Classical liberalism without culturally conservative content is an empty glass that will leave us parched.
Classical liberalism without culturally conservative content is an empty glass that will leave us parched.
D avid French has written a characteristically sharp essay on why “The Conservative Legal Movement Is on a Collision Course with the New Right,” but his argument jumps the rails at an important juncture and undermines his point. And his error is one that would put the entire classical-liberal project in jeopardy if we were to repeat it.
French’s central thesis is a deeply important one: that the new populist Right is talking itself into legal positions that would unravel many of the core protections that conservatives in the legal movement have spent decades building in order to preserve the freedoms of speech, association, religion, and conscience. In particular, he argues that it is crucial to preserve the rule that private groups and individuals do not surrender their individual liberties wholesale simply because they take government funds or engage with government programs.
Worlds Collide
The Left in its various forms takes an expansive two-pronged view. On the one hand, if you do business with or receive benefits from the government, you must comply with the Left’s vision of society — promote abortions, bake the cake for gay weddings, affirmatively teach and celebrate an ever-shifting set of race, gender, and sexual ethics, etc. On the other hand, the government must be expanded at every turn so as to eliminate anyone’s ability to claim that they do not do business with or receive benefits from the government.
While conservatives can and should fight the ever-increasing march of the government, it remains vital to argue that individual rights are not surrendered merely because someone interacts with a state that is pervasive: Not every benefit check, subsidy, or program is a lever with which to move the world. This is a sound approach. If, under a right-wing government, private government contractors can be forced to abandon all forms of leftism in diversity training of their workers, then by the same logic, under a left-wing government, Catholic hospitals can be made to perform abortions by virtue of accepting patients with government-subsidized health-care plans. The barrier against giving government this kind of leverage is a neutral, procedural, structural rule: It protects both sides of any argument.
That kind of neutral rule is one of the essential legacies of classical liberalism, with its roots in the Enlightenment and its full flower in the American Founding and the Lincoln-era “Second Founding.” It presumes that all have an equal right to their own religious conscience, and that bad speech should be met with more and better speech. It aims to provide a broad and level playing field on which truth can contend with falsehood, wisdom with foolishness, revelation with heresy. It rejects the notion that official orthodoxies — be they secular or religious — can stamp out dissent.
Defense and Offense
French’s underlying assumption is defensive. He assumes that small-government conservatism will lose more than it wins — an assumption borne out by decades of experience. He also assumes that cultural conservatism will find itself more often in need of protection from governing institutions than running them — also a view supported by recent experience. In a defensive posture, it is vital to have neutral procedural and structural rules to protect the weaker side. By contrast, the new populist Right tends to simply assume that it can and will take over the institutions and the culture — and soon; it therefore rejects the need for neutral rules of constraint, and wholly abandons its defenses. This mindset recalls the French Army’s Plan XVII in 1914, with its ill-conceived insistence on launching an offensive through the center while a vast German army was sweeping down on Paris from the north and every man France could spare was needed to hold the line on the Marne. It is, in other words, foolish.
In that sense, David French’s classical liberalism plainly has the better of the argument with the new populist Right, which frequently displays signs not only of having mistaken the correlation of forces, but also of not having thought through the rules it is proposing or their consequences. A heedless attack on every front is a great way to get massacred.
Crossing the Streams
Where French’s argument jumps the rails is when he uses it to criticize state governments for attempting to ban the teaching of critical race theory (CRT) in their schools. There are fair criticisms of how some of the bills that would enact such bans have been drafted; legislation is a blunt instrument with which to control a curriculum, and some of the initial efforts have been more careful than others. But French casts the bills themselves as violations of the principles of classical-liberal procedural neutrality, and they are not — except to the extent that the very existence of public schools is a violation of classical-liberal principles. (That’s a legitimate stance, to be sure, but it’s unlikely to prevail any time soon.)
Public primary and secondary schools are the state and local government. They are owned by the state. They are built by the state. They are staffed by employees of the state. They are funded by exactions from taxpayers. The government forcibly compels attendance at them, if parents cannot provide or pay for an alternative means of schooling their children. It assigns children to a school of its choosing. Kamala Harris even threatened to jail people for not forcing their kids to attend. Public-school curricula are already thick with governmental mandates of what they must teach, and what students must show that they have learned. Rare is the public-school teacher in the United States who may walk into a classroom with total freedom to cover whatever material he or she would like to discuss — and even the teacher who has that freedom is exercising it as an agent of the government. We could no more get the government out of public schools than we could get water out of oceans.
There is therefore no question of having a public school without a government orthodoxy. That orthodoxy may be general, or it may be specific, but ultimately, content neutrality is impossible. There will be content that gets taught in government classrooms to a captive audience of children. It will be content dictated by one or more agents of the state — teachers, school boards, state agencies, or state legislatures. We can argue, fairly, for content neutrality from the federal government, which would ideally be accomplished by abolishing the Department of Education. We can and should argue for content neutrality in what government dictates to private schools. But public education has content, and somebody has to decide what it is. If the Right does not take a seat at the table, it will be on the menu.
French frets that “if you can ban CRT in one school, you can compel it in another, and heaven help the professor who tries to stand in the way.” But that treats public-school curricula like Schrödinger’s cat, which is both alive and dead until you open the box and find out one way or the other. In fact, with or without legislation on the topic, CRT ideology will either be taught or not taught in public schools. In every government classroom, an agent of the government will either instruct children in a collective, racialist vision of America, or they will not. There is no neutrality, any more than flipping a coin results in neutrality between heads and tails when it reaches the ground. There is only passing the buck from one arm of the state government in which conservatives will be heard to another in which we will not be, and then washing our hands of the outcome. That’s not neutrality; it’s surrender.
Nowhere Left to Retreat
There are three related arguments that the new populist Right makes against classical liberalism that have some real substance to them.
The first charge, often exaggerated, is that classical liberalism may start off as a set of neutral rules for allowing truth to fight with falsehood, but it inevitably ends up abandoning the field by being indifferent to whether truth or falsehood wins. This is a real danger, and those of us who believe in classical liberalism need to recognize and fight against it. American conservatism has always rested on a fusion between classical-liberal principles and the more fundamental conservative vision of the good. That fusion was central to the founding of the Lincoln-era Republican Party, it was at the heart of the modern movement that came out of National Review in the 1950s, and it remains essential to uniting the differing strands of conservatism today.
Fusionism is not just a political marriage of convenience that produces a stronger coalition than either side can manage on its own. It also ensures that classical-liberal rules actually produce a good society instead of a bad one. It keeps the Right balanced between optimism and pessimism. It ensures that we do not lose sight of what we want a classically liberal set of rules for.
The new populist Right’s second argument is that classical liberalism is a one-sided game that acts to defraud right-wing voters: Neutral rules permit continued fighting about every issue on which the Right prevails, but when the Left wins, it takes its victories and removes them from the playing field. The arena in which the two sides contend thus shrinks every time we lose a round. If there are two competing visions on an issue, the Left declares that one of them is illegitimate because it is grounded in religious morality or racism. Yet, it continues to promote positions that depend upon its own teleological premises, and that promote its own collective racial generalizations.
This happens not only because the cultural Left is not actually committed to classical liberalism, but more fundamentally because the Left’s ideas undermine the very premises of classical liberalism, which it needs if it is to endure. That is scarcely truer of any idea than critical race theory, which rejects every form of neutral rule as merely a mask for white supremacy. If we do not use the legitimate tools that exist within a classically liberal structure to defeat CRT, we will live to see that structure pulled down around us like the Philistines’ temple.
The third argument of the new populist Right against classical liberalism is one of morale rather than strategy: If you keep coming up with excuses not to fight for what you believe in, your troops will desert you for someone who will. Classical liberalism was at its height in Republican politics under Lincoln, Coolidge, and Reagan, because each of them was able to present it as a winner for conservative values.
In politics, you pick your battles, or they will pick you. I often use that line against people who take the stance that we should fight on every front at all times, because they fail to understand that accepting battle whenever it is offered allows your opponents the initiative to pick their battles on the terms most favorable to them. But it has a flip side, as well: If you don’t pick any battles to fight on your own terms, you will also cede the initiative to your opponents. If you retreat forever, you will end up with nowhere to retreat to.
The battle against critical race theory is, in 2021, still a winnable battle. Public attention is aroused, and the flurry of deflections and diversions offered by CRT’s defenders — such as claims that concerns about the ideology are a “right-wing conspiracy” — is a good sign that they understand the vulnerability of their position, and are rapidly retreating from the bailey to the motte. If not now, when? If not here, where?
Neutral, classically liberal rules that protect rights of conscience and dissent are both a principle of modern American conservatism and a prudent strategy for cultural conservatives who understand that the foreseeable future is one in which we will often be on the losing side, when it comes to both the size of government and the cultural posture of public and private institutions. But classical liberalism without culturally conservative content is an empty glass that will leave us parched. There are spaces between the lines in which we must fight for truth over falsehood, right over wrong, good over evil, and justice over injustice. If we cannot do that within the schools that teach our children, what will be left for us to conserve?