“Ideological extremism is not the same thing as political ineptitude”

If you haven’t been following the conversation among William Voegeli, Geoffrey Kabaservice, Stephen Hayward, and David Frum about Voegeli’s lead article in the most recent Claremont Review of Books, you’re missing out.  (See here for some prior excerpts and discussion on these pages.  Also, if you’re interested in books, conservatism, or both, consider subscribing to CRB.)

My sentiments lie with Voegeli and Hayward, but Kabaservice’s rallies in his latest installment with this concluding observation:

The attempt to build a Republican Party that is "both principled and electorally viable" is a tricky balance, no doubt. But the GOP won’t be an electoral or governing majority again until it allows some room for moderates, regains a positive vision of government, and recovers its belief that the conservative who is furthest to the right is not necessarily the most authentic Republican.

Emphasis mine.  Indeed, my humble suggestion is that the GOP find time in its agenda of standing athwart history yelling stop to advance its positive vision.  (Marco Rubio’s been doing a fantastic job this week in carrying the water on the immigration discussions.)  Earned wealth, opportunity, economic growth, individualism, responsibility, and community don’t thrive untended.  In fact, fierce individualism and community appear at odds with one another on their face; same with opportunity and the form of economic growth that relies heavily on big, rent-seeking business.  Conservatives can advance these causes on limited government-octane, but not without some rejiggering under the hood.  Or to paraphrase Kabaservice, Republicans can advance a positive vision for conservatism and still put the government on a diet, but not if they insist on chopping off its head.

David Frum also poses some serious challenges to conservative “extremism”: 

Here it seems to me is the core problem: the big winners under the American fiscal system are the elderly, the rural, and the affluent—Republican constituencies. It’s not easy to balance the budget or shrink government spending to any significant degree in ways that don’t pinch Republican voters much harder than they pinch Democratic voters.

To escape that reality, some conservative thought leaders have constructed an alternative reality. In this alternative reality, "welfare" not Medicare is the number one social spending cost.

His point is well taken, but in fairness to conservatives, the deck has been stacked.  I wrote recently that we work within an unintelligible nomenclature—a Tower of Babel—in which we have rights to generally be left alone, but also rights to demand certain tangible things, like money, food, and health care.  Philosophically, this is nonsense:  the same word, “rights,” cannot mean both things [can they?].  One of those definitions must be incorrect.  Yet we plod ahead, trying to make sense of our president when he cites the founding philosophy of natural rights derived from nature and nature’s God to support a modern philosophy of positive rights derived from government. 

Back to Frum.  Health care, particularly for the elderly, has taken hold for now as a “right.”  Welfare, on the other hand, has not, at least not to the same degree.  So it seems unfair to insist that conservatives must rail against both equally, knowing full well that attacking the former amounts to political suicide.  A political party is encouraged to be philosophically consistent, but it can be excused for some inconsistency and prudence when it comes to policies that, for the time being at least, have become cloaked in “rights” language.  Taking a fair crack at such policies means addressing philosophical questions that make the voting public’s eyes glaze over.  And this is why Republicans are waiting for their own “The One” to come along who will capture the people’s imagination and make that philosophy-of-rights conversation possible.  That is the only way we can start asking whether we want to pay for these policies, instead of merely how to pay for them. 

I got the opportunity to meet and have dinner with Tod Kelly and commenter Mr. McSnarkSnark last night, where Tod asked me why I’d disagree with him that America is not fundamentally flawed.  We agree, after all, that America is great, distinctive, exceptional.  What is so wrong about where we are?  He has a point.  For all our problems, America is still a great country.  The problems that I complain about, and that other conservatives—including those like Voegeli and Hayward and other so-called “extremists”—complain about, are latent.  Many of the tangible problems conservatives talk about are merely symptoms.  Perhaps our economic problems will find us becoming Greece, but even that would not get to the heart of the complaints of serious conservatives.  Let me try to explain:  

If every volume of the Supreme Court Reporter burned and we suddenly were left with only the written Constitution and its amendments, many of our institutions would suddenly be illegitimate.  To some, we might say “good riddance.” Others, however, are vital if we are to sustain the modern economy and civil rights to which we’ve grown accustomed.  The point is, it is a good thing that we have these institutions that the written Constitution arguably does not permit.  But it is not a good thing that we have not formally amended the Constitution to authorize them, and instead have relied on various crises, “constitutional moments,” and Supreme Court decisions to alter our structure of government.  In so doing, the People have been deprived of the benefit of the higher law that safeguards their sovereignty and their natural rights.  To paraphrase the exchange in A Man for All Seasons, we have cut a great road through our Constitutional law to achieve arguably needed structural and institutional policies that, at the time, we perceived as too urgent to subject to longsuffering adherence to legal formalities.  But in so doing, many of our higher, Constitutional laws are now flat, and though the air is still now, could we stand upright when the winds begin to blow? 

Critics suggest conservatism places too much faith in long-dead founders and a fixed Constitution.  But the alternative is to place that faith instead in men and women now living.  Dead men and documents have certain disabilities, but among them is the inability to betray us.  If we forsake the protections they installed for our benefit as against leaders now living, what protections have we reserved to ourselves and, more importantly, to our posterity, against leaders who would breach our trust? 

Does this sound like tinfoil-hat conspiracy mongering?  Do we live in an age where the people’s sovereignty is quaint, natural rights insufficient, and an enlightened, progressive government trustworthy?  Your mileage may vary.  But it is not fair to beg the question.  Those are fundamental questions, constitutional questions, about the essence of government.  They deserve a proper vetting before we can presume to answer them differently than our founders did.  That’s the “flaw” in America today.  We purport to yield our sovereignty and natural rights by attrition, in tiny increments, such that we hardly notice.  Again, not that we haven’t gotten some nice things in return.  But we rarely examine very seriously whether it’s worth it.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. Does this sound like tinfoil-hat conspiracy mongering?

    No. Not at all. But from this viewpoint, all the conservative clamoring really started up around 2008-9. It makes me think that sometimes it is a nice fallback position to have from which to attack the opposition when they hold the executive reins. Just like the liberals who hammered the Bush admin for 8 years and then just either forgot all those constitutional ideals when Obama took office or are relegated to quiet grumbling about “our guy is still better than their guy would have been.” That’s where I find myself – horribly disappointed in Obama but relieved that it isn’t Romney.

    I’m sure that principled conservatives such as yourself and others have probably cared all along, but from these cynical eyes, much of the complaining has simply to do with not being in power – and that includes when liberals do it. The whole “Team” thing.

    I agree that the conversation you yearn for needs to happen, but worry that the well is so poisoned by mistrust about just what each side really “wants” that no real conversation can take place.

    And let’s face it, sometimes there is a huge chasm between the academic discussion of these ideas and the people in charge of making and executing laws. And somewhere in that chasm is the lever of power that seems to always sort of bastardize all the eloquence and idealism of the academic discussions and conclusions about your questions.

    • Congressional Hearings on Black Helicopters doesn’t sound crazy to you?

  2. One need not believe in natural rights–indeed, one can be a thorough-going Benthamite like me–and still madly applaud your wondermous antepenultimate paragraph.

  3. Very nice Tim. I gonna have to think about the main argument more before saying anything critical (because as it is, I can’t think of anything critical to say.)

    Except one thing. (There’s always a “but”, yeah?) You say that both Medicare and “welfare” are viewed as rights, and that this is evidence of the “latent” problems conservatives are worried about. You then go on to say that we haven’t had a discussion about whether Medicare and “welfare” are seriously worth those compromises. My short take on it (perhaps playing devil’s advocate a bit) is that Americans sorta overwhelmingly believe that there are moral, pragmatic, and even principled (this is a liberal view, I’ll admit) reasons to funnel tax dollars into those programs.

    So the question is: what’s the alternative? I mean, I get the sentiment (and argument, no less) that these programs have undermined a conservative’s conception of what government’s role in society ought to be. But given the facts on the ground, how would you answer the question “is it worth it?” while advocating for the dismantling of those programs?

    • And I want to add that this is some of the finest writing and best argumentation I’ve read from you or anyone else on a very nuanced and complex topic.

    • I think that’s a very good question. I have no idea how to approach it or even which side I’d approach it from, so I won’t try. But I think it’s a very important question.

    • It is a tough question. I’ll start with the less difficult one. Conservative principles actually supports welfare for those truly in need. Where it pushes back is where welfare programs engender dependency, as Charles Murray first demonstrated in Losing Ground. On the one hand, it’s just a pragmatic objection — left and right just want to help, and we’re just dickering over the nuts and bolts of how best to do that. On the other hand, there is also a narrative on the right that there is a difference of principle afoot, that for one reason or another the left actually wants to engender dependency, or perhaps that dependency is a side effect of the more plausible objective among those on the left to grow the state and underscore the need for increasing state involvement. The other philosophical difference, less controversial, is that conservatives, because of their focus on community, wish to keep welfare programs as local as possible rather than federal.

      As for Medicare, I think it shares the same philosophical underpinnings as welfare in general, no more no less. Again, there are some pragmatic and some philosophical differences between the left and the right. Pragmatically, it’s possible the left simply recognizes it’s more difficult to sell such an expensive program that benefits only the poor. Philosophically, and again perhaps this is just a conspiracy theory (though I admit it has my sympathies), it’s a program that demands an expansive and centralized government that has de facto taken over the private health care market. A hospital cannot stay in business without taking the government’s patients, and thus the government has been driving the health care market well before politicians began badmouthing the “private sector” in 2008 leading up to passage of Obamacare. Some conspiracy theorists believe Obamacare is the next and perhaps final step of a program in which the government eats an entire sector of the private economy. Without passing on motive, I do see it tending toward that result.

      It doesn’t seem like all that is necessary just to provide for “the least among us.” If that’s truly all we cared about, we, left and right, should be able to agree on policies that do that.

      • ” conservatives, because of their focus on community, wish to keep welfare programs as local as possible rather than federal”

        … even at the cost of higher tax rates? 12.5% state tax rate(doing the probably silly thing of adding sales and income, highest bracket) for the fine folks of west virginia, and they’re still heavily federally subsidized.

  4. Tim, this is good. But you can’t preach about others begging the question until you yourself stop begging the question in each of these posts — importing certainty (from places like back issues of the CRB?) about the state that Medicare or Social Security has left our constitutional law and or order in without even restating its basic argument. Until you yourself address those basic questions fulsomely in your own words I’m not going to be concerned about those you say others beg by not taking on the status quo that you say but don’t show those absent arguments show that we are left with. Or, if I’ve missed them, until you remind me where they’ve come.

    • Michael, I’ve set out what I consider to be a somewhat unobjectionable premise: Conservatives rail against what we commonly call the “living constitution,” but probably aren’t willing to forfeit much of what the “living constitution” serves up; thus, it would be nice if we could more deliberately examine the pros and cons. I have some ideas of what questions you might think I’ve begged, but if you’d identify them I’d be happy to address them. I will mention that I’m currently reading up on issues concerning the founding and what Jefferson called the “American mind.” So I plan to post more on this in the coming weeks and months.

      • Good and good, and it sounds like I had a partial misunderstanding of your post.

        Basically, so far you seem to me to be taking for granted that the correct approach to the constitution disallows the great body of the modern American governmental enterprise. I know that is absolute gospel on the part of the Right that you’re from, but proceeding from that assumption in a neutral forum is begging the question. I know remedying that would amount to nothing more than a rehearsal of the most basic of positions for you, but my experience of a lot of your posting is that of a basic apologia for the entire project you identify politically, which is really admirably ambitious by my lights. But it does seem to be proceeding from assumed rather than proven premises as an internal matter so far. That may not concern you; the problem is that so long as it remains the case, it doesn’t really concern me, either.

  5. Republicans can advance a positive vision for conservatism and still put the government on a diet, but not if they insist on chopping off its head.

    That’s a really great line.

    What protections have we reserved to ourselves and, more importantly, to our posterity, against leaders who would breach our trust?

    None. But I’m fairly certain that this is the case regardless of the state of the law. The trappings of the law are important, and all, certainly. The weight of it, the presence of it, itself, is the thing that probably matters, though. When it comes to protecting us against leaders who would breach our trust, that’s unfortunately our job in the long view. The Constitution, or the body of law, or social opprobrium, or any of the other tools and widgets that assist in that… they’re valuable tools and widgets, but when it comes right down to it, I think the American populace is the last guardian of the Constitution, not the other way around.

    I’m genuinely in agreement with the “the Constitution ought to be brought in line with our current body of law through amendment” thought, because I prefer systems to be generally more consistent than less, but I don’t see much of a way to do that without changing the process by which we amend it. It’s pretty obvious that we set the bar too high; we ignore the rules all the time because we made it too hard to change them.

    • Patrick, I’ll partly agree and partly push back. Ultimately, yes, it is the people’s duty to safeguard their own sovereignty. But in discharging that duty, they erected a Constitution that separated powers to make tyranny less likely. The founding generation’s muskets were still warm when the Constitution was enacted; they had no truck with defending their rights by force. But I suspect they hoped their posterity could get to the business of earning a living and raising a family rather than engaged in endless warfare for freedom. (If not, I think our gun control discussion would take on a much different shape!) Which is to say, I reject the suggestion that neglecting the “tools and widgets” in the Constitution is ok if the politicians who do it get away with it. Sovereignty is in the people, but forcing them to take up arms to defend that sovereignty, rather than simply obeying the laws the people set up in the Constitution, is lawless and wrong.

      I want to read more about the point in your last paragraph. We’ve amended the Constitution 27 times, not so dismally uncommon. While it’s possible that “we set the bar too high,” it’s also possible that it became too easy to get the same result through crises, constitutional moments, and court decisions. Lowering the bar on the amendment process won’t close those loopholes.

      • Which is to say, I reject the suggestion that neglecting the “tools and widgets” in the Constitution is ok if the politicians who do it get away with it.

        That’s not at all what I was attempting to suggest, ugh. In fact, I agree with you on this part.

        Aside from getting all down in the ontological weeds about what we mean by “ok”, there’s things that are justified by circumstances and there’s things that are justified by principle. If wishes were fishes, we’d like the law to cover them both, but I doubt this is actually possible, since we can’t create closed, complete, and consistent systems… and indeed, some circumstances are so extraordinary that attempting to plan for them ahead of time is doomed to failure anyway, so rather than try to engineer a law that takes into account every possible exigent circumstance, you make a reasonable law and you let the court system do the guilt-association work.

        So there will be times when we (as a society) will do things that are justified by circumstance that aren’t justified by principle. This maps to the law: “Well, sometimes we’re going to ignore the Constitution and do something anyway” (I think it’s reasonable to say that this would happen regardless of the Constitution we were using).

        That doesn’t make it “ok” (or not), it should instead be a case where we should examine whether or not the Constitution should be changed to accommodate that thing, or should we just stop doing that thing and pay reparations (if necessary). We definitely should post-mortem these crisis events or court decisions and work to make our policy consistent, and we don’t… and in the over-arching sense, that isn’t okay, as a process… even if the results tend to be more ok than not.

        Sorry, this is coming out muddled.

        Here’s a specific example: torture, in my opinion, is never justifiable in law. There never should be a legal codification of a time or set of circumstances when it’s okay for someone to torture somebody else. That’s why we have a jury system: if there are a set of circumstances when it might be considered okay to torture somebody else, the jury should decide that at the trial of the guy who did (or ordered) the torturing. The barrier for torture should include this check: if you’re not willing to potentially go to jail for doing something to somebody else, then whatever info you’re trying to get out of them… it’s probably not important enough for you to torture them to get it.

        Everybody involved in the torture scenario should be hauled in front of a judge and called to account. Maybe some of those cases, a jury will find the circumstances important enough to give them a pass. Maybe in some of them, they won’t. And certainly, in some of those cases, people who shouldn’t get off will and people who should not get off won’t. But just ignoring the fact that we broke our own rules and not performing the audit shakes the credibility of the system.

        Bank bailouts, there’s another example. It’s pretty clear that a bunch of those turds committed knowing fraud. It’s pretty clear (disclaimer: opinion) that there should be reams of electronic data to support a conviction of said turds. Now, maybe we can say that the exigent circumstances of the financial crisis warranted buttressing up those financial institutions temporarily to prevent the economy from taking a header. But every single company that got bailed out should have taken the money with a side of full-blown forensic investigation and people should be in jail. Again, maybe some of those cases, a jury will find the circumstances important enough to give them a pass. Maybe in some of them, they won’t. And certainly, in some of those cases, people who shouldn’t get off will and people who should not get off won’t. But just ignoring the fact that we broke our own rules and not performing the audit shakes the credibility of the system.

        Sometimes you gotta break rules. I’m down with that, as a principle, even though I very often disagree with how often it needs to happen and what sort of rules need to be broken.

        When you break the rules, though, you need to perform your mea culpa in the public sphere and take your penance, if it’s so ruled appropriate. Otherwise, you shake the credibility of the system.

        I think, by the way, that we’ve had a number of exigent circumstance moments in the last two decades, and both political parties have done a horrible job of forcing the mea culpa and the penance, mostly for cronyism reasons. I understand why this happens… if you think the circumstance was dire and your buddy is the one that did the thing that broke the rules, you don’t want him to have to fess up for it, because he might be found guilty of something for doing something necessary.

        Tough patootie.

        While it’s possible that “we set the bar too high,” it’s also possible that it became too easy to get the same result through crises, constitutional moments, and court decisions.

        Well, now, that’s a valid counterpoint, and I don’t really have a way to shout that down, because you’re correct.

        I often look at the Constitution as two slightly different things; a failure prevention system and a security system. They’re similar, but not quite the same.

        From the context of the failure prevention system, it’s worked pretty well. It was designed to facilitate the peaceful transition of power from one ruling entity to another, to provide a continuity of legitimacy… and since we’ve only had one major crisis on that score (and that crisis, to be sure, was a rather exceptional exception scenario), I think it’s doing its job fairly well. Regardless of how well (or poorly) we follow all the details of the document, it’s working in that role.

        From the context of a security system, far less so. The separation of powers doctrine is a damn good idea, but the founders (not being security wonks themselves) didn’t properly separate the powers. This is to be expected; it’s kind of an old document, really, and we’ve had a long time for nefarious actors (of varying degrees of “nefariousness”) to find places where the system can be gamed.

        And you’re correct, crises, court decisions, and constitutional moments are all contributors to that, and they won’t go away.

        They certainly won’t go away as long as we let people skirt the rules but then not step up in front of a mic and admit that they did it, and explain why they thought it was necessary, and we hold them accountable.

        • Patrick,

          Interesting idea about the “mea culpa in the public sphere.” We did have two populist movements following the bailouts – the Tea Party and Occupy. The Tea Party had major victories and still has a fair amount of influence on mainline Republicans. But Occupy didn’t seem to have much of an effect. I think I heard of only a very small handful of convictions of bankers.

          the founders (not being security wonks themselves) didn’t properly separate the powers.

          Last night, I was listening to the interview of Justice Scalia on Uncommon Knowledge, and Peter Robinson asked if he was optimistic of the Originalism project. He said he didn’t know if he was anymore. Robinson reminded him that when he took the bench, Originalism was discredited if it was recognized at all, and now it has a contingent on SCOTUS and no law school can be a real contender that doesn’t have serious originalist scholars on its faculty. Scalia laughed and was heartened.

          The founding obviously was a much more recent affair for the first half of the nation’s history, and giving heed to the original public meaning was less controversial or difficult than it is now. It’s only in the past hundred years that we started experimenting with vastly new forms of constitutional governance. And today, we find ourselves with a serious choice about how to read the Constitution. And one of those serious choices is to give a reasonable rendering of the text and the original public meaning as opposed to expositing larger abstract purposes.

          Which is to say, I don’t know if the founders “didn’t properly separate the powers.” There’s only so much you can do with language and documents if people are going to extrapolate purposes rather than meaning from them. And like Scalia, I’m heartened at the growing contingent of Americans who believe we need to pay closer attention to original meaning than shifting purposes.

          • Speaking of properly separating the powers, what I meant was that they’re still conjoined in ways that make the system fragile. Hey, the Founders were working years before complex system theory, they ought not to be expected to have gotten it all right on the first go.

            Several things aren’t well defined, particular the relationship between the States and the Federal government.

            Similarly, there is serious screwups regarding the way the Legislative, Executive, and Judiciary *ought* to overlap, in the structure of the operations of the Federal government, itself.

            We didn’t have explicit judicial review until the Court gave it to itself. It doesn’t engage in this actively, it’s only through a standing process… one that makes it so that many things which seem on the face of it clearly un-Constitutional (1973 War Powers, for one) don’t get review, and thus become the effective law of the land.

            Congress rightly has the power of the purse, but it’s not clear to me that they ought to have the power of discretionary spending.

            It’s pretty clear (to me) that the Constitution was not intended to be the sole law of the land, just the framework for making things fit together in the future. We broke it in the Civil War.

            It’s probably well past time to call a do-over.

      • While it’s possible that “we set the bar too high,” it’s also possible that it became too easy to get the same result through crises, constitutional moments, and court decisions.

        It’s also possible that it’s just not been clear enough to enough people that the Constitution in fact needed amendment in order for Congress to do what there had developed a governing consensus to do. You could see this as a lack of education; I could see it as a constitutionally relevant difference of popular opinion as to the meaning of the document.

  6. I’ll put my faith in the living, and not in the dead.
    For the living can testify, can stand up and shout “That’s not right!”
    … and, even more importantly, the living can change.

    It seems sound and sensible that we ought to have a grand debate about what we really ought to have as a constitution. Not, necessarily, to tear down the conlaw fabric that we’ve built, but to systematize it, and put it to some dialectical scrutiny.

  7. When was the last time you heard people complaining about rural electricity? How about the Byrd Highway System (Sam,I’m not picking on WV)?
    My point is: we already think of welfare as a right. we just restrict it to the “right kinds of folks”

  8. Alright then. The deeper problem is that we’ve weakened the bulwark against tyranny by getting out of step with the constitution, even where the inconsistent institutions are beneficial or necessary.

    S0, taking Constitutional consistency as the real issue, in order to preserve the Constitution as a bulwark against tyranny. And having admitted that some of “these institutions that the written Constitution arguably does not permit” “are vital if we are to sustain the modern economy and civil rights to which we’ve grown accustomed”. Then it behooves you to take a clear-eyed look at ALL the institutions of government, to examine how consistent they are with the Constitution. Included (perhaps especially, if you want to maintain your credibility about this project) those institutions that conservatives particularly support.

    I’m tempted to bring up the Drug War at this point, but it’s not really a matter of making this a partisan political fight where one side screams about ObamaCare and the other about Raich and each calls the other hypocrites, though the controversial issues will eventually have to be tackled SOMEHOW. Rather, start with the “easy” problems, where the institutions themselves, even if not equally beloved by all, are widely seen as established and non-tyrannical parts of the state, and where there’s clear evidence of changes of circumstance since the founders’ time. National defense, say.

  9. Good article, but I’d argue a different tack.

    “regains a positive vision of government”. This is wrong. Since all gov’t is force, it behooves us to minimize it when possible. Rather than looking to “cut back” from an outrageous bloated monster, you look at what should be the proper size. If it’s not authorized in the constitution, it’s gone. Period. Admend the constitution.

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