Outside the Beltway

Is Our Problem a Lack of Public Virtue?

Are we betraying the Founders?

Steven L. Taylor · Sunday, April 28, 2024 · 14 comments

Writes Robert Kagan in WaPo (We have a radical democracy. Will Trump voters destroy it?):

How to explain their willingness to support Trump despite the risk he poses to our system of government? The answer is not rapidly changing technology, widening inequality, unsuccessful foreign policies or unrest on university campuses but something much deeper and more fundamental. It is what the Founders worried about and Abraham Lincoln warned about: a decline in what they called public virtue. They feared it would be hard to sustain popular support for the revolutionary liberal principles of the Declaration of Independence, and they worried that the virtuous love of liberty and equality would in time give way to narrow, selfish interest. Although James Madison and his colleagues hoped to establish a government on the solid foundation of self-interest, even Madison acknowledged that no government by the people could be sustained if the people themselves did not have sufficient dedication to the liberal ideals of the Declaration. The people had to love liberty, not just for themselves but as an abstract ideal for all humans.

Americans are going down this route today because too many no longer care enough whether the system the Founders created survives and are ceding the ground to those, led by Trump, who actively seek to overthrow what so many of them call “the regime.” This “regime” they are referring to is the unique political system established by the Founders based on the principles of universal equality and natural rights. That, plain and simple, is what this election is about. “A republic if you can keep it,” Benjamin Franklin allegedly said of the government created by the Constitutional Convention in 1787. This is the year we may choose not to keep it.

Emphases all mine.

Part of me wants to say, yes! That’s the problem! It’s a deficit of public virtue!

At a minimum, more virtuous and a more seriously-minded citizenry would be great!

In all seriousness, I do believe that if the public better understood politics and government, that would be an unvarnished good. And yes, I would love it if Americans “love[d] liberty, not just for themselves but as an abstract ideal for all humans.

Now, I will state that I think that Kagan’s introduction to his essay, and much of the content of the essay itself comes from two different point of emphasis that can be harmonized, but that are more at odds, in my mind, than he allows. On the one hand, I think he takes a far too uncritical view of both the US Constitution and the Founders. On the other, he fully acknowledges the historical presence of illiberalism in the US.

Ultimately, he is writing about the liberal tradition (philosophically defined, not in terms of contemporary partisan definitions) and what he calls the anti-liberal right. This framing is actually better than one about public virtue, or even constitutional design, in my view.

This is a real tension that is often made worse by what the word “liberal” is often seen to mean in American politics and also the complex reality that both American liberalism and American conservatism share some intellectual roots in classical liberalism (the Declaration of Independence being a pretty clearly classically liberal document). And, in general, the notion of republicanism (in this case meaning popular government not linked to monarchy or aristocracy) is likewise classically liberal.

The waters get muddied, and some of the divergences that Kagan identifies in his discussion of the anti-liberal right is that American conservativism (again broadly defined) relies to some degree on tradition (including religious and cultural traditions) and that creates a tension with more progressive (minimally defined here as an ongoing improvement of human rights and conditions) since progress often means relative loss of power and influence by traditional powers.

My initial reaction to the bolded parts above is that Kagan is drawing on a mythological view of our past and of the system. And, in fairness, he does acknowledge historical defencencies in the piece, where he talks about anti-liberal Americans. I just think he is still mythologizing the Founders as well as the virtues of the Constitution (insofar as it contained some vices as well).*

So while acknowledging that Kagan is not ignoring this reality in the piece, his framing still made my mind go to the following. And, further, I think he is mythologizing in the sense that he is thinking of the entire founding generation as holding liberal views, which I don’t think is accurate.

I mean, when, exactly, did we fully love liberty “as an abstract ideal for all humans?”

Was it in 1789 when the US Constitution went into force? That was when most states required property or income qualifications for voting. That was when women did not have full rights. Oh, and there was that pesky problem of chattel slavery being legal.

What about 1857 when a 7-2 majority of the Supreme Court ruled that all that stuff about unalienable rights given at birth by the creator in the Declaration of Independence did not apply to Blacks?

Was it in 1861 when states seceded to protect the institution of slavery?

Was it is when Black males (but, again, markedly not females of any type) were given the right to vote in 1870 via the 15th Amendment but wasn’t enforced until the Voting Rights Act of 1965? (We won’t even get into ongoing efforts, to this very day, to make voting more difficult for citizens).

How about during Jim Crow?

What about during westward expansion?

Or when we interred Japanese because of paranoia?

I could go on, and on, and on, but I think that the point is clear.

As such, I think it is really important to remembers that there is not a magic past to return to wherein American’s were more serious about liberty or when they, collectively, had more public virtue. Indeed, despite the serious threats to our democracy that we are facing, I would actually note that we, collectively, take human liberty as an abstract concept more seriously now than we ever have. That is the good news. The bad news is that we are also seeing an empowered anti-liberal right.

Indeed, and this should not be forgotten, part of the reason we are seeing threats to our democracy is because of progress in fulfilling the promises of such notions that “all men are created equal” and that government should be “of, by, and for the people.” People love these notions until it means having to give equality to people that they don’t like, or if it is perceived that working on equality means my slice of pie won’t be quite as big as it once was.

I would argue that when we look backward for inspiration, we need to think of the past as a place where we can see aspirational goals for liberty, rather than something we need to return to. Indeed, if there is an area in which a more progressive viewpoint is essential is in this arena. Reactionary calls for restoration do not fulfill the needs of liberty, nor does status quo conservatism. Improvement only coming via progressing.

Beyond this discussion of liberty, Kagan is also looking at American institutions through rose-colored glasses. Quite clearly, we find ourselves in this present moment in part because of poor design choices made by the founding generation. We would never have had to have endured the Trump presidency without the Electoral College.** SCOTUS would look and behave differently were it not for the EC and the unrepresentative nature of the Senate.

So while I would pause to recognize that, yes, the US Constitution was a truly remarkable document when it was written, and that the American experiment was radically democratic for the 1790s, it’s design is tired and incomplete if the goal is, as Kagan himself notes in his piece, liberal democracy. So, I agree with Kagan that that experiment was radical in its day, but that much of the world has passed us by in terms of liberal democracy.

A healthy republic would not be debating whether Trump and his followers seek the overthrow of the Founders’ system of liberal democracy. What more do people need to see than his well-documented attempt to prevent the peaceful transfer of power with the storming of the U.S. Capitol, the elaborate scheme to create false electoral slates in key states, the clear evidence that he bullied officials in some states to“find” more votes, and to persuade Vice President Mike Pence not to certify the legitimate results? What more do they need to know than that Trump continues to insist he won that election and celebrates as heroes and “patriots” the people who invaded the U.S. Capitol and smashed policemen’s faces with the stated aim of forcing Congress to negate the election results? As one 56-year-old Michigan woman present at the Capitol on Jan. 6, 2021, explained: “We weren’t there to steal things. We weren’t there to do damage. We were just there to overthrow the government.”

I will say that if there is a key example of lack of public virtue and betrayal of the Framer’s design, it was in the US Senate in January of 2021 and the malefactors where the Senate Republican caucus.

After Trump’s attempt to overthrow the government in 2020, Congress had a chance to use the method prescribed by the Founders in precisely the circumstances they envisioned. But Senate Republicans, out of a combination of ambition and cowardice, refused to play the vital role the Founders envisioned for them. The result is that the nightmare feared by the Founders is one election away from becoming reality.

I would also add Kevin McCarthy who said the right things behind closed doors and then went to Mar-a-Lago to kiss the ring because being Speak of the House was more important to him than anything else. That was selfishness (a vice) over public virtue. Moreover, it was cowardice, also a vice. He and Minority Leader McConnell showed that vice more than any other public figures at the time.

Cowardice is especially problematic in those who purport to lead.

In fairness to Kagan, he pulls no punches in discussing what he calls the anti-liberal right:

The fury on the anti-liberal right against what is today called “wokeness” is nothing new. Anti-liberal movements in America, whether in defense of the White race or Christianity, and more often both together, have always claimed to be suffering under the expanding hegemony of liberalism. They have always claimed that a liberal government and society were depriving them of their “freedom” to live a life according to Christian teachings and were favoring various minority groups, especially Black people, at their expense.

[…]

 Today, anti-liberal conservatives complain about school curriculums that acknowledge the racism that has shaped America’s history, but even five decades ago, before the invention of “critical race theory,” anti-liberal White people such as Rushdoony insisted that the “white man” was being “systematically indoctrinated into believing he is guilty of enslaving and abusing the Negro.” Nor is it new that many White people feel that the demands of minority groups for both rights and respect have “gone too far” and it is they, the White people of America, who are suffering the worst discrimination. In the 1960s, surveys taken by the New York Times showed that majorities of White people believed even then that the civil rights movement had “gone too far,” that Blacks were receiving “everything on a silver platter” and the government was practicing “reverse discrimination” against White people. Liberalism is always going too far for many Americans — and certainly for anti-liberals. Anti-liberals these days complain about wokeness, therefore, but it is the liberal system of government bequeathed by the Founders, and the accompanying egalitarian spirit, that they are really objecting to, just as anti-liberals have since the founding of the nation. Many of Trump’s core supporters insist they are patriots, but whether they realize it or not, their allegiance is not to the Founders’ America but to an ethnoreligious definition of the nation that the Founders explicitly rejected.

I think that this is generally correct, but I think that instead of casting the Founders as pure liberals the approach should be that we have long had a struggle between the liberals and the anti-liberals. The Dred Scott case was clearly the work of anti-liberals. Thomas Jefferson, whom Kagan quotes, was a liberal who also held slaves (showing that the liberal and anti-liberal impulses can be seen even in the same person). Andrew Jackson was hardly a liberal as it pertained to westward expansion. Even Lincoln, whose Kagan also lauds, was hardly an unvarnished liberal when it came to the actual equality of Blacks.

I applaud the notion that we should be extolling (and expanding!) our liberal heritage, but I still think we need to understand and acknowledge this is achieved by progressive, and not retrogressive thinking and understandings. I wholeheartedly agree that we should seek to aspire to the goal of treating all as if they were born equal. But I also know that pointing back to Jefferson as if he fully embodied the ideal of the words that he wrote is an error.

Still, Kagan rightly notes the religious and especially racial component to the anti-liberal right.

In terms of religion, for example:

The smartest and most honest of them know that if people truly want a “Christian America,” it can only come through “regime change,” by which they mean the “regime” created by the Founders. The Founders’ legacy is a “dead end,” writes Glenn Ellmers, a scholar at the Claremont Institute. The Constitution is a “Potemkin village.” According to Deneen and Harvard Law School’s Adrian Vermeule, the system established by the Founders to protect individual rights needs to be replaced with an alternative form of government. What they have in mind is a Christian commonwealth: a “culture that preserves and encourages order and continuity, and support for religious belief and institutions,” with legislation to “promote public morality, and forbid its intentional corruption,” a “forthright acknowledgment and renewal of the Christian roots of our civilization,” “public opportunities for prayers,” and a “revitalization of our public spaces to reflect a deeper belief that we are called to erect imitations of the beauty that awaits us in another Kingdom.”

[…]

The influential advocate of “conservative nationalism,” Yoram Hazony, wants Americans to abandon the Declaration in favor of a nationhood built on Protestantism and the Bible. America is a “revolutionary nation,” Sen. Josh Hawley (R-Mo.) insists, not because of the principles of the Declaration and not even because of the American Revolution itself, but “because we are the heirs of the revolution of the Bible” that began with “the founding of the nation of Israel.” There could hardly be a statement more at odds with the American Founders’ liberal, ecumenical vision.

Nothing scary about that, now is there?

And in terms of race:

But what about the average Republican voter, the “normal” Republicans who happily voted for George W. Bush, John McCain and Mitt Romney? Do they not see the difference between those Republicans and Trump — or do they not care? They, too, may feel their narrow interests are served by a Trump victory, and although they may not be Christian nationalists themselves, their views as White Americans make them sympathetic to the complaints of the anti-liberals. They, too, may feel they — or their children — are at a disadvantage in a system dedicated to diversity and wokeness. Their annoyance with a liberalism that has “gone too far” makes them susceptible to Trump’s appeal, and, more importantly, unconcerned about the threat he poses. Left to their own devices, they would not be interested in overthrowing the regime. But neither are they inclined to stand in the way of those who are.

[…]

The shame is that many White people today seem to have conveniently forgotten how much they and their forebears have depended on the Founders’ liberalism to gain their present status as fully equal members of American society and to enjoy the freedoms that they take for granted.

Most White Republicans, after all, do not have the “legacy European” lineage that Tucker Carlson praises. They do not have ancestors who stepped off the Mayflower or fought in the Revolution. The ancestors of the great majority of “White” Americans today were not considered “White” when they first set foot on American shores. Irish Americans may no longer remember that the Thomas Nast cartoons of the late 19th century depicted the Irish as apelike creatures. Many Italian Americans may not recall that a riot made up of “New Orleans’ finest” lynched and murdered 11 Sicilian immigrants and were never charged.

Many Catholics seem to have forgotten that they were once the most despised group in America, such that one of the Founders, John Jay, wanted them excluded from citizenship altogether. Most White Americans were at one time members of despised immigrant groups. They were the victims of the very anti-liberalism they are now voting back into power. They climbed to equality using liberalism as their ladder, and now that they have reached their destination they would pull away the ladder and abandon liberalism. Having obtained their equality using the laws and institutions of liberalism, their passion for liberalism has faded.

In terms of Kagan’s concluding paragraph, I think he makes the same error that made me react to his opening paragraphs:

If the American system of government fails this year, it will not be because the institutions established by the Founders failed. It will not be because of new technologies or flaws in the Constitution. No system of government can protect against a determined tyrant. Only the people can. This year we will learn if they will.

Without any doubt in my mind, if our system of government fails a major reason will, in fact, be the flaws in the Constitution. Again, no Electoral College, no Trump. Further, no Electoral College and no unrepresentative Senate, no SCOTUS that appears not to understand that a contrained executive is necessary for the rule of law. Further, no lifetime appointments to SCOTUS, likely a more balanced court.

And so on.

To be clear: the EC does not cause illiberalism. But it does allow, as do the other institutional features noted, a minority view to take power in ways that a truly liberal constitution should forestall. I stress here that providing a permissive environment for anti-democratic, illiberal, minoritarian views to take power does not cause those outcomes.

The absence of a dam does not cause a flood, but it certainly provides for the permissive opportunity under the right conditions.

In sum, yes, there is a liberal and anti-liberal battle going on in the US, and this is not new (as Kagan notes, “Trump is not a unique figure in American history. In each generation, anti-liberal forces have turned to the same breed of demagogue, the flouter of norms, the boorish trampler of liberal nostrums”). It is distressing to have to recognize that fellow citizens might only value liberal outcomes when they are the benefactors, but such is humanity.

*Apart from the institutional design mistakes I will address further down, let’s not forget things like the 3/5th Compromise, the Fugitive Slave Clause (Article IV, Section 2, Clause 3), or the fact that the federal government was banned from prohibiting the slave trade until 1808. There is a tendency of those who mythologize the Constitution to forget this stuff, or act like it has been expunged from the document. While things like the 3/5th Compromise were superseded by amendments, we never took the words out of the document.

**And, indeed, the entire direction of the Republican Party over the last roughly quarter-century would have been different if the party had to actually compete for majority support. A problem further exacerbated by the Senate and a too-small, uncompetitive House.