Remarks from NRI’s Regional Seminars
The following remarks, as prepared for delivery and lightly adapted, were given by the author in Houston on February 15, as part of National Review Institute’s Foundations of Freedom Seminars series on the Importance of America’s Constitutional Pillars.
I was a good friend of Bill Buckley’s. We did a book together back in 1988 called Keeping the Tablets: Modern American Conservative Thought, a greatest-hits anthology of the conservative movement as it stood at the close of the Reagan administration.
Bill had done a version of this book with Garry Wills in the late Sixties, which was called Did You Ever See A Dream Walking? But it needed to be updated to take account of the achievements, as well as the shortcomings, of the Reagan administration. He asked me to help out, and we titled our book after one of Bill’s favorite phrases — implying that the tablets of the law needed periodically to be reexamined, and conservatives, especially at the conclusion of their movement’s foremost sojourn in power of the 20th century, needed to rededicate themselves to those lapidary truths.
Though every period in political office is more or less brief, it is always long enough for politicians to forget why they were elected. Which is why citizens and officeholders alike needed to be reminded of the goals they meant to be pursuing, some of which may have been achieved, most of which, alas, were not, or could not have been, under the prevailing political circumstances. Still, we need to remember and reconsider those goals for the times to come. And so, Keeping the Tablets is appropriately out of print. It would be quite dated now, even if parts of it, I like to think, possess a certain timeless quality.
After Donald Trump’s administration ended as it did, I suppose we could have used another edition of the book to measure the successes and failures of the present-day conservative movement. By then, sadly, my dear friend had been called away and was, to borrow the title of one of his other books, Nearer My God. But it is my great privilege to be with you today, and to take stock of where our country stands in 2024 in relation to the tablets of our constitutional republic.
We’re in the middle of a very vigorous political season — quite an astonishing political season, in fact. Our two major-party candidates for the presidency are not quite as old as Bill Buckley would be if he were alive today (Bill would turn 100 in late 2025). But they’re approaching that mark. I don’t know if you’ve seen the comedian Jon Stewart’s comments on American politics after his return to television recently. He dubbed this election the “Antiques Roadshow.” Or alternatively, the “Electile Dysfunction.”
But the age of our presidential candidates is not the main worry. Most voters express greater concern over the depth and intensity of the political disagreements between the candidates and between the parties. Though not unprecedented, the fissures between the parties are unusually long-lasting and acrimonious.
At its best, American’s two-party system has tended to operate as the expression of an underlying one-party system, channeling and integrating competing interpretations of — and loyalty to — the same Constitution. That’s what Thomas Jefferson meant in his first inaugural address back in 1801, when he famously declared that “every difference of opinion is not a difference of principle.” He explained, “We have called by different names brethren of the same principle. We are all republicans — we are all federalists.” Those were the names of the two major parties that had contested the 1800 election. So even though they remained bitterly divided (John Adams left town before his successor was inaugurated), and the issues of the 1800 election would continue to radiate into the 19th century, though more faintly over time, the one-party system of loyalty to the U.S. Constitution had survived the first impassioned debate about how to interpret and apply it. Loyalty to the common Constitution surmounted that divisive moment and went on to surmount many others.
Of course, there was the close call of the Civil War, which we cannot forget, especially here in Texas; it was the refusal of almost half the country to accept the results of the 1860 election that precipitated that bloodbath, when ballots yielded to bullets, as Lincoln put it. It is that great breakdown of the constitutional order that haunts our imagination today, as the two major parties diverge more and more over how, or even whether, to interpret the same Constitution. The January 6th riot at the U.S. Capitol a few years ago is striking evidence of the growing alienation and hostility in American political life. Yet the least understood feature of that day’s events was that neither the rioters nor the congressmen inside the Capitol understood themselves to be engaged in a putsch; each side, if I may speak of them as such, thought it was saving democracy from a coup not only being contemplated but actually that day being committed by the other side. The inability to tell the difference between coups and lawful elections is one sign of our confused and dangerous times, what the late Angelo Codevilla christened our “cold civil war” — the only thing worse being of course a hot one.
No one has emphasized our divisions more forthrightly than President Biden himself. In, for example, his 2022 speech at Independence Hall — the birthplace of both the Declaration of Independence and the Constitution — lit blood-red for the occasion. You may recall that vigorous speech of his, in which he denounced former president Trump and the MAGA Republicans, as he calls them, for representing an “extremism that threatens the very foundations of our republic.” The MAGA Republicans are, Biden said, a threat to this country because the MAGA Republicans “do not respect the Constitution, do not believe in the rule of law, and do not recognize the will of the people.” A week before, he had told the Democratic National Committee that “the extreme MAGA philosophy is almost like semi-fascism.”
He had made the same point many times before in different speeches. For instance, when denouncing Republicans (not just the MAGA ones) for opposing the Democrats’ highly partisan voting-rights bills of the last few years, he borrowed Stacey Abrams’s line and mentioned the GOP’s “21st century Jim Crow assault.” He repeated this in a modified form again in Philadelphia at the National Constitution Center in July 2021 when he declared, “We’re facing the most significant test of our democracy since the Civil War.” “That’s not hyperbole,” he added, repeating “since the Civil War.”
Now, one doesn’t have to listen to many Biden speeches before realizing the key to their interpretation. Whenever he says something isn’t hyperbole, it is hyperbole. And that clears up a great many passages. But in this case, the president was trying to redefine his opponents’ political movement as un-American — as racist, antidemocratic, soft on slavery, you name it.
Conservative Republicans are simply beyond the pale of the Declaration of Independence and the Constitution, he insists repeatedly.
So what’s his alternative to this putative extremism? Judging from that same speech in Philadelphia in 2022, modestly titled “Remarks on the Continued Battle for the Soul of a Nation,” Biden conceives of the alternative as “our democracy,” a phrase he invoked no fewer than six times. By “our democracy” Biden means woke democracy, that is, the first to face up to the (supposed) pervasive injustice of previous American democracy, the first to acknowledge and try to overcome the country’s “systemic racism,” a term he used repeatedly during the 2020 campaign and since.
America’s democracy was built on racism all the way down, according to our president. Not merely on race prejudice. That’s a term from the 1940s and ’50s that he doesn’t employ. For him, it’s not a question of prejudice — of attitudes you could be educated out of or prejudgments that you could enlighten and refine. No, it’s a matter of doctrine. American racism is an “ism,” a system of belief or philosophy. It’s the system that pervaded old America, that is, the America stretching back long before Jim Crow to the Constitution and the Declaration of Independence.
The president’s and the current Left’s version of woke democracy is thus preparing to renew the modern, progressive criticism of the original Constitution, which began really with Woodrow Wilson more than a century ago.
Woodrow Wilson was the first president to criticize the Constitution, and he did so because he considered it an unjust form of government, and unjust because untimely. Rooted in 18th-century moral and intellectual principles such as natural rights, the social contract, and limited government, the Constitution was simply outdated or inadequate to 20th-century circumstances and problems, according to Wilson. Applied to modern problems, its time-bound formulas would produce not liberty and equality but fresh forms of servitude and oligarchy. As a young professor, Wilson proposed a series of constitutional amendments to modernize the original plan of government and turn it into a progressive parliamentary-style regime with centralized administrative powers, a “living constitution” that would be able to evolve with the times and with the changing demands of social justice. When he realized that such amendments could not pass, Wilson switched his recommendation to retaining the forms of the old Constitution but transforming them through a new afflatus of presidential leadership and administrative innovation.
Because the “living constitution” had to vary from age to age in order to stay in touch with the zeitgeist, today’s progressive agenda appears different from Wilson’s or from Franklin Roosevelt’s in the 1930s, even while displaying a basic continuity of spirit. “Our democracy,” in Biden’s terms, still expresses the progressive impatience with America’s backward-looking morals and political principles, now condemned as racist, and a similar progressive confidence that, nevertheless, forward-looking Democratic presidents, judges, and bureaucrats can redeem the system from within.
FDR’s New Deal had derided the original American social contract not as racist but as plutocratic. His cure for what ailed us, therefore, relied mainly on adding the welfare or entitlement state to the old constitutional forms. Roosevelt expressed the purpose of his new political-economic arrangements in what he called in 1944 the Second Bill of Rights. These were new socio-economic rights added informally to our living constitutional order — rights which gradually became central provisions of our politics, like the right to health care, to a job, to protection more generally against economic insecurity, and to a good education.
Of course, these programmatic rights, as political scientists came to call them, require a much bigger government. All of these rights require government programs with lots of spending, and lots of taxes to pay for the spending, not to mention lots of regulations to shape the government and ancillary civil-society programs.
It was accordingly a very different constitution that gradually emerged across the 20th century from the hands of American progressives. The liberalism of the 1960s that bequeathed us the current woke democracy brought with it in turn a veritable Third Bill of Rights, proclaiming the imperative justice of creating our own lifestyles, cultures, morality, and identity.
In typical Sixties fashion, these grand existential matters somehow all reduced to two pressing bodily considerations: race and sex. Though the new rights to racial and sexual identity were sold as individual rights, they implied, and as soon became clear, demanded group affirmation and reinforcement. Thus, when new freedom movements began along racial and sexual lines in the 1960s, they quickly turned into new kinds of conformity.
They needed a kind of social affirmation and legitimacy, after all. LGBTQ-style rights, for example, mean little if they are not respected and recognized by the former power structure, by the keepers of the old oppressive identities against which the possessors of the new rights had risen in rebellion. Hence the now familiar right to insist that other groups recognize one’s group identity; and that not only public authorities but also private groups like businesses, schools, and churches, should be required to honor your preferred pronouns and new gender or racial identity. Speech that resisted or challenged the new rights became condemned alongside other, more ancient forms of “hate speech.”
But, it’s not enough to stay silent — as Sir Thomas More might have taught us. As they say on campus these days, “silence is violence.“ Thus there is such a thing as hate silence, too. Merely to shun or reject racism is insufficient. We must all be actively, unceasingly anti-racist.
That’s a new word, “anti-racist.” It demands that good persons, good citizens, must never miss a chance to shame America as systemically flawed and to try to remedy that flaw by socializing the country into a cooperative commonwealth of absolute equals. Any persistent disparity between racial or social groups is taken as ipso facto proof of invidious discrimination. This is explained in a couple of books by leading anti-racist thinkers, notably Ibram X. Kendi (not his real name), who is more obsessed by racial distinctions than was the Old South.
Although the living constitution, including its woke phase, has functioned as a central idea of modern progressivism for more than a century, it has not won a complete victory. American politics remains divided between two views of justice and two conflicting constitutions or ways of life: between the founders’ Constitution and the progressives’ constitution. If President Biden is correct, however, then America and indeed (he claims) the whole world are approaching what he calls an “inflection point.” Certainly the choice between President Biden and President Trump seems an uncommonly consequential one.
Though Biden doesn’t quite put it this way, at the coming inflection point we may have to choose between the founders’ Constitution, favored by most of our present Supreme Court justices and by most American conservatives and by the National Review Institute, to name a few, and the so-called living constitution, favored by progressives of almost every stripe.
Yet it’s the nature of the latter constitution to be continually evolving, hence difficult to pin down regarding its principles and form of government. To be sure, there are some important disagreements among conservatives, too, which are a theme for another day. For the present, let me say some concluding words about a pregnant but largely unnoticed disagreement among the advocates of the living constitution. Should “our democracy” evolve toward the proliferation and protection of new kinds of minority rights? Or on the contrary, should “our democracy” move firmly and decisively to empower the (presumptive) progressive majority to rule directly, to give birth to and nurture a new society in keeping with history’s dictates or possibilities?
These are two competing versions of woke democracy. One is heavily minority-oriented, culminating in minority rights of new kinds. Its watchword is diversity. The other is eager to exercise majority rule as sweepingly as possible. Its watchword is inclusion. Equity, the third element in DEI, would seem to hold the balance between them.
Voting rights are a good example of the minoritarian approach. The federal Voting Rights Act (VRA) passed Congress and was signed into law in 1965. By 1969, the federal courts had begun to stretch the meaning of the VRA to keep up with the living constitution. It did not take long for judges and the “voting rights bar,” as they came to be called, to transition from defending the individual right to vote, that is the right to go into a voting booth and have your vote counted and recorded, to defending what they called the effective right to vote, that is, to cast a vote that was not only counted as a matter of arithmetic but also as a matter of politics.
To cast an effective vote, in other words, was to cast one for the winning candidate whose victory would produce a change in public policy favorable to the demands of the long-suffering minority group. Anything short of that for an “underrepresented” minority group was a losing game. It was the group’s representation that mattered, its ability to enact its will in law, not the right of the individual voter, whatever his race, to have his vote counted, whether for a winning or a losing candidate of his choice.
But then there is the majoritarian side of “our democracy.” A good example is a recent law-review article, followed by a New York Times piece, by two progressivist law professors, Ryan Doerfler and Samuel Moyne, one at Yale University Law School, the other at Harvard Law School.
They recommend effectively jettisoning the old Constitution in favor of what they call “reclaiming America from constitutionalism.” We don’t need a higher law that is more difficult to change than the rest of the legal order, they assert. Any such notion of a Constitution privileges the past over the present, yesterday’s priorities over today’s priorities. They argue that liberals (they mean, in particular, liberal law professors) have wasted generations bickering with the Supreme Court, threatening to try to pack it, to reduce the Court’s jurisdiction, to impose term limits on it, and many other things too, without realizing that the problem is not the Court.
The problem is the Constitution. If legislatures could just pass rules that protected modern-day majority values, effectively, you wouldn’t need a constitution. This radical argument shows us something about the state of the debate today. The debate is really not about how to interpret a common Constitution on whose meaning progressives and conservatives could largely agree. The debate concerns which constitution to interpret: the founders’ Constitution, which remains the basis of originalism and of most conservative thinking about American politics, or the moving target of the living constitution, which rejects almost all of the fixed moral postulates that inform the historic Constitution and that ought to inform constitutional law as a result.
The two professors have a practical proposal to rescue us from the Constitution. And their proposal is that — I’m not making this up — we ought to take the District of Columbia, which is, as you know, one of the most heavily Democratic areas in the country, which routinely gives Democrats 94 or 95 percent of its vote — and carve the District of Columbia into, say, a hundred sub-districts. And then each of those hundred sub-districts should apply for statehood.
The Democratic Party should then exert its political muscle to get those hundred sub-districts turned into states. And once these are turned into states and are represented by two senators each in the U.S. Senate, the agenda of the Democratic Party, the agenda of modern progressivism and of woke democracy, could be enacted into law, mirabile dictu. And thus the Constitution would become what it should be anyway, according to the professors: an afterthought.
No wonder the temperature of contemporary American politics is so high. One nation with two contradictory systems doesn’t work, as Hong Kong has discovered living in the same country alongside the mainland Chinese. They’re supposed to be one nation with two systems. But the Hong Kong system is fast disappearing under the overbearing power and influence of the Communist Chinese.
Two constitutions for the American republic will eventually present similar fateful dilemmas. As we go into this season of presidential and congressional elections, we need to keep in mind those ultimate stakes and to remember why keeping the tablets remains our urgent duty.