The Conscience of a Progressive
A Critique of George Will and Timothy Sandefur
Introduction
A book, recommended by self-labeled conservative and Washington Post columnist, George Will, gives me some clues regarding our recent political rancor. I am grateful to Will for his introduction to a thoughtful book that explains the political philosophy that grounds his continual attack on us progressives. (Please, not to be confused with progressive philosophy or party.)
The book is Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur of the Cato Institute. I award the book four stars, not because I agree with it, but because it made me think critically even to the point of taking a hard look at and refining my own political philosophy and way of life. Will, in adopting Sandefur without critique, confirms his own antipathy to the progressive agenda in 20th and 21st century America.
I agree with the central thesis of Sandefur that the Constitution can only be fully understood by reading it in the light and context of the Declaration. To me that is critical history theory. To understand a “sacred scripture” of religion, science, literature, or politics, we must consult the socio-historical context, the language, the antecedent and present perspective and the documented worldview of the persons writing and those being addressed at that time and place. For me constitutional fundamentalism (often known as originalism and/or textualism) is as misguided as biblical fundamentalism.
I liked Sandefur’s exegesis on the rule of law and due process. I also liked his use of “conscience” in understanding the Declaration and Constitution and in his appeal to natural law. He thus denies positivism: the claim of certainty based on authority, formal logic, scientific proof, and naïve realism that rejects principles like truth, freedom, and equality. I also liked his argument for the priority of national citizenship over state or local jurisdiction citizenship.
But I have some questions which lead me to far different conclusions than Sandefur and Will’s opposition to progressives. I attempt to answer these questions, raised by Will and Sandefur, as a way of articulating my conscience of a progressive.
First, is there a principle of freedom beyond simply individual emancipation from outside influence?
Sandefur and Will define the right of liberty in the Declaration and Constitution primarily as freedom from obstacles. It means no curtailment of an independent person’s activities, no regulation of their private lives including their religion, education, self-defense, and commerce, no proscription of activities and individual pursuits up to the point where some other adult person’s rights to privacy are violated and individual pursuits are truncated.
But there is another kind of freedom, affirmative freedom which is also built on the nature of humanity as social, collaborating animals who interact with their environments by using symbols fabricated, given, shared, and revised in the company of others. This is the freedom of agency in the creation of their selves and their world including the structures of interaction with each other. Those structures of interaction include 1) language, science, and culture by which humans discover and create meaning of themselves in the universe, 2) production by which humans attain livelihood, and 3) governance or politics by which humans attain power, the ability to act, and respect, recognition from one’s associates. The political realm is the realm of freedom to. It is the public outside the household which promotes and protects meaning and livelihood for all. A freedom in which humankind has autonomy and in which all people have a say in their determination of the laws they observe.
Secondly, does democracy infer mob rule and therefore must be restricted to protect the rights of individuals and minorities.
It seems Aristotle thought of the “demos” as mob or mass and even spoke of democracy as mob rule. Mob rule often supports a strong man dictator who decides and executes the rules that structure the economy, culture, and government. I agree with most theologians and philosophers that affirmative freedom must also have boundaries, the rules within which the public and its citizen work. And I agree with Francis Fukuyama that a polity that abandons the “rule of law” without due process including accountability of the governed is in decline and will not stand.
A democracy which is neither one, nor few, nor elite men rule but in which all the people in the public sphere make the rules including the rules that promote and protect the rights of individuals in the private sphere. Democracy, perhaps not in Athens where demos meant mob but in America where demos means public, is governance by organized people fully inclusive to all people under rules that have been approved by the majority who believe, after listening and debate, that they act for the good of all. A thoughtful majority rather than a righteous mob or a violent faction.
Were the Boston Tea Partiers a mob? The tea-partiers disguised as American Indians committed illegal acts in Boston harbor. They knew they were violating a law for which they had no ability or even access in its making. The freedom they sought and the tyranny they opposed was a government in which they had no voice. Their leaders wound up not dismissing or even lessening government but creating a more effective government built on the desires and hopes of the governed. In their Declaration of Independence from the King of England and their subsequent Constitution of the United States, they were guided by a vision of a place of freedom that had not yet come to fruition in western civilization. I consider them progressives because they had an inclusive vision that guided them to the vision of freedom and justice for all.
Unfortunately, today people are using the term “populism” to describe mob action whether left-wing or right-wing populism. They consider any large march or assembly as mob populism. But that is not the meaning of democracy which values assembly including marches and holding rulers accountable.
Thirdly, is liberty the end or substance of politics and its institutions and is limited democracy a separate and secondary means or procedure to that end?
Yes, say Sandefur and Will and others who attend to private, over public, rights. They make the primary purpose of republican government the defense of individual and minority rights. They do this to limit democracy (popular majority rule) by affirming state sovereignty, bi-cameral congress, indirect election of senators, an electoral college that can override most of the voting citizens. This limited democracy is process but not goal. But again, the purpose of democratic government for the framers and ratifiers of the Constitution was not democracy as a form of government. They desired to guarantee the individual private rights of all persons — excepting in the beginning Indians, slaves, and women.
Therefore, when supreme court justice Breyer affirmed that the goal of American government and law is democracy, he was wrong says Will and Sandefur and many others jurists who claim that the USA is a Republic not a Democracy. Many of these jurists call themselves originalists and/or textualists who interpret the Constitution and all legislation by using the plain meaning of the text of a legal document and how it would be understood by people at the time they were adopted.
Here I use Sandefur’s argument against himself. You can distinguish substance and procedure, ends and means as he does but you cannot separate them. They are wound together. He articulates this when discussing substantive due justice. “The distinction between form and substance recedes from our grasp as we approach it. The two are inseparable in physical reality: all substance exists in some form, and no form can be expressed except in a substance. The same is true of law. A legal procedure is comprised of substantive rules. But procedure is also a substantive right in itself.”
Of course, if you define democracy as mob rule that denies the rights of individuals, it cannot be the desired state that the Declaration and Constitution are portending. But if democracy is defined as government of, for, and by the people then it is more than a form or process. It is the very purpose and substance which defines government and all the institutions of the nation. And therefore, contra Will, Justice Breyer is right on target when he says that the Constitution, following the Declaration, is basically about democracy. Democracy is not only the form, process, and way. It is the substance of the good society envisioned by the Declaration in which the rights of all humans individually and collectively are protected and fostered in a nation that considers all humans of equal dignity and therefore freedom and justice with the necessities of life, liberty, and the pursuit of happiness.
Fourthly, Is the “pursuit of happiness” in the Declaration the same as private property rights?
The phase that Jefferson used as universal rights was borrowed from Locke’s “life, liberty, and property.” Jefferson under Franklin’s scrutiny substituted “pursuit of happiness.” Some scholars would argue that meant individual property perhaps believing that the only way to be happy was owning private property.
Others (e.g., Hannah Arendt) argue that happiness is much more than the private acquisition and retention of material goods. There is also a public happiness, the ability to participate in shaping the commonweal and thus be recognized by one’s fellows and oneself as an agent, as enjoying power — power here meaning not the ability to force one’s individual will, but the ability to generate the community, nation, and world within which all humans can define and shape the contours of their community. Public happiness and its pursuit, more than individual private property and its acquisition, is the purpose of humanity personally and collectively.
The joy of winning the battles of Trenton, Saratoga, and Yorktown was second to the joy of establishing the American Continental Congress and the Constitutional Convention. Public happiness reigns over private satisfaction — and is the highest fulfillment of human aspiration.
Fifthly, Is the 14th Amendment that prohibits slavery a renewal/continuation or a reform/change of the Constitution?
Sandefur says because of the Declaration, it was already implied in the Constitution. My reading of the development of the 14th amendment, especially by Eric Foner and even of Sandefur’s treatment of citizenship in the ratification and aftermath of the constitution including Civil War and Jim Crow legislation, convinces me that it was a fundamental change. It was in effect a re-founding of the nation which, yes, applied the principles latent in the naturalist, enlightenment philosophy behind the Declaration. One could argue that it was even in the head of Jefferson who argued against slavery in Virginia but did not curb its practice and succumbed to the individual rights of personal property, including slaves.
The Great Compromise of the constitutional convention in Philadelphia put the unity of the colonies as sovereign states ahead of the universal rights of humanity to secure the Union and its order. Some have argued that even Lincoln, the Great Emancipator, put the order of union ahead of emancipation based on the universal rights of humanity. He fought a war to secure the Union and came to the realization that the union could only be founded on a government of, for, and by the People, all the people based not only on individual rights but the rights of the public. The vision of America as a space of freedom and justice for all is still in process through women’s rights, LGBTQ rights, immigrant rights, and even the rights of convicts which are founded in the very nature and dignity of being human.
A textualist would show that “citizen” in the common understanding of the framers and ratifiers excluded many who participated in the growth and progress of the new nation. However, they opened the constitution of the nation for change to strengthen the union and meet new circumstances.
Sixthly, Are all progressives positivists and vice versa?
I consider myself a progressive in the tradition of the radical Republicans under Lincoln and Grant, the Roosevelts and especially Eleanor, Jane Addams and John Dewey, Socialists Eugene Debs and Michael Harrington, Labor leaders like Walter Reuther, Community organizers like Saul Alinsky, the Catholic Bishops of Canada and the US in the 1970s who wrote letters in which they called on politics and its institutions to legislate limits on the economy and its institutions and create a social order that put an end to poverty, segregation, the rule of force over the rule of law.
In no way am I a positivist as defined by Sandefur and Will and many other learned philosophers and political thinkers. As demonstrated by his mentee Richard Rorty, John Dewey, probably the greatest philosopher and educator of American democracy and so the greatest critic of authoritarianism, was not a positivist.
In Will and Sandefur’s treatment of progressives as straw men to be knocked over, they make small “d” democrats and democracy itself to mean an ideological philosophy, a type of government (as did Aristotle), and leave civil society out of politics which they leave to the politicians and officials of government.
Seventhly, Is there a natural law? Is it unchanging and transcendent? What is conscience in relation to natural law?
Sandefur and Will and many other political scientists, especially those who consider themselves “on the right” or conservatives, disdain the progressive tradition and its politics. I believe that they have many grounds for that and am willing to argue with them without considering them unpatriotic or evil, just mistaken. And most of all without creating a social order in which two opposing teams battle it out sometimes with violence like gladiators or footballers in the arena so that someone wins and someone loses.
Democracy is, but is not only, a means or process. Sorry, George Will, democracy is the end and substance of our nation (and I would argue our humanity) at all levels. It is not simply a right to do what I want to do if it leaves people to do what they want to do. It is not only a negative of a negative or a restriction on restriction. It is an affirmation of a vision for our community, our society, and our nation. When our “side,” “team,” “tribe” wins and other sides, teams, and tribes lose their humanity and universal rights, the substance and process of all the people lose.
But a sticking point in our argument: is there a fixed nature including human nature and its law? None of us who are educated in contemporary science and philosophy, its history and its limitations, would argue science and the knowledge of nature is certain and unchanging. Nor are the subject and objectives of science, our understanding of nature, nor evolving nature itself. This point deserves another study and there are many who are attempting to do just that.
Because Sandefur and Will 1) define freedom as liberty from restraints and 2) define democracy as majority or mob rule based on the situation the founders faced, a definition that was changed under Lincoln as rule of, by, for the People and 3) because they do not accept the implications of evolutionary and quantum science in the understanding of the Universe, they do not accept that democracy, including the will of an enlightened majority, is the goal and end of government towards which we to work at every level of our nation — our neighborhoods, our assemblies, our workplaces, our schools, and our interactions with all other nations of the world.
But whatever the Universe, all reality, is doing or however changing, we do have special access to an understanding of contemporary human nature, thanks to human nature revealing itself here and now. To some extent, through multiple findings in archeology, anthropology, and human records, we know human nature’s history. We now have access to its biological genetic and cultural mimetic make-up and development. We are on the brink of knowledge through neuroscience on how the neural system, centered in the brain, works — including many diverse behaviors. And we are making progress in our studies of consciousness: our inner awareness of ourselves as we think, learn, know and generally interact with each other and our environment to build and change our world.
General consciousness is that awareness of self as we behave or act in our world. Some philosophers, many using the insights and tools from science, have developed tools for revealing that subjective awareness that happens even as we are not focused on it in everyday living attending on things or objects. Moral consciousness is what we English speakers call “conscience.” (The French use the same word for both knowledge and behavior.)
Conscience implies an inner sense of what we are doing in relation to our trajectory of being human. We “know” what it means to be human by living as a human. We know that being human means that we are continually learning in the company of others through language but also other symbolic behaviors in which we “get inside” the other and feel how others are seeing, feeling, thinking. We have a sense of what philosophers call intentionality toward the world, toward happiness, toward others, toward adulthood, toward death, toward transcendence, toward becoming more and better than we are.
How we express that transcending inner life will differ in what language, culture, and stories we have grown up in. But critical thinking tells us not confuse our expressions with the reality of our transcendence. If we do that, we become dogmatic; and we stop transcending, stop curiosity, stop inquiring, stop discovering new ways of “singing the world.” Dogmatic liberals and conservatives do that. But so do progressives and reactionaries when they become dogmatic and stop being progressive.
Eighthly, Can local and state citizenship be a means to national citizenship?
I was intrigued with Sandefur’s treatment of citizenship in the American experience and law — which also relates to sovereignty. I mainly bow to Rogers M. Smith masterful treatise on citizenship Civic Ideals: Conflicting Visions of Citizenship in U.S. History.
Who are citizens in a democratic republic? I believe they are those who believe in the dignity and rights of all including the right to participate in the establishing the contours of that republic. Everyday, I find people who are citizens but unrecognized because of their ethnicity or birthplace. Yet they are doing what citizens do — involve their neighbors in building the community in which all are recognized and achieve respect. Yet the immigration law of the state does not recognize this.
I explore the possibility of those who behave and act as citizens to be recognized as citizens, first in their local committees, and then in their states and nation. If those who truly understood what it means to be citizens were to rally with their neighbors, they would make sure that their neighbors would support the citizenship, and all the rights and responsibilities of citizenship, for their neighbors.
Even now there are jurisdictions who do recognize the citizenship of people, often refugees from other countries, with the full rights, including voting, of citizenship. Let us build on this.
Conclusion.
My Divine Comedy map, with apologies to Dante, puts dogmatists of all stripes into the Inferno. They are stuck in their righteousness and idolatry turned iconoclasm. So go to Hell, dogmatic conservatism, dogmatic liberalism, dogmatic progressivism and all their people who know they are right so they will not change or even question their minds.
In Paradiso, I place true progressives with their focus on the great society over individual self righteousness. But I acknowledge that they can be conservative, relying on the past and its lessons, or liberal, open to change to a new future. I have identified my heroes of progressivism whether savoring past truths or enhancing future possibilities. But I am schooled in the need and art of dialogue. There is a time and place to construct boundaries to keep harm out and another to tear down walls to let in novelty and nourishment. In fact, for me that is the mark of true progressives — not how liberal or conservative they are. True progressives like great warriors can change their positions.
In Purgatorio, I find myself and most of us. We are neither fervent, nor frigid. We can be wrong and often are. We are in between and in transition. I trust that Will and Sandefur are here as well. They have not given up on thinking, the way that Eichmann did as Hannah Arendt found him in Jerusalem. I bet I share their vision of a place of law over force which we can co-create without force but under law. A law that both constrains behaviors and policies that do harm to others and that liberates us all without restriction of race, sex, birthplace, gender, and all other ascriptions to participate with power and respect in the making of the prescriptions that govern the place. And which gives everybody the means of livelihood and the meaning of education, so they can pursue not only private but also public happiness.
A progressive, whether conservative or liberal, is not dogmatic. And not autocratic. A progressive realizes that freedom, justice, equality, and democracy is a work in progress. A progressive realizes that humans are on a journey. A progressive realizes that the public realm, the state of democratic social change, is the purpose, not just the means, to human being, behavior, action, and thought.
The dogmatic conservative views of Sandefur and Will are based on a faulty idea of human nature and natural law. This mistaken view neglects or rejects the role of community in the growth and achievement of the body, mind, and spirit of human existence personally and collectively. It subjects the public good to individual private goods by making the purpose of government the rights of the individual without seeing that those rights are only possible through a vital, thriving public.
This mistaken idea puts private interests over the public good and reduces the dynamic tension which is the very substance of human existence. The carriers of this idea do not learn from what humans have learned about themselves through biological evolution, evolutionary psychology, and the education of children. They assume concepts without understanding the nature of understanding and the enhancement of concepts as humans continue to interact with one another and with our changing environment.
We hold these truths to be self-evident. That is a declaration of liberty not apart from the people who have organized themselves for freedom and its institutions, but within the people and their institutions. The framers of the Constitution and the Declaration of the Universal Rights of Humanity started, or at least continued, us along that path of freedom.
Lincoln and the radical Republicans gave that freedom a new birth by changing the institutions, especially the institution of slavery. Douglas, DuBois, and King further changed the institutions by opposing Jim Crow legislation and by affirming the rights of all to both negative and affirmative freedom throughout the nation, including women, workers, immigrants, disabled, and cultural misfits.
Yes, many mistakes are made when we confuse the realm of freedom under law with the rule of force or when we define governance as the monopoly on the means of violence. This stimulates not participation and acceptance but reaction and hatred. This is the hubris that brings us down. A progressive is a person who has faith without solid evidence or absolute certainty that we can do and be better, that life is good, that we have a future.
Most of us can feel the intentionality to good in our bones and understand a preferred direction for us all in our brains. But whether we follow my preferred thinkers and actors or others, we can all pray and act for justice and peace. A progressive freely accepts, rather than shifts, responsibility to extend that freedom throughout the community, the nation, and the world.