A Response to Ken Masugi’s “The Right against America”

Ken Masugi argues that conservatives and libertarians must be “radical to grasp the truth.” He certainly is radical in casting Robert Nisbet and, with him, it would seem, other Burkeans who see little platoons rather than isolated individuals as the building blocks of society outside “the foundation of American politics,” which Ken identifies with the Declaration of Independence.

There are reasons to doubt that the Declaration rather than the Constitution is America’s founding document. Foremost among them, Willmoore Kendall and George W. Carey remind us, is that its self-conscious purpose is merely to announce a separation with Great Britain while supplying no direction for the political order that will result, whereas the Constitution explicitly indicates an intent to “ordain and establish” a regime and gives the details for how it will operate. But if we are to look prior to 1787 for America’s foundations, we might as well go all the way back, and that means to the Mayflower Compact, a document whose animating symbol (Kendall and Carey again) is deliberative self-government, not individual rights.

It has become commonplace to see the Declaration as a radical break with this tradition—and, in some circles, the Constitution as a radical break again—but a continuum of this symbol is clearly traceable. Ken notes that the conservatives and libertarians published in Natural Rights, Individualism and Progressivism agree that the Declaration pertains to individual rights. But they do not settle the question simply in this one volume, and certainly not within the parameters of conservative thought. A range of distinguished commentators has questioned the individualist interpretation of the American Founding. Kendall and Carey are perhaps foremost among these. Barry Alan Shain, Ronald M. Peters and other thinkers join them.

One reason, as I argued last month in this space, is that the individualist reading renders the Declaration’s purported inalienability of the rights to life, liberty and the pursuit of happiness nonsensical. In a Lockean context, these rights are not only obviously alienable—that is, exchangeable for an equivalent—by individuals, their alienation in exchange for the protection of the community is the entire basis of political society. The “corporate” reading of the Founding suggests, instead, that it is the American people, as a political community, who possess the inalienable rights of the Declaration. Thus it is “the people” who possess the right to alter or abolish an abusive government, and the Declaration announces its intention to dissolve the bands linking “one people” to another. Similarly, the violations of rights of which King George is accused—which form the much-overlooked heart of the Declaration—consist mostly not of trespasses against individuals but rather of impediments to deliberative self-government by the community: “For suspending our own legislatures,” for doing thus-and-such “without our consent,” etc.

The core natural right here would appear to be self-governance, which has the benefit of rendering the Declaration reasonably consistent with the tradition that both precedes and follows it—in the latter case, the Constitution, whose Preamble does not mention equality as a goal of the regime. Some argue this is because the Constitution was an insidious project to protect slavery; others that it was an equally sinister scheme to shield elite wealth. But equality encompasses far more complex theoretical conditions than either the racial equality that was properly encoded in the Constitution in the Civil War amendments and legally achieved in the civil rights movement, or the economic equality Progressives sought. A general declaration that equality was the foundational purpose of the newly independent American states would have involved the signatories to the Declaration in a volatile theoretical project there is scant historical evidence they intended to join.

Masugi is, nonetheless, absolutely correct to note that the Declaration is both practical and abstract. The question is what it practically protects. If, indeed, it protects individuals absolutely against the authority of the community, it is difficult to see what justifies the hardly individualist “wisdom of the serpent” that Masugi, with Steve Knott, asserts is necessary for national defense.

Nor is this an abstract debate. A great deal is at stake. While I would not impute such views either way to Masugi, the individualist interpretation is conducive to the sort of judicial supremacy that has empowered the courts to protect individuals against the judgment of the community. It is, in turn, hostile to the view—here we must defend Nisbet’s honor and, with it, Burke’s—to the Aristotelian belief that the political life is best for man.

Ironically, this desire to construct society on the basis of individuals, as Tocqueville teaches, ultimately leaves individuals alone and exposed, their rights less secure than in a context in which the community is habituated to respect them. As Mary Ann Glendon has argued, rights talk tends to leave individuals with their rights and little else. It is attachment to intermediate institutions—family, religious groupings, civil associations—that gives rights genuine security and meaning as opposed to simple legal prescription.

That is not to say there is not a legitimate individualist case to be made for the Declaration. There is. But there is a conservative case for community that—as finely as Nisbet embodies it—well precedes him, and the Declaration too. To cast it aside as hostile to the Declaration is also to sweep away the long tradition in which that document—and we still today—stand.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. craig says

    Any claim of self-governance is dependent upon the definition of ‘self’.

    One of the Crown’s replies to the Colonial cry of ‘no taxation without representation’ was that of course the colonists as British subjects were represented by Parliament; their interests were bound to be considered despite the fact that colonists had no actual vote over any particular representative’s seat.

    Enlarge the definition of ‘self’ widely enough and you can invert the meaning of any individual right into an ultimately meaningless collective ‘right’. Second Amendment haters have been trying that for decades, and are still trying despite the Heller decision. Put at least 5 hardcore feminists on the Supreme Court, and one could imagine a future decision (presumably citing Lawrence and Casey) declaring ‘life’ as a collective right belonging to the family, and defining ‘family’ as a relationship based upon the mother (citing any local family court), thus granting her exclusive right to abort or euthanize family members at will.

  2. gabe says

    to Greg: Balderdash!!!
    to Craig: Absotively and posilutely!!!

    I believe Mr Weiner is wrong on several accounts. even if we accept his argument that the american republic is not founded on individual rights, but , is rather, the collective action of a “platoon”, one need only look at the opening lines of the Preamble to the US Constitution to see the error contained in his assertion that the constitution is the founding document. “WE THE PEOPLE”, (CAPS IN THE ORIGINAL), is an assertion that a people already exists prior to the words that follow. Those three words presuppose an existing predicate, with specific objects in mind, upon which the People have formed themselves to assure their happiness. Review the commentary of Jefferson and Madison (Summary Review and Virginia and Kentucky Resolutions, etc etc) to see how the founders saw themselves and the formation of a people. In other words, creation of a positive law or constitution does not create a people.
    One must ask, then: What is the precedent statement to the Constitution?
    Was it the Ordinance? Obviously not. We are left with the Declaration as that unified statement of what the American Republic was, and ought to be.
    Mr Weiner, then “suggests” that we may as well go back to the Mayflower Compact
    as that asserts the right to self governance. Indeed, it may – but under conditions and predicates much different than those found in the declaration. At that time, British subjects, which the colonists certainly were, still operated under the assumption that rights were granted either by the Crown or Parliament. Can one argue that the same is true of the founding documents. Poppycock!!! (to remain in the spirit of the times). No, the crucial difference was in the assertion that these rights inhered in human beings and were not gifts of the Crown or the state.
    Again, we come back to the Declaration and other antecedent writings of Jefferson, Madison, et. al.

    However, Mr Weiner also conflates individual rights as the founders understood them with the current progressive view of rights as Craig points out in his response. Jefferson and others were no libertarians and were always conscious of the need for temperance of individual prerogatives. The need for prudence, reason and a certain grace in living, were to their minds mandatory if the republic was to survive. does this mean that they did not believe that government could only be justly founded on individual rights. Decidedly not!!! Their conception of self was that it was inviolate – that no one could be compelled to be governed by any other being similarly situated – but that rather, as man is a rational being, he consents to joining others in an effort to assure certain rights (perhaps, more accurately, to reduce the risk of his rights being abridged by a stronger individual).
    It is in the act of INDIVIDUAL consent to join into society that such “platoons” are formed. This does not diminish the the individual rights which inhere in human beings. It serves only to enhance the likelihood of the individual being able to freely exercise those rights.
    Where Mr Weiner wishes to take us is actually where he asserts that Ken Masugi will lead us – Judicial Supremacy. Mr Weiner ‘s assertion is valid only if one accepts the Progressive view of individual rights. I doubt the Ken Masugi subscribes to such a utopian view of individual rights – nor did the Founders who consistently demanded virtue, a good religious sense and reason of the people.
    On the contrary, it is Mr Weiner, who in previous posts has exalted “precedent” as the cure for what ails us when in fact a return to first Principles may be all that is needed. At what point was it appropriate to do away with the perambulations of pre_Newtownian celestial mechanics. After, there was much precedent for it.

  3. says

    Well, I think that any check of Roger Williams and Dr. John Clarke and their founding of Rhode Island would reveal a more individual oriented view of society and government. However, the Declaration is like unto a preamble to a covenant, in this case, the Constitution. Seems America was simply adhering to its Christian roots. In fact, the American Historian in the first half of the 19th century, Dr. George Bancroft, called the US, “a Calvinistic republic.”

  4. says

    The present defense of the individual is a smoke screen for a collectivist nightmare, coming out of our Ivy League and state universities. Way back in the 60s I had world renown Marxist for a professor in a Sociology in a small Black state university in the Midwest. He spent five minutes telling us what the textbook should have said and 50 minutes telling us how communism was going to beat the snot out of capitalism. I wrote a paper for him on the emancipation of the working class, pointing out, vide Milovan Djilas, The New Class, how that communism had merely produced a new class, one more greedy, rapacious, and terrible than any other in history. He liked the answer and wrote good in red, his highest grade they said. Anyway the students use to agree outside that he had to be a communist (and that was Blacks and Whites talking to each other). Later an anticommunist crusader, one with a Master’s from Yale and one from Columbia, a real anticommunist crusader who knew what he was talking about, told me that the fellow wrote works that were read by the rulers of communists countries in order to know how they were supposed to rule those nations. And then I taught for two years at SC State, and visiting professor from Princeton called my professor, “An Unsung Marxist Hero.” Later, our son at a State Univ. was going to study Marxian Theorists, and he showed me his course syllabus. In the middle of the semester was listed my professor from some 25 years earlier> Later I worked in a place grading papers and we had some communists from Rumania there, and I told one of them, a female, about him. She got so mad she cussed me out. Later, she apologized. I guess because she realized that I might know something about their plans for America. Greg Autry, Jerome Corsi, and M. Stanton Evans were on booktv.org this past Saturday telling pretty much the same tale, that these folks seem bent on our undoing. I wonder, if they ever realized that the USA was a nation of warriors from the get go, they had to be to survive. I remember shooting a gun, when I was six. Got my first 410 shot gun for a Christmas present from my dad, when I was 9. Being raised by my grandfather, a man born in the 1800s who could still hit a dime at 50 years or so with a 22 rifle in his old age (I heard of one who could cut 3 aces turned edgewise at a 100 yards with a Kentucky Long Rifle at the age of 80). And my great grandpappy could do a fast draw and shoot the head off of a guinea hen in the yard for Sunday dinner. So I was told. I remember reading about B.H. Carroll, the famous Southern Baptist minister, theologian, and founder of Southwestern Baptist Theological Seminary, doing a fast draw and shooting a bird on the wing and how his brother, J.M., just died laughing at the demo, as B.H. was the poorest shot in the family. The Japanese, some say, did not try to invade the West Coast, because they feared their army would get bogged down fight individual Americans as the latter all armed.

    Even the hunting crossed of Wisconsin constitutes enough shooters to be the 6th largest army in the world, so I understand from my reading. Just think what Texas, and all of the other States must constitute, not counting the northern states like Pennsylvania, Indiana, and Illinois, plus all of the Northwest and Southwest and Missouri and the Middle West. Here in North Carolina we have folks who think nothing of traveling all the way to Missouri or Montana or Colorado to go hunting. And some folks want to take these fellows on! Besides, how many of these hunters come out of military and are trained for war? If I was thinking of a revolution, I think I would go somewhere else.

  5. gabe says

    Whiskey Tango Foxtrot!
    Oops, I am revealing myself as one of those closet ex-military Marxists masking his true sympathies behind the defense of individual and natural rights.
    Surely, Good Doctor, you mean to say that THE Progressive exposition of individual rights is an enabler of communitarian tyranny.

  6. says

    I believe the Declaration is the founding document. We cannot ignore that it’s “founding” eventually did lead to the “political order” of the Constitution. And we cannot ignore the “individuals” in the convention who became the “platoon” of signatories of the document.
    I have no grind with Mr. Weiner. He has given us all the opportunity to express ourselves as an “individual” — as he does himself. (And I am reminded of the progressive movements of conservatives – and liberals – who, as an “individual” gave lead to “platoons”.)
    The post comments of Gabe and Jim are also the “individual” in this post.
    I would add, Greg, that this particular post has been very entertaining – as an “individual” Constitutional originalist.

  7. Greg Weiner says

    Where to start: It is unclear to me how we got from a theoretical discussion of the roots of the American republic to repealing Newtonian mechanics, mothers (mothers?) euthanizing their families and revolutionaries meeting armed resistance from hunters in the hills of Wisconsin. At any rate, I certainly did not say the republic was the “collective action of a platoon.” I said society was comprised of “little platoons,” which was an allusion to the description of the family offered by Burke, whose credentials, I hope, are safe here. The importation into the Declaration of the Lockean concept that society is comprised of individuals who consent to join it, I’m afraid, simply overlooks the development of an indigenous American social compact tradition that far precedes the publication of the Second Treatise and that incorporates the limits of natural law, regulable by the community, into natural rights (see, among others, Phillip Hamburger, “Natural Rights, Natural Law and American Constitutionalism,” Yale Law Journal, January 1993). The regulability of rights by the community (which is, by the way, precisely the argument Justice Scalia made in the cases that, surprisingly, Craig cited) is further implicit in the alienability of the individual rights to life, liberty and happiness—a difficulty with which none of the critics above contend—and manifest in such thinkers as Madison, whose Virginia Report explicitly acknowledges the community’s authority to regulate speech and press, and whose retirement writings are infused with emphatic endorsements of majority rule over assertions of minority rights. This is not to say individuals do not have rights; it is to say rights have limits. The leap from here to some sort of Progressive collectivism is simply unsupported by anything I wrote—on the contrary, the heirs to the Progressives *denied* that rights had limits (see the Warren Court), so I am unsure in what conceivable sense I could be espousing a Progressive theory of rights—and the further leap from there to imputing a broader Progressive agenda to me is unsupported entirely. (Incidentally, I do not recall having “exalted precedent” in this space; perhaps Gabe refers to tradition, to which I plead guilty, and which I hope is not frowned upon in these circles.) In any event, if the idea that rights have limits regulable by the community is “Progressive,” or subject to other epithets, I will have to comfort myself with distinguished company, Burke, Madison, Kendall and Carey included.

    • gabe says

      thanks for the response!
      I have not, nor do I, assert that the individual is free to act without regard and without circumspection by the community – and I certainly did not assert that Jefferson or Madison did either. While we can place varying emphasis on musings of the Founders at different times in their lives, what appears to run through all their thinking is a profound appreciation of the value of an INDIVIDUAL human self. To this they added the requirement that people act with reason and prudence – which i interpret as meaning being in compliance with societal norms. The trick was to protect the rights of the minority and individuals. Recognizing this is a far cry from denying the the underlying creed of the Declaration and its’role as the foundational document.
      With respect to “precedent”, I was referring to a piece you posted a while back in which you assessed “precedent” as necessary and required. My point here was only to indicate that as precedent is a “tool” of judicial review (after all, it is a judge who is to consider precedent) that it was unfair to ascribe to Ken Masugi’s position a preference for judicial review>
      Lastly, neither myself nor Craig (I assume) are asserting that YOU support the Progressive theory of rights – only that your particular critique in this instance appears to require that conflated rights theory for your current argument to hold water.
      Anyway, rather enjoyed the whole thing.
      (P.S. You don’t happen to have a brother Doug working as an engineer in the hi-tech industry?)

  8. says

    Upon rereading, Greg takes us from here to there – and back. Enough for the individual thought process to create argumentation conducive to debating suggestive matters on a singular commentary, which I believe I may have done in my commentary.
    I agree with Greg that “individualist interpretation” has been conducive to the courts. Greg’s “Attachment to intermediate institutions—family, religious groupings, civil associations—that gives rights genuine security and meaning as opposed to simple legal prescription” is right on. The legal prescription, for religion, from the courts for years, has been against the community, unfavorable to the Ninth and Tenth Amendments, and for the individualist. Interestingly, reversed, the States and the people have the “legal prescription” for the individual, in their State Constitution. Do I still believe that the Declaration is the founding document? I still do. Jefferson did not stop with the Declaration; he went on to the “political order” of the Constitution. His Second Inaugural Address enunciated his commitment to the Constitution – the States and the people.

  9. John Ashman says

    Mr Weiner, I honestly haven’t seen anything this subtly nonsensical since some of Candidate Obama’s earlier speeches. Is there any way you can make a real argument and put a point on it? Are you arguing for national socialism or…..?

  10. CJ Wolfe says

    I’m very interested in this phrase you use several times Greg: “deliberative self-government.” I may be terribly ignorant here, but who uses that specific phrase?

    It sounds similar to Madison’s phrase, that the “cool and deliberate sense of the community” ought to rule, but it’s not quite that. Throughout the Federalist Papers when Madison uses that phrase or a similar one, he always ties deliberation to the common good or “public good,” the goal toward which the deliberation aims.

    In my opinion, most of the Founding generation (see for instance the state constitutions) did embrace the individual rights of the Declaration, and they embraced them as part of the common good which the deliberation encouraged by the Constitution aims toward. Perhaps the main goal of American government is the protection of individual rights; some of what you say loses sight of this point Greg

    • John Ashman says

      As I understand the Framers, there were two basic groups. Ones that viewed the Constitution as limited by the very nature of being a Federal Compact, and wholly without the delegated power to trample natural rights, and those who simply didn’t trust government and wanted invidual rights both spelled out and protected by law.

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