rule-making, is an encouraging step. So are plans for Congress to investigate political interference by federal intelligence agencies. Restoring real deliberation in Congress is also badly needed. Dissidents in the recent Speaker of the House election zeroed in on this point. By banning omnibus spending bills, requiring seventy-two hours to read proposed bills, and allowing more freedom for amendments, these stalwarts made progress toward restoring the deliberation that lies at the heart of American democracy.
Kendall would have been pleased. In grandiose moments, I’ve imagined producing a counterpoint to the 1619 Project and the 1776 Report. Maybe called the 1787 Plan, it would highlight the importance of majority-rule democracy and discovering the deliberate sense of the community. Then I realized such effort would be superfluous. The United States of America is the 1787 Plan. When it prospers, the plan is working. When it perishes, the plan is dead.