Strengthening Constitutional Self-Government

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The Conservative Challenge

On Principle, Summer 2009

August 2009

by Charles R. Kesler

The essay excerpted below appears in its entirety this month in the Claremont Review of Books, whom we thank for allowing us to reprint this portion. Professor Kesler presented an earlier version of the piece in an informal talk with the Ashbrook Board in May.

Competing Conservatisms

…After the Soviet Union’s collapse, which occurred on Bush the Elder’s watch but in fulfillment of Reagan’s policies, the definition of conservatism became newly problematic. For anti-Communism and the anxiety over national defense had always been a key third element in Reaganite conservatism and in his New Republican Party.… Without the urgent motivation of anti-Communism, conservatism seemed to lose much of its reason for being.

Many observers predicted a crack-up, with the union of social and economic conservatives dissolving in mutual antipathy. That didn’t happen, suggesting that the two constituencies had more in common than it seemed. What ensued in the 1990s was a series of attempts to redefine conservatism for the post-Cold War age. The two most interesting efforts were Newt Gingrich’s “Third Wave” and George W. Bush’s “compassionate conservatism.”

Gingrich’s was a striking form of progressivist conservatism; it was almost an inverted Marxism. Mixing wildly disparate sources ranging from Alexis de Tocqueville to techno-futurist Alvin Toffler, Gingrich argued that the Right was now on the right side of history. In speeches and best-selling books, he explained that politics is shaped decisively by technology and the prevailing means of production. In the Second Wave, the economics of the industrial revolution and mass production had dictated the one-size-fits-all, big-government policies of the New Deal. But with the advent of the personal computer and the information revolution, politics would be demassified, individuals empowered, and a new era of entrepreneurship would usher in smaller, more agile and efficient government. The Third Wave, he predicted, would ensure a Republican majority and conservative policies for a long time to come.

It didn’t work out that way, not because the economy didn’t do its part but because politics always has a mind of its own, and thus a freedom from even the most up-to-date determinisms. In 1994, the GOP, under Gingrich’s leadership, captured control of the House of Representatives for the first time in forty years. He took this as a confirmation of his thesis and set out to rein in the federal budget as though he had been elected Prime Minister rather than Speaker of the House. Gingrich was surprised at how Clinton outmaneuvered him in the government shutdown of 1995, and surprised again at the president’s re-election. All of a sudden the Republicans seemed to have missed the big swell and were left bobbing in place, far from shore. In fact, however, the GOP congressional majority continued to exert a salutary check on the administration. But Gingrich had overplayed his hand (politics is more like poker than it is surfing) by confusing the public’s disdain for Big Government with a libertarian contempt for government as such. Recall that one effect of Reagan’s successful presidency was to increase the public’s trust in the federal government.

David Frum observed that Bush’s compassionate conservatism combined “the Left’s favorite adjective with the Right’s favorite noun.” Too bad Bush didn’t remember the writer’s adage that the adjective is the enemy of the noun. The elementary point conveyed by the phrase was that it was no contradiction for conservatives to be compassionate. True enough, and useful to say, but hardly a revelation. More ambitiously, it sought to form a new combination of social and economic conservatives to replace or renew Reagan’s New Republican Party.

In a time of unprecedented prosperity (1999–2000), Bush wanted to invoke a sense of national purpose loftier than material well-being, and so he tried to connect the two kinds of conservatives by asking what was prosperity’s point. “The purpose of prosperity,” he said many times, “is to make sure the American dream touches every willing heart. The purpose of prosperity is to leave no one out…to leave no one behind.” What he meant was that the American dream consisted both of making a good living and making a good life, and therefore that prosperity should be a means to the ends of good character. Although compassion was not the only quality that he recommended to his fellow “citizens of character,” it was the leading element in his ideal. Compassion is a noble calling, he said—not an easy virtue.

On the campaign trail he laid out a domestic policy agenda that combined economic conservatism with what he regarded as compassionate social policy. On the one hand, he promised tax cuts and entitlement reform. On the other, he offered three broad culture-improving proposals: to usher in the “responsibility era,” i.e., to challenge the self-indulgent culture of the Sixties, a task he admitted churches would be more effective at than government; to “rally the armies of compassion,” that is, to encourage charitable giving and channel federal support to faith-based, private-sector welfare initiatives; and to reform education, through what would become the No Child Left Behind Act.

Even as he aspired to make his version of conservatism a middle way between libertarianism and cultural traditionalism, so he hoped that compassionate conservatism would offer a Third Way—to borrow Bill Clinton’s favorite slogan—that would take the country beyond the stalemate or deadlock (symbolized by the government shutdown) to which the Left and Right had led it. Bush sought a way out of the “old, tired argument” between “those who want more government, regardless of the cost,” and “those who want less government, regardless of the need. We should leave those arguments to the last century and chart a different course,” he told a joint session of Congress in 2001.

That new course would require government to “address some of society’s deepest problems one person at a time, by encouraging and empowering the good hearts and good works of the American people.” He would use government to strengthen civil society, and civil society to strengthen American character. A little more government now would lead to a caring, self-reliant people who could make do with less government later on.…

The Conservative Collapse

Unfortunately, the supply of government generates its own demand. This Say’s Law of politics was amply demonstrated in the Bush Administration. For the effectual truth of compassionate conservatism soon proved to be “big-government conservatism.” Bush pushed successfully for Medicare Part D, the first new federal entitlement program since the Great Society. This prescription drug benefit has cost less than projected, but still costs billions that the federal treasury doesn’t have—it was passed without even a hint of additional revenue to fund it—and delivers a benefit to 100% of seniors that only about 2% of them actually need.

But the worst of it for conservatives was that compassionate conservatism eviscerated the GOP’s reform ambitions. By abandoning even the rhetorical case for limited government, Bush’s philosophy left the administration, and especially Congress, free to plunge lustily into the Washington spending whirl. When House majority leader Tom DeLay—the heartless right-winger Tom Delay!—protested that Congress could not cut another cent from the federal budget because it was already cut to the bone…you knew things were bad.

At bottom, the whole notion that compassion was the virtue conservatives lacked or needed to cultivate to be respectable was highly dubious. The best that could be said was that the slogan may have conferred some marginal electoral advantages in 2000. At a deeper level, however, the prominence of compassion was in tension with Bush’s avowal of the responsibility era and his pledge to bring dignity back to the presidency. Compassion is not a virtue, after all. As the name suggests, it’s a form of passion, of “feeling with” others—feeling their pain, usually; a specialty of the previous administration. Like every passion, it is neither good nor bad in itself; everything depends on what its object is and its fitness to that object. In practice, our compassion often goes out to whoever is moaning the loudest. That’s why the classical political virtue is justice, not compassion, for compassion is often indiscriminate and misdirected.

At any rate, compassionate conservatism’s indiscipline seemed to wear down some of the tough Texas virtues Bush might have been expected to bring to the presidency. As he said in 2003, “when somebody hurts, government has got to move.” That’s compassion speaking, not reason and justice, and certainly not the Constitution. In the end, the spirit of misplaced compassion did serious damage to his administration.…

In his 2001 Inaugural Address, Bush drew attention to what he termed “a new commitment to live out our nation’s promise through civility, courage, compassion, and character.” To these four c’s he didn’t trouble to add a fifth, the Constitution, despite the fact that he owed his election to one of its provisions, the Electoral College. Like most Republican leaders since the New Deal, he assumed the Constitution was basically irrelevant to his task of shaping public opinion and policy, with the significant exception of making judicial appointments, when the usual condemnations of judicial activism would be trotted out. In effect, Bush accepted the Left’s view of the Constitution as a living, Darwinian document that ought not constrain very much the Congress and executive branch from experimenting with and expanding the federal government—making it more compassionate, say. But the Court should not be allowed the same leeway. On this, he parted company with post-New Deal liberals.

In other words, like most modern Republicans, he saw nothing except the most vestigial connection between the Constitution and the proper size and functions of government. Those sort of arguments, which in the ancient of days had led conservatives to attack the New Deal, not to mention Medicare and Medicaid, as unconstitutional, had no place in compassionate conservatism, or in most other forms of the prevailing conservatism. Too much water under the bridge, it was thought. And besides, as Bill Clinton had been forced to acknowledge in 1996, the era of Big Government was over. Although this didn’t mean that Big Government itself was obsolete or doomed—on the contrary, it was here to stay—Clinton’s concession did imply that the era of big growth in the federal establishment was now behind us. Which implied that the Right could at last let down its guard.…

Obama’s Moment

That was before the market meltdown, the Republican selloff in 2006 and 2008, and the rise of Obama. Who’s shorting liberalism now? Yet to the generation of American conservatives who opposed the New Deal and the Great Society, there would be nothing unfamiliar about this resurgent liberalism. What shocks today’s Republicans is the Lazarus act it seems to have pulled. They thought it was dead, or dying, or at least tamed. They’ve forgotten what liberalism was like before Reagan.

As with the Great Depression or urban riots in the ’60s, the financial crisis of 2008–09 helped to create the moment that the Obama forces are now exploiting. They were aided, to be sure, by the last act of the Bush Administration. When the Troubled Asset Relief Program (TARP) bill was first submitted, it was three pages long—a blank check to the Treasury Secretary to save our economy. In its final form it exceeded two hundred pages—still a blank check to “take such actions as the Secretary deems necessary” to buy troubled assets, “the purchase of which the Secretary determines promotes financial market stability.” In effect, President Bush and the Congress agreed to establish what the ancient Romans would have called a “dictator” of finance, an emergency office empowered to solve a crisis, in this case, to unfreeze credit markets and stop the financial freefall.

The Romans wisely limited the office to a term of no more than six months. In our case, the TARP authority goes on indefinitely, and the spirit of clever lawlessness, already present to some degree in the liberals’ constitutional views, radiates ever further into the administration. Neither Hank Paulsen nor Timothy Geithner (so far) ever got around to purchasing those troubled, mortgage-backed assets, but somehow the government now owns 60% of General Motors and a large chunk of Chrysler, not to mention preferred shares in most of the nation’s largest banks, and has poured, so far, about $100 billion into Fannie Mae and Freddie Mac, and another $100 billion or so into AIG, and is eager to regulate the compensation packages of businessmen in and out of these ailing companies. To make the auto company deals happen, the Obama Administration had to subvert the existing laws of bankruptcy, but then once you’ve accepted the theory of the living Constitution it’s a small matter to swallow a living bankruptcy code, too.

Not content with its acquisitions, the administration now eyes health care, the energy business, and other vast segments of the economy to tax, regulate, and control. Health care is the signal case, revealing most clearly the nature and illusions of unlimited government in the progressive state.

Here, in outline, is the liberal M.O.: Take a very good thing, like quality health care. Turn it into a right, which only centralized government can claim to provide equally and affordably and—the biggest whopper—excellently to all. Refer as little as possible to the plain logic that such a right implies a corresponding duty; that the duty to pay for this new right’s provision must fall on someone; and that the rich, always defined as someone with greater income than you, cannot possibly pay for it all by themselves. Ignore even more fervently that this right, held as a social entitlement, implies a duty to accept only as much and as good health care as society (i.e., government) allows or, ideally, as can be given equally to everyone. Having advertised such care as effectively free to every user, because the duty to pay is separated as much as possible from the right to enjoy the benefit, profess amazement that usage soars, thereby multiplying costs and degrading the quality of care. Blame Republicans for insufficient funding and thus for the painful necessity to increase taxes and cut benefits in order to protect the right to universal health care, which is now a program. Run against those hard-hearted Republicans, and win.

That, at least, is the classic script of liberal governance. With a magician’s indirection, it mesmerizes the public with new rights that seem almost free and unalienable, and then poof, it explains that these are positive rights pure and simple, which have to be paid for and are subject to diminution or even abolition by ordinary statute law. When FDR spoke of the second Bill of Rights, he made it sound as though they would be added to the Constitution, as the old Bill of Rights was. In fact, the new socio-economic rights were added only to the small-c constitution, i.e., the mutable structures of contemporary governance, and so are subject to change at any time. Thus an evolving constitution, and supposedly permanent new rights, may come into fatal collision. To speak candidly, the essence and appeal of the modern liberal State depend on the artful misdirection of public opinion—on half-truths that are hard to distinguish from lies, nobly told, doubtless, in the liberals’ own view.

To overcome the contradictions of Big Government, liberals cheerfully offer Bigger Government. Consider the present case. Medicare and Medicaid are going broke. Doctor Obama prescribes a brand new, expensive health care program, which the Democrats cannot figure out how to fund, to cure the ills of the existing system. A third deficit-laden program to save two already verging on bankruptcy? The reality is that massive middle-class tax increases lie just over the horizon, along with draconian cuts in benefits, which will come partly disguised by long waiting lists, rationing of care, and shrinking investment in new drugs and technologies. Obama is betting that the socialist ethic of solidarity, of shared pain, can be made to prevail over democratic outrage at broken promises, shoddy services, and diminished liberty.

The Conservative Challenge

Will conservatives let him get away with it? So far their best arguments have highlighted the enormous cost of his proposals, added to the enormous and still growing costs of the stimulus bill and financial bailouts; the magnitude of the tax increases needed to fund Obama’s spending; and the predictable and abysmal drop in the quality, variety, and innovativeness of American health care if the Democrats’ plan passes. These are excellent arguments, which may be powerful enough to sink his health care plan and impair the rest of his domestic agenda. Then again they may not, and in either case they aren’t sufficient to the larger task of reinvigorating American conservatism as a positive intellectual and political force, as the animating spirit of a New Republican Party.

To rise to this grander challenge we must rise above the conservatism of the past two decades, and in certain respects above that of the past half century. One of the most interesting aspects of Obama is his determination to contest conservatism’s grip on the American political tradition; he wants especially to recruit Abraham Lincoln and the American Founders to his side. He intends to claim the title deeds of American patriotism as Franklin Roosevelt did in the 1930s, preparing the way for a new New Deal coalition to rule our politics for the next generation or two. Conservatives can’t allow him to succeed at this cynical revisionism, which means we have to make the case for our own understanding of, and fidelity to, American principles.

Here there is vast room for improvement, and dire need for relearning. A return to the principles of the Declaration of Independence and Constitution requires something like a revolution not only against modern liberalism but also within modern conservatism. Affronted by Obama’s ambitions, a few conservatives here and there already have begun to clamor for their state’s secession from the Union, a remedy that is about as un-Lincolnian and anti-Republican (not to mention boneheaded) as any imaginable. In the same vein, restive Republicans have started to invoke the Tenth Amendment’s guarantee of reserved rights to the states. Whatever its merits, the Tenth Amendment’s misuse in the defense of segregation in the 1950s and ’60s has ignoble connotations that are, shall we say, particularly distracting when the amendment is to be applied against the first black president.

These misfires recall the disagreements and dead ends within the conservative movement prior to the Reagan Revolution. A tendency to defend the antebellum South and its radical view of states’ rights—a view that made states’ rights more fundamental than human or natural rights in the American constitutional order—cropped up on both the traditionalist and libertarian sides of the movement, and still does. Others imagined conservatism to be a defense of agrarianism, or an attempt to resurrect the medieval respublica Christiana, or the last episode of the French Revolution, in which its opponents would finally expunge all abstract doctrines of equality and revolution from our political life.

American conservatism stands or falls, however, by its allegiance to the American Revolution and Founding, even as modern liberalism really began, in the Progressive era, with a condemnation and rejection of America’s revolutionary and constitutional principles.

Reagan himself seemed well aware of the innermost character of American conservatism. Despite his talk of fusing economic and social conservatives together into a new synthesis, in his most important speeches he regarded the two as already united by a patriotic attachment to founding principles. He invoked these principles brilliantly in stirring indictments of the Left’s worldview. In his 1964 speech “A Time for Choosing” he said presciently:

[I]t doesn’t require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life or death over that business or property? …Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, inalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment.

…………

Beyond Reagan

It is necessary to reground our conservatism in those revolutionary principles, but it will not be sufficient. Although conservatives cannot remedy America’s problems without them, our principles need to be explained in a contemporary idiom and applied prudently to our present circumstances. That requires, for want of a more comprehensive word, statesmanship.

For the problems that face us now are the ones that Reagan helped to diagnose but did not come close to solving, particularly the deeply intractable problem of what to do about the liberal State. It has grown up among us for so long and has entwined itself so tightly around the organs of American government that it seems impossible to remove it completely without risking fatal harm to the patient. And in any case the patient’s wishes must be conscientiously consulted on the matter, and he seems rather content with his present condition. Yet the spirit of unlimited government and the spirit of limited government cannot permanently endure in the same nation, either.

Bear in mind, of course, that the worst thing about Big Government is the reasons given for it, which always point to more and more programs, to government unlimited in its power and designs. Some—not all—of the agencies and departments established under its rubric may be tolerable, and a few even good. That’s one reason the conservative task is so challenging. It requires not only discriminating in theory between the proper and improper functions of government, but also examining in practice the good and bad that government programs do, the second-best purposes they fulfill, the political costs and benefits of altering or abolishing them. All of these need to be elements of a long-term conservative strategy—”a program of action based on political principle”—to reform fundamentally the federal government and its programs.

Though unwinding the damage that has already been done to liberty and constitutional government will take time, we have to insist right now that no further damage, particularly the egregious sort promised by the Obama Administration, be permitted. The liberal State has always operated at the borders of constitutionality—often crossing them. But the president seeks to conquer and annex whole new provinces of unconstitutionality: to trample underfoot the rights of property, e.g., in the rush to hand control of Chrysler to his union allies; to compass the health care, housing, energy, automobile, and banking industries under close, indefinite, and highly personal political control; to so extend the tentacles of government as to grip more and more Americans in an unhealthy, unsafe, and unrelenting dependence on the federal establishment and its partisan masters.

If we were ever prone to think that after the Reagan Revolution conservatives faced only second- or third-order issues, we should by now be disabused of that comforting illusion. All of conservatism’s past victories and defeats have brought us to the threshold of another epic struggle, a battle for America’s soul, a battle that will determine whether free government will survive.

Charles R. Kesler is Professor of Government at Claremont McKenna College and Editor of The Claremont Review of Books.

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