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What Is Constitutional Conservatism?
From the Nov. 28, 2011, issue of NR


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Yuval Levin
That such a system is far from populist should be obvious. In Federalist 63, James Madison says plainly that the constitutional architecture involves “the total exclusion of the people in their collective capacity” from directly governing. The democratic elements of the Constitution are intended to be checks on the power of government, not expressions of trust in the wisdom of the public as a whole. And even as checks, these elements are imperfect. As Madison argues in Federalist 51, “A dependence on the people is no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions.”

But those precautions do not amount to the rule of experts. The framers were disdainful of the potential of technocratic know-it-alls whose abstract expertise was often of value only in what Hamilton calls, in Federalist 28, “the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.” And even men with expertise in administration should not be given too much power. In Federalist 68, Hamilton argues that, while good administration is very important, the idea that the best-administered regime is the best regime is a “political heresy.” There is much more to government than administration. 
 
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Thus expert omniscience could not be trusted to check the excesses of popular passion, and public omniscience could not be trusted to check the excesses of expert arrogance. In the view of the framers, there is no omniscience; there is only imperfect humanity. We therefore need checks on all of our various excesses, and a system that forces us to think through important decisions as best we can. This may well be the essential insight of our constitutional system: Since there is no perfection in human affairs, any system of government has to account for the permanent imperfections of the people who are both governing and governed, and this is best achieved through constitutional forms that compel self-restraint and enable self-correction. 
 
This emphasis on moderating forms – that is, the focus on arrangements that impose structure and restraint on political life — is crucial, and it has always been controversial. Indeed, it is what troubled the progressives most of all about our system, and what troubled many other technocrats and populists before them. But as Alexis de Tocqueville noted a century before the New Deal, “this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak.” And he added, with his usual prescience, “Forms become more necessary in proportion as the government becomes more active and more powerful.” In other words, we need them now more than ever. 
 
The framers’ formalism, with its humility about our knowledge and its limits on our power, is at work not only in our political institutions but in our economic system too. American free enterprise, like our constitutional system, establishes rules of the game that restrain the powerful and create competition that helps balance freedom and progress. And in economic policy, just as in politics more generally, that framework is undermined by a populism that wants to take from the wealthy and by a technocratic mindset according to which Washington should pick winners and losers. In economics and in politics, our defense against these dangers has to start with an adherence to procedural rules and forms that restrain the hubris of the powerful — defending markets, not coddling big business or soaking the rich; defending the Constitution, not advancing technocracy or populism.
 
It is no surprise that we find the same pattern in our economic and our constitutional debates. In fact, the humble assumption of permanent human imperfections and the humble desire for forms that might prevent large mistakes are at the core of the greatest achievements of the modern age: of constitutional democracy, of the free market, of the scientific method. Yet the most ardent champions of liberalism in our politics have too often failed to see the power of such humility, instead articulating a liberalism rooted in utopian ambitions or their mirror image — naïve resentments — all dressed up as a theory of justice. 
 


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