On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism.
In an important sense, everyone must be a multiculturalist, because each culture is itself a multiculture. Take the social and political culture of the West. It is famously constituted by a dialogue between two intellectual poles—Athens and Jerusalem—a culture of reason and a culture of faith and tradition. But, of course, the culture of the West is not only a social and political culture but an aesthetic one. And here it is composed in part of all sorts of national cultures that are themselves the products of subcultures within the nation.
All cultures thus are mongrel cultures. A culture is also never static but always in motion propelled by collisions with others. And what emerges from the collisions is the result of millions of choices of individuals over generations who determine how to mix and match what many cultures offer them. At its best what underlies all multicultures is the dynamism of liberty.
Unfortunately, much that goes under the name of multiculturalism today is a multiculturalism of coercion.
One way of understanding American history is as a struggle between consequential Presidents who expand liberty and consequential Presidents who expand the state. On this view, most Presidents are frankly not all that important: their decisions are marginal and many are reversed or substantially modified.
If so, Donald Trump’s victory had an important benefit for liberty, even if he himself is no classical liberal, because it prevented Barack Obama from being a consequential President on the statist side of the ledger.
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
In A Culture of Growth: The Origins of the Modern Economy Joel Mokyr has located the source of the industrial revolution in the culture of the Enlightenment. The Enlightenment prioritized the idea of human progress. As a result, people began to think constantly of finding material in the world to make new technologies for human betterment. The Enlightenment also replaced more scholastic modes of thought with scientific method. As a result, people began intensively to test both new theories to see if they explained the world and new mechanisms to see how they would move the world. As a consequence, the Western economy began to grow at a rate never before seen in history.
A Culture for Growth is a wonderful book to which I cannot do justice in a short post. Mokyr is in equal measures a great intellectual historian and a great economist. He sees the cultural change of the Enlightenment as transforming the incentives for economic and intellectual activity. It removed taboos that impeded progress and created a market where the best new ideas rapidly gained a large market share of elite approval. This book is welcome for many reasons, but not least because it is a blow to tedious, tendentious, and false political correctness about the roots our our prosperity. The Enlightenment was indeed key to material progress that helped the least well off, first in the West and now more broadly throughout the globe. And yes, it was the product almost entirely of dead white men, and relatively wealthy ones at that.
Although this is not his focus, I believe Mokyr’s book also establishes the crucial link between the levers of the Enlightenment and the growth of liberty.
Has there ever been a July 4 other than during the Civil War or the Great Depression where the domestic prospects of our nation have been so dismal? No presidential contest has ever featured a choice that was as obviously dreadful as this one. I would be happy to hear of contrary claims from the annals of American history, but to me even Nixon v. McGovern falls short of our present plight. Nixon’s role in Watergate was not known at the time of the election, and McGovern at least was a man of good character.
But today we are about to elect someone with disabling character flaws and no commitment to the liberty that has been at the core of American ideals. On character, both Trump and Clinton have reputations for dishonesty unusual even for politicians. They also excel at dividing the American people, Trump with his outrageous remarks about ethnic groups, Clinton with her penchant for blaming her and her husband’s troubles of “vast conspiracies” of her political enemies even in instances where she has every reason to know the cause of these troubles is in her own home.
And these character flaws threaten to widen some of our most dangerous fault lines. Trust in government is at one of the lowest points ever. A President widely regarded as dishonest will exacerbate the trust deficit. Americans are more polarized than at any time since the Second World War. Polarizing figures making uncivil remarks about one group or the other are sure to lead to a more divided nation.
I am going to Paris this weekend, because the OECD invited me to present on law and technology. A visit to the city of lights should be a delight, but sadly it looks like mine will be darkened by national strikes. Unions are trying to pressure the Socialist government to drop mild reforms to French labor laws that would make it somewhat less expensive to discharge workers. Currently, workers who are not on short-term contracts have close to life tenure. The absurdity of this regime was underscored just this week, when a French labor tribunal held that a bank wrongly discharged a worker who had caused it billions of dollars of losses through illegal trades!
The sturm und drang about moving France ever so incrementally toward a free market shows the continuing importance of a nation’s founding principles. Our revolution and Constitution embedded principles of classical liberalism in the DNA of America. In contrast, the French Revolution created an enduring political norm demanding substantive equality, not merely equality under law. It is worth looking at the consequences of these different principles, because the renewed focus on inequality in the United States is fundamentally an attempt to make our core political concern be equality rather than liberty.