Law and Moral Obligation

Here and at Volokh, Ilya Somin and Mike Rappaport have been conducting a fruitful exchange over the extent of individuals’ moral obligation to obey the law, but the debate should not obscure the deeper and important philosophical ground on which they apparently agree: a shared assumption that the duty arises from something like an individual utility function. Their dispute seems to pertain to whether the individual should deploy his or her moral calculus at the personal (Somin) or systemic (Rappaport) level. The tougher question is whether any society so conceived and so dedicated—namely, one in which individuals calculate their moral obligation to obey the law as atomized individuals—can long endure.

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Friday Roundup, March 28th

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.

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Creed, Conservation and the American Founding

July 4 is separated from Bastille Day by a week and a half on the calendar but by eons in political culture.  The interim is an appropriate interval for reflection on why exactly the two events were so different.  One reason is arguably that America is precisely not what one might be led to believe from exclusive emphasis on the Declaration of Independence: a simply creedal nation bound solely by political belief.  The creation of a new people connected by creed alone rather than shared tradition and history would, like the French Revolution, have been a radical event.  As Willmoore Kendall would remind us, the American Revolution is better understood as a restorative or conserving one.

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The Judicial Dilemma of Originalism

For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.

Robert_BorkThe tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint.  Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities. 

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A Country for Compromising Men

In previous posts I’ve looked at what Raymond Bruckberger, formerly of the French Resistance turned student of American Constitutionalism, John Courtney Murray, and Willmoore Kendall have had to teach about the American commitment to modern republicanism and its theoretical and practical commitments for effectuating it. We should affirm Murray’s notion that

Civilization is formed by men locked together in argument” and then connect this to the American Proposition and its components of human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.

To do so permits a process of compromise, animated by principles while also informed by property and interests, history and legends, under a distinctive bond of reason that can be seen in the arguments over the Declaration of Independence, the Constitution, the state constitutional ratification debates, and the debate in the First Congress over the content and wording of the Bill of Rights. These debates display the compromise and the synthesis of the American constitutional tradition, and these foundational debates help achieve the constitutional consensus that can then be further debated and developed. The question stalking our tradition now is the resolute or ideological manner in which central questions are answered and the institutional mechanisms chosen to implement them. Put differently, our politics is war-like, and the answers for difficult social and socioeconomic questions are seen as too significant to be settled by the deliberate sense of the community.

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‘The True Sage of Woodstock’

How can reasonable men and women reclaim equality over and above egalitarianism? The first principled step is to get right with our compromised Declaration of Independence. This Declaration both affirms equality in self-government and reconciles our deeply contrasting Lockeanism and Calvinist Christianity as the basis of our liberty. This is an American Thomism of sorts, a reconciliation of seemingly opposed principles on the head of deliberative republicanism. It’s probably our best hope.

We should, however, look even deeper into our compromising. In doing so, we can recover John Courtney Murray’s notion that “Civilization is formed by men locked together in argument.” I offer Murray’s account to underscore his American Proposition. Its components are human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.

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Restoring the Deliberate Sense of the Community

A friend from high school, distressed by the results of Tuesday’s balloting, circulated a prayerful plea that President Obama’s re-election indicates “our nation is in a sinful state” whose consequences we must “suffer” until we repent our “wicked ways.”

This is what Robert Dahl identified as the phenomenon of intensity in politics.  Willmoore Kendall and George W. Carey identified its solution: the constitutional regime delineated in The Federalist—which means, Houston, we have a problem.

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Who is to say Nay to the People? Publius, Majority Rule, and Willmoore Kendall

The Enduring Importance of Willmoore Kendall

Once upon a time in America, conservatives celebrated Congress as the last best hope to preserve the authentic traditions of republican government.  As recently as the 1960s, it was “conservative” to look to the first branch of government as the indispensable bulwark against the Imperial Presidency, Supreme Court activism, plebiscitary democracy, and federal social engineering programs.  As long as the American people also looked to Congress to play this defensive role, the political system would remain intact.

       No postwar conservative was more optimistically wedded to this perspective than Willmoore Kendall (1909-1967).  Kendall, a defender of majority-rule (with some qualifications), particularly stood out among conservatives of his time as a fervent believer in the good sense of his fellow Americans to elect the “best men” to office.  Americans were at least capable of being the “virtuous people,” who would insist that Congress preserve the traditions of the Founding.  The principal evidence to which Kendall referred here was The Federalist, a text that he treated as political scripture for Americans.  Kendall insisted that the Federalist provides the best possible interpretation of the Constitution of the United States.  In his 1965 essay, “How to read ‘The Federalist,’” (which can be conveniently found along with his other major political essays in Willmoore Kendall Contra Mundum, edited by Nellie D. Kendall, University Press, 1994), Kendall explained why this great work of political philosophy laid out what conservatives ought to be busy conserving: a particularly aristocratic version of majority-rule.  “Publius,” the famed pseudonymous author of The Federalist, teaches

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