Coming Home

Reclaiming America's Conservative Soul

Ted V. McAllister, Bruce P. Frohnen

• Publisher: Encounter Books
• Year: 2019
• ISBN:
  9781641770576
• Topic: Law
• Subtopic: Common Law
• Index: Law

Americans have been forced from their homes. Their jobs have been outsourced, their neighborhoods torn down to make room for freeways, their churches shuttered or taken over by social justice warriors, and their very families eviscerated by government programs that take over their functions and a hostile elite that deems them oppressive. These elements of a rooted life historically have been defended by conservatives—people dedicated to maintaining cultural continuity in the face of changing circumstances. Unfortunately, official "Conservatism" has become fixated upon abstract claims about freedom and the profits of "creative destruction." Conservatism has never been the only voice in America, but it is the most distinctively American voice, emerging from the customs, norms, and dispositions of its people and is grounded in the conviction that the capacity for self-governance provides a distinctly human dignity. Emphasizing the ongoing strength and importance of the conservative tradition, the authors describe our Constitution's emphasis on maintaining order, balance, and protection of the primary institutions of local life. Also important, here, is an understanding of changes in American demographics, economics, and politics. These changes complicated attempts to address the fundamentally anti-traditional nature of slavery and Jim Crow, the destructive effects of globalism, and the increasing desire to look on the federal government as the guarantor of security and happiness. To reclaim our home as a people we must rebuild the natural associations and primary institutions within which we live. This means protecting the fundamental relationships that make up our way of life. From philosophy to home construction, from theology to commerce, to the essentials of household management, our ongoing practices are the source of our knowledge of truth, of one another, and of how we may live well together.

PART I

OUR HISTORY AND OUR NATURE

CHAPTER ONE

Who We Are

The American Tradition

America is a land – a geographical place of beauty and wonder. America is also a nation – a political system whose norms apply in this land. Most fundamentally, America is a people – a stunning variety of persons, families, and communities interacting at churches, in the marketplace, and in all the local associations of civic life. Americans differ from one another in many ways but join in valuing the dignity associated with a self-governing people and the pursuit of happiness in the context of a well-ordered social and communal life.

American conservatism by definition is dedicated to preserving and enriching America and the traditions that sustain it. Conservatism has never been the only voice in America, but it is the most distinctively American voice, emerging from the practices, customs, norms, and dispositions of a people that has formed and developed through the interaction of a specific history with equally specific circumstances. Our task in this era of ideology – of simplistic slogans and attempts to “fundamentally transform” our way of life – is to reclaim our culture. Reclamation begins with social and cultural retention: preserving for our descendants our most important civilizational accomplishments. Retention requires a deep affection for who we are together and what we have inherited. But the essential capacity to retain, and to pass down what has been retained, is hardest to cultivate and practice during times of rapid and disorienting change, such as we are in now. To reclaim our most important principles, therefore, we must innovate, bringing the principles earned from past experiences into line with new conditions.

American conservatism is rooted in English tradition; its earliest principles emerged from the consolidation of accomplishments within English political and legal cultures. The defining principles of this tradition are the product of empirical and historical knowledge; its temperament moderate, skeptical, hopeful but worldly; its method scientific and cognizant of the limits of our knowledge; its passion ordered liberty. The conservative tradition is never completely new because it concentrates on retaining the best of what it has inherited. As a philosophical tradition, then, American conservatism is best characterized as the process of identifying, articulating, and refining principles both gleaned by natural reason and revealed by Jewish and Christian scriptures, but perfected and specified as norms growing out of English, and then American, experiences.

American conservatism is thus uniquely American, though its fountainhead is English. Its defining principles are the result of retaining and refining America’s English inheritance for Americans, suited to American realities, and fitted to the pluralism of the American people. To understand American conservatism we must first rediscover these historical threads. How did Americans shape their inheritance into the most successful self-governing culture in human history?

More than perhaps any other people, the English from very early times saw law as an expression and enforcement of preexisting customs. Both courts and juries saw justice, in court at least, as vindication of the reasonable expectations of the parties; the victor should be the person who has acted in a manner most closely conforming to expected norms. Recognizing people’s right to not be surprised by new rules, decrees, or ways of doing things, the law demanded that changes in customs be as gradual and naturally occurring as possible. The idea of “judge-made law” was foreign to the common law because the court’s job was to find and enforce already existing understandings of proper conduct and of essential terms like “negligence,” “property,” and “due process” rather than to create them. This meant that law itself came to be seen as an expression of the people’s will, expressed in action over time.

By the sixteenth century, the common law had developed into a product of reflection and refinement, most famously through the work of Edward Coke. It reflected the norms of the people as they emerged from actual practice, rooted in, rather than mechanically derived from, understandings of higher law, customs, and the requirements of the public good. Over time the common law would develop a theory of “precedent,” whereby the decisions of previous courts would guide those of later ones. Previous examples would both limit and empower judges as they addressed the emerging needs of new circumstances, the general requirements of due process, and the particular needs of plural communities.

If the common law emerged through slow accretions of precedent and by way of reflection and intellectual refinement, the articulation of conservative principles in a more general way emerged most powerfully in revolutions, which served as historical moments of clarification. The word “revolution,” derived from the Latin revolvere, meaning to turn or roll back, entered European discourse as an astronomic term concerning the natural course of planets orbiting the sun; when it was applied to political life in reference to England’s Glorious Revolution of 1688, it conveyed the idea of reclaiming. Understood this way, English tradition was marked by a series of restatements of traditional rights, along with institutional reforms intended to better preserve these rights. Whether in Magna Carta from 1215, the Petition of Right from 1628, or the Declaration of Right from 1689, English constitutional declarations forged a tradition played out in the American Declaration of Independence. The bulk of all these documents is taken up with a list of charges against an overreaching king whose innovations threatened inherited rights and liberties. The rebellious English barons, Parliament, and the American Continental Congress all refined and affirmed what was already theirs – they “rolled back” to preserve but also to solidify their inheritance. Changes in the powers of the king and even secession from the British Empire were seen as necessary for the conservation of ordered liberty.

Retention and innovation are necessarily linked for conservatives. Knowledge passed down is necessary to develop new knowledge, making innovation impossible without retention. But the opposite also is true. Because change is a human constant, though the speed of change varies dramatically, a society must be able to adjust, adapt, and find necessary innovations to preserve what is cherished, lest custom and tradition die. Indeed, when the normal course of life is threatened or collapses the effort at reclamation produces renewal; it yields discoveries of neglected or misunderstood parts of the living stream of experience that have become luminous in context and warrant the effort of articulating, refining, and defending them.

Anglo-American conservatism is deeply empirical and, when applied to politics, deeply historical because all real evidence on this subject is found in the historical record. The science of politics requires knowing a great deal about past policies, practices, and ideas and the experiences they generated. As shown in the constitutional debates between American Federalists and Anti-Federalists, history is a great storehouse, providing examples of what works and does not work under differing circumstances.

But conservatism’s historical empiricism has a more important function. A deep knowledge of one’s history provides a meaningful story about the world one occupies. This story is rich with examples and eccentricities and reveals that one lives in a social order suffused with peculiarities that make it unique in many ways and that show the contingency of every act and reaction. The complexity of this story makes one aware that things could have been different, that choices made based on the best knowledge of the time have unanticipated consequences, often taking many generations to play out. History helps one love the imperfect and odd society to which one belongs without demanding that it be something that it is not. Few principles are more important to American conservatism than the need to love the particular and the flawed over the abstract and apparently perfect.

This historical understanding provides a deep knowledge of one’s nation and how it got to be what it is. Neither the jury trial nor property rights, for example, developed along any logical or rational line; they grew over the circuitous course of historical development, as have a myriad of beloved principles associated with one’s own story, one’s own land – even, or perhaps especially, if one has adopted this land as one’s own and one is woven into the story. American rights, liberties, and practices come as a primarily cultural inheritance.

The story of America’s hard-won and always precarious rights and liberties is complex, and its sheer complexity makes it all the more dear. The conservative cannot take lightly what is such a rare and beautiful flower. He comes to love his rights and liberties, as well as the morally complex story that gave them to him. The story he knows is the source of these cherished accomplishments, so he no more expects other peoples to have the same accomplishments than he expects other climates to produce the same crops. Finally, the history he knows so well provides ample evidence that the most beloved parts of his inheritance demand preservation, protection, and diligence.

Perhaps America’s greatest inheritance is its constitutional tradition. The United States Constitution is imbued with the spirit of conservatism: reclamation and innovation. The Constitution and the Bill of Rights create specific protections for traditional English liberties as well as the innovative but experience-based American principle of freedom of religion. The framers understood the Constitution to be consistent with the common law – with the principles and rights articulated and developed within the system of customary law in England and America. The Constitution’s structural novelties were designed to serve inherited principles of governance. Responding to rational fear that a unified government would abuse its power, the framers had to find a way to represent “the people” in all their complexity.

The Constitution arose, not from the desire to forge a “new nation,” but from a determination to protect Americans’ way of life by ceding limited and specified powers to a more robust “federal” government. The Constitution’s complex governmental apparatus, with its separated powers and checks and balances intended to protect the people’s rights and liberties, had only a limited charge, and only limited powers for carrying out that charge. The lion’s share of governmental action would take place at the local level, within a system using the interests of states and the new national government to check one another. Within this new government, the legislative branch assumed the greatest powers and responsibilities, though limited to achieving specific ends concerned with national defense and the maintenance of peace and freedom of movement and commerce among the states. The legislative branch also provided internal checks between the immediate will of the majority as expressed in the House of Representatives and the interests of the states as expressed by their representatives in the Senate. The president was chosen indirectly by the Electoral College in a process meant to elicit the refined judgment of the people.

The US Constitution was not designed to express the general will of the people understood as a majority, nor was it crafted to make the federal government responsible for ruling for the common good as defined by politicians. Rather, it produced a government that mediates among various groups (states, economic interests, regional interests, and so on), promoting stability and prudent conduct by encouraging competing interests to check one another. Self-interest did not suggest the absence of a common good. Rather, the best interest of the nation is served by ensuring that governments provide a structure designed for a free people to pursue their lives in communities of purpose and interest without presuming the right to change other communities to fit their own ideas.

In all of these ways, the Constitution was an innovative system of government in support of inherited principles, rights, and liberties. It was, in short, conservative. The product of the most famous act of deliberation in the modern world, the document was wrought out of compromises that engaged principle and interest, that called on people to seek the good while recognizing limits, to be daring in preservation and prudent in innovation. No such creation could be without flaws – but then no frame of government issuing from dreams of solving all problems could possibly succeed in anything save tyranny. Prudence governed innovation, while a worldly understanding of self-interest produced innovations most conducive to the preservation of our most cherished liberties.

American conservatism is linked intimately to the Constitution because that Constitution is linked intimately to America – as a place, a government, a people. But not even the Constitution can sum up, let alone substitute for, the story that has made our way of life. The principles and inherited rights and liberties that developed from the origins of our common law have been under assault for many decades. The goal of these assaults is not merely a change in political structure; it is the elimination of America as a social, political, and cultural whole. To protect and reclaim our home requires first that we reclaim our understanding of how our rights and liberties are being lost and especially how conservatism has lost its connection to them.

CHAPTER TWO

American Conservatism

Conservatism in America emerged during the period around the Revolution and the Constitution’s framing. This was a time of unusual intellectual flourishing in which important distinctions emerged out of a shared intellectual culture. These distinctions would eventually take shape as competing intellectual traditions, each rooted in the same Anglo-American intellectual culture and each committed, in different ways, to ordered liberty.

In late-eighteenth-century America, when the peoples of British North America were most conspicuous for their diversity, a shared intellectual culture facilitated philosophical, political, and moral conversation in which almost all participants drew from the same sources. Americans lived the motto they would later adopt – e pluribus unum, or “out of many, one.” Although the colonists hailed from different sections of Britain and several European countries during an era when travel times and local habits made commerce and interaction unusual if not rare, came from different classes within the Old World’s strict class hierarchies, and belonged to rival and sometimes hostile religious traditions, nonetheless they shared a common patrimony. The nine colonial colleges, for instance, displayed striking similarities in their curricula despite their denominational differences. All of them connected the provincial American student to the history, philosophy, and literature of Western civilization. Those who emerged from these institutions in the late eighteenth century knew a great deal about ancient history, particularly relating to political experiments, tyranny, and the fate of liberty. They were deeply immersed in Roman and other ancient thinkers. They were well versed in the intellectual flowering of the English and Scottish Enlightenment and thus knew well the great scientific leaps of recent centuries, including the developing idea that the universe displays physical “laws” only recently discovered by human inquiry. The members of the educated, ruling class all read and debated thinkers like John Locke, Montesquieu, and William Blackstone, and more contemporary thinkers like David Hume, Adam Smith, Thomas Reid, Adam Ferguson, and a host of Continental thinkers.

Americans also shared an identifiably Protestant view of the world. Whether orthodox Christians or Unitarians, American leaders saw individual choice as central to our moral agency. At the same time, they had internalized the idea and practice of covenanting relationships central to social life. People bound themselves before God in marriage, in business, in religious community, and in the founding of towns, states, and societies. Covenanting produced in Americans the ability to organize groups for purposes chosen freely and capable of requiring strong commitment from their members to the purposes of these groups. The requirements of life on the frontier undergirded and helped produce a specifically Protestant devotion to community, and to toleration and religious and intellectual freedom; with this Americans stressed the moral virtue of voluntary actions in doing good for one’s neighbors. Ironically, devout and sectarian Protestants drew from their distinctive beliefs and experiences to produce towns that discerning observers like Alexis de Tocqueville would recognize as closely akin to medieval Catholic villages, with their strong communal identities and diversity of enlivening associations.

Finally, Americans worked within a version of Christian teachings recognizing each person’s moral freedom and propensity toward destructive self-love. Great vigilance was required, then, to prevent abuse of power. More generally, a thick skein of institutions, habits, and communal supports was needed to induce people to live and act in their genuine self-interest and to check selfish tendencies. American intellectual leaders recognized that their inheritance of expansive individual and local liberties was fragile and dependent for its protection on religion, diverse institutions, thick communal obligations, and other social conditions, and that radical change threatened all of this.

Americans’ common intellectual inheritance did not create uniformity of thought, but it enabled a deep and meaningful conversation and perhaps the greatest public act of deliberation in history, highlighted by, but not limited to, the debate over the US Constitution. Profound differences of opinion and theme emerged, but in a way that allowed understanding and engagement. Deep commonality allowed for useful difference, for a meaningful republic or commonwealth requires members who share enough to allow comprehension of, and even some admiration for, opinions they do not hold.

The richness of this shared intellectual culture, and the fluid ways its resources might be reimagined in new contexts, made the American founding especially fertile, helping it spawn both the conservative and liberal intellectual-political traditions. Conservatism and liberalism in America shared common roots in English commercial, legal, and religious practice. Conservatism emphasized the importance of historical ties and customary relations. Liberalism emphasized formal, often individual consent. Both recognized the necessity of social trust and ordered liberty. Neither was a narrow ideology in the contemporary partisan sense.

These traditions presented differing perspectives on a common patrimony. Consider, as a simple and obvious example, the influence of Locke. Locke’s Second Treatise of Government makes an abstract, rationalist argument for the same rights that the English had long defended on empirical and historical grounds. The rights of life, liberty, and property are perfectly consistent with common law understandings and covenantal communities. However, Locke’s method of apprehending and ...