-Caveat Lector-
>From the NewRepublic
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October 21, 1999
COMEBACK KID
A Necessary Good
by Alan Wolfe
A Necessary Evil: A History of American Distrust of Government
by Garry Wills
Simon and Schuster, 343 pp.
(Click here to buy this book.)
For a society that constantly changes, America has a remarkable capacity to
stay the same. One thing that never seems to alter is a deep distrust of
government. Forget, for the moment, that America at the end of the twentieth
century, compared to America at the end of the eighteenth century, is populated
by people from all over the world and not just from the British Empire and
Africa; and is dominated by global capital rather than by the cycles of
agricultural production; and is linked together by new te chnologies and not
separated by impossible distance; and extends rights to all its citizens, not
to a privileged few. All those discontinuities notwithstanding, pronouncements
made by anti-Federalists such as Patrick Henry or radical individualists such a
s Henry David Thoreau to the effect that centralized power in Washington is
evil could just as easily have been made by Republican isolationists in the
1940s, or leftist student radicals in the 1960s, or Ronald Reagan in the 1980s,
or militia members now.
What explains this peculiar preference for weak government, even as government
in this century has defeated foreign aggressors, kept the peace, spent us out
of depression, built the country's infrastructure, established the rules of
capitalist competition , transformed (much for the better) the last years of
life, provided a modicum (now almost completely disappeared) of intelligent
programming on television, brought water to the desert, improved agricultural
efficiency, and guaranteed some sort of safety net for the worst off? This is
the question which Garry Wills tries to answer in his new book. He fails to
provide a convincing explanation for a paradox that has defied nearly every
commentator on the American scene, but he offers an important corrective to the
myths that motivate our incipient anarchists (who are often to be found in the
precincts of radical conservatism). He also proposes an intriguing argument for
why any good society requires a government capable of acting in the public
interest.
Political ideologies are like templates. Their fundamentals are not really
ideas so much as they are wisps of ideas: brief fragments, the mere mention of
which, as in the techniques of word association, immediately conjure up
statements of principle to be defended at all costs. The anti-governmental
template, according to Wills, contains the following terms: provincial,
amateur, authentic, spontaneous, candid, homogenous, traditional, populist,
organic, religious, voluntary, and participatory. You can fin d them assembled
in a movie by Frank Capra or in John Ford's The Man Who Shot Liberty Valance.
The American hero wants only to get on with his private life, which he finds
perfectly satisfying. Usually he can do just that; but on occasion he will be
called--against his inclination--to governmental duty. There he finds people
committed to values ent irely different from his own: they are cosmopolitan
experts, adept at talking among themselves in a language that few others can
understand while serving the interests of the elite who pay them for their
attention. His incorruptible integrity eventually w ins the day, but not much
more than that, for he has the sense, as he departs once again for private
life, that the minute he leaves, government will be back in the hands of the
crooks and the interests.
Wills's book provides a catalogue--and catalogue descriptions--of all those
who, throughout the course of American history, have subscribed to this
ideology. They include nullifiers such as John Taylor of Caroline, the
subscribers to the Hartford Conventi on, and John C. Calhoun, all of whom
argued that local government can take precedence over national edicts. For
Wills, nullifiers stop one step short of those who advocate secession. Both
rely on the same ideology. Before, during, and even after the Civil War,
apologists for the South used all the terms affiliated with the anti-
governmental template. "The North," Wills writes, "is seen as impersonal,
mechanical, efficient--the very things resented in central governments. The
South is seen as spontaneous, traditional, organic--it liked to picture its war
as a repeat of Washington's with England, local minutemen up against the
disciplined forces of empire."
Closely connected to the nullifiers and the secessionists are the
insurrectionists: Daniel Shays, the participants in the Whiskey Rebellion, and
John Brown. More spontaneous and amateurish than professional revolutionaries--
most of the latter become stron g statists, if they succeed--insurrectionists
launch inevitably hopeless attacks against symbols of governmental authority.
They are, Wills adds, the direct opposite of vigilantes, another group
attracted to the anti-government cause. The former attack go vernment as too
repressive, the latter attack it as not repressive enough.
Two other categories round out Wills's list of anti-government crusaders in
American history. There are the withdrawers and there are the disobeyers. The
withdrawers--such as Henry Adams, Albert J. Nock, Henry David Thoreau, and H.
L. Mencken--take a prin cipled position that "contact with government sullies
one's own purity." Highly individualistic, their protests, like those of the
insurrectionists, are not meant to be effective or even persuasive to others.
That is why they differ so much from the disob eyers, figures such as Martin
Luther King Jr., who selectively break laws as a way of leading a mass movement
for social change. Wills points out, quite correctly, that while King expressed
his admiration for Thoreau, the two were worlds apart: Thoreau wa s prissy and
contemptuous of ordinary people, while King was inclusive and inspirational. No
wonder that the one led a successful attack on the government in the segregated
South while the other was happy in his self-imposed isolation.
Despite the presence of so many anti-governmental principles throughout the
course of our history, Wills observes, most of those adhering to them still
feel the need to invent validating myths about the American Revolution and the
adoption of the Constitu tion. He has particular fun with the notion, advanced
by the adherents of contemporary militias, that since we required a
revolutionary war to win our independence, we have always been a country in
which citizens were quick to take up arms against injusti ce. Actually, he
points out, during the Revolution there were not many weapons around, and draft
evasion was frequent, and discipline was close to non-existent. Where the
militias were successful, moreover, it was to keep order among their fellow
citizens .
The myths spun about the Constitution in defense of anti-government ideology
are no more persuasive. For the Constitution was written for the express
purpose of overcoming weak and ineffective government in the states. The three
branches of government wer e not created equal. The Bill of Rights was not
adopted to placate the Anti-Federalists and thereby to undermine the victory of
centralizers such as Madison and Hamilton. The case for weak government relies,
then, on an underground version of American his tory, one that never actually
happened but nonetheless serves to inspire those committed to pursuing the anti-
government cause today.
The anti-governmental cause in our own day is clearly on Wills's mind
throughout his book. Each American tradition of belief in the evils of
centralized power, he argues, has a contemporary equivalent. Withdrawers such
as Thoreau inspired hippies and rura l communes, and (though Wills does not
mention him) the seemingly principled refusal of Edmund Wilson to pay his taxes
in protest against the Cold War. The vigilante spirit lives on in the anti-anti-
gun campaigns of the National Rifle Association. Anti-ab ortion protestors have
adopted both the non-violent tactics of Martin Luther King Jr., and the
insurrectionary fantasies of John Brown. (Had he read any history, Timothy
McVeigh would also have compared himself to John Brown.) It is hard to find
advocates of secession in America today, and Wills cites none; but all the
other categories are well represented.
Wills is a gifted rhetorician. He writes so skillfully, and in such a
reasonable way, that the reader is led along in agreement--until one reaches a
point at which common sense is left behind. For me, the point comes when Wills
stops by the Yale Law Schoo l. There he finds Bruce Ackerman, whom he
immediately cites as an example of a contemporary nullifier. Now it is true
that Ackerman is not one of those who believes that the Constitution was set in
stone, never to be changed except through the detailed pr ocedures for
amendments set out in Article V. And his belief in the fluidity of the
Constitution can put Ackerman into strange company. Defenders of the Southern
way of life like to point out the illegitimate ways in which the Southern
states were coerced into ratifying the Fourteenth Amendment, just as
conservatives argue that the New Deal represented an illegitimate usurpation of
power unintended by the Founders.
Ackerman has no problem with such arguments, except for the presumed
illegitimacy. In his view, the Constitution has been amended without relying on
its specified amendment procedure whenever "we, the people" exercise
plebiscitory powers to force new cons titutional understandings into existence.
Reconstruction and the New Deal were both as close as America comes to
situations in which normal procedures are suspended, resulting in major
constitutional modification. For Wills, Ackerman's argument represents a strain
of nullification because it implies that people are correct to assume that
existing laws and procedures are without authority. He finds--as do I--a kind
of romantic worship of authentic democracy in Ackerman that has more in common
with Jefferso n than with the practical realism of Madison and Hamilton.
But how much does Ackerman in reality overlap with John C. Calhoun? Both were
critical of the Constitution, and wrote treatises outlining new theories of
government; but a thought-experiment whose purpose is to strengthen the
capacity of the national gove rnment by simultaneously strengthening the powers
of ordinary people is not a call for a fundamental reconstruction of the Union
born out of a desperate attempt to limit the capacity of the national
government by restricting the powers of the people. Nor does it make sense to
include Ackerman among those anti-governmentalists who worship spontaneity and
amateurism. Ackerman, after all, is a law professor at an elite university
whose ideas on this subject are dense and cumbersome. His political instincts m
ay be populist, but surely populism ends where arcane theory begins.
And wills has more business at Yale. He also dwells on the ideas of Akhil Reed
Amar, citing him as a supporter of jury nullification. Amar, like Ackerman, is
a romantic who wants to strengthen those occasions when "the people" take power
into their own ha nds. And he believes that the Constitution gives them the
opportunity to do so not only through the ballot box, but through the cartridge
box and the jury box as well. Jury nullification, Amar writes, "represents a
vision of popular sovereignty--the trium ph of community values over
overreaching governmental officials." Such statements do indeed resonate with
an old American mistrust in government, so one can understand why Wills is
tempted to include Amar in his bestiary.
The trouble is that there really are jury nullificationists in American law
schools, and Amar is among the more moderate of them. Amar himself does not
discuss the ideas of Paul Butler, the law professor who has written in defense
of the notion that black jurors should acquit black defendants whenever
possible, on the grounds that the criminal justice system is irredeemably
stained with racism. But Amar provides enough of an argument to make clear why
he would disagree with Butler. Amar is a democrat, and he recognizes that laws
which have popular support ought not to be ignored by twelve people merely
because they do not like the law, including those laws--which are often very
popular--that black Americans may find especially directed against them. That
is why he thinks the O. J. Simpson jury was wrong to listen to Johnnie
Cochran's argument that they ought to send a message. It is the job of
legislatures to send such a message. Yet the jurors of Oliver North or Bernard
Goetz were right to dismiss charge s because in those cases they became active
citizens, interpreting the context of the application of the law as good
citizens should interpret it.
Wills is correct to criticize Amar's attempts to make such distinctions, for it
is not always possible to know the motives of jurors. Still, this is not the
criticism that really matters. Amar's reasons for believing that the Simpson
jury acted improperly in substituting their own views for the views of the
people suggests that radical democrats trust government too much, not too
little. In The Cost of Rights, Cass Sunstein and Stephen Holmes recently argued
convincingly that the protection of rights requ ires strong governmental
authority. If this is so, then the greater the extent to which Amar wants to
see rights extended--even rights to a "lunch box," typical welfare state
policies, that would add to the other boxes that he discusses--the greater the
d egree to which he becomes a defender of the state. Popular government is
still government.
Timothy McVeigh is undoubtedly an insurrectionist. But is Sanford Levinson?
Levinson, a law professor at the University of Texas, is--along with Amar and
others--classified by Wills as an "academic insurrectionist." This is because
Levinson is one of the most articulate advocates of the idea that the Second
Amendment really means what it says: it gives American citizens the right to
keep and bear arms. On the substance of this argument, I find myself, again, on
Wills's side; he is right, I believe, to cri ticize Levinson for attending too
much to the more romantic rhetoric of eighteenth-century political debate and
too little to the practical, state-building side. Yet calling Levinson an
insurrectionist is wildly off the mark. He is an eclectic and complex legal
scholar who follows arguments in unexpected directions. That this has led him
to a position that overlaps at points with the rhetoric of the National Rifle
Association does not make him a comrade of Charlton Heston and Wayne LaPierre.
Wills ends his book by arguing that government is a necessary good; but he has
a reason of his own. Liberals admire government because it is viewed as
essential for achieving predetermined ends, while conservatives distrust
government because they view it as invasive of individual freedom. Wills wants
to change the nature of that debate.
In his critical discussion of the constitutional myths associated with the anti-
government cause, Wills argues rightly that James Madison's underlying
philosophy of government was Kantian. When Madison famously wrote that "if men
were angels, no governmen t would be necessary," he meant that if human beings
were not by nature driven toward faction, they would not require a mechanism to
expand their horizons. It is because they tend to be parochial that they need
government to become cosmopolitan. The best thing to be said about government
is that it shows us a larger world that, under the influence of our passions,
we would otherwise be disinclined to see.
For that reason, government, in Wills's account, is not all that different from
religion, since, for those who believe in God, the realm of the supernatural
offers them a similar vision of an expanded horizon beyond the mundane concerns
of everyday life. One need not be a religious thinker, according to Wills, to
appreciate this truth. David Hume, a notorious skeptic, believed that society
brings about a realm of affection and benevolence that stands in sharp contrast
to solitude and withdrawal.
It is a bit much, I think, to argue, as Wills does, that for Hume "the state
makes love itself possible." One may make the case, as Wills also does, for
Augustine; but it is a long road from the Confessions to compulsory seat belt
laws, and Wills is wrong , and a little perverse, to travel down it. "Would it
be going too far," he asks, "to say that rules of the road foster the social
affections that Hume and St. Augustine spoke of?" Yes, I think it would. As
much as one might appreciate Wills's attempt to move beyond stale debates over
government, turning to theology is not the way to go. A government that found
itself in the transcendental business of saving souls would be a government
that reached well beyond the limits on its power that were rightly wri tten
into the Constitution of the United States.
Wills himself offers one reason to fear his own thought-experiment. Early in
his book, when he introduces the basic sets of values that differentiate the
anti-governmentalists from their opponents, he includes religious ones among
the former. Like many of Wills's categories, this is not fully persuasive:
Jefferson, a Deist at best, was also capable of extreme anti-governmental
mutterings, while American Catholics--surely among the most religious of
Americans--have usually been advocates of a strong state. Still, if Wills
believes in his own categories, it is odd that he would stand his case for
government on ground usually claimed by opponents of government. Wills writes
of the "blessings of government." In so doing, he runs the risk of asking too
much fr om it, which can only result in greater disappointment if government
fails to deliver.
Wills is on much stronger ground when he writes that "government plays a
limited role in human activity, and it should have the aspects suited to its
limits," an appropriate enough warning against his own Augustinianism. That is
why we are better off talk ing of benefits than blessings. Government, in a
democracy, is the best way to achieve the relatively mundane goals we require
as a collectivity while keeping the invasions of our individual rights to a
minimum.
Even when it is formulated in minimalist terms, the case for government will
almost certainly fail to persuade those whose attacks on government seem to
define their very purpose for being. I know of no other country in which a
proposal to pay the nation' s chief executive a somewhat higher salary--but one
still far below the compensation of heads of organizations far smaller and less
momentous--arouses so much passionate opposition. While no one has offered a
satisfactory explanation of why anti-governmen tal ideas are so powerful in
America, there is a cause that has not been considered. It is that the power of
the anti-governmental tradition in America is owed to the fact that, in
America, government works.
If the National Rifle Association did not believe that government could, if it
really wanted to, ban hand guns, it would not need to spend millions lobbying
against the prospect. Every time that government actually produces a benefit
for some, it arouses the ire of others. It makes perfect sense, then, that the
astonishing success of government in the twentieth century would be accompanied
by the spread of an anti-governmental ideology.
Anti-governmental forces have often been the losing forces in American history,
which is another reason to question Wills's efforts to find the descendants of
Calhoun in the law schools. All those nullifiers and withdrawers would be
perfectly happy with g overnment if it were their government. Anti-
governmentalists claim to speak for freedom and spontaneity, but they are
usually incipient authoritarians, their fury directed not at the fact that
order is imposed on the world, but on the fact that others bes ides themselves
are imposing the order. They are merely bad losers, and it is out of resentment
that they try to bring the whole thing down.
Even powerless anti-government ideologues can be dangerous, for their very
rejection of the political world around them breeds the particular kind of
irresponsibility associated with back-seat driving. Wills is right to take them
seriously, for they not o nly kill people, they also poison the atmosphere of
civic life. As he suggests, we cannot love our country and hate its only
significant manifestation. Yet we also need to remember that in our politics,
as in our Westerns, there are always winners and los ers; and we are fortunate
that the bad guys have lost most of the time.
(Copyright 1999, The New Republic)
{{<End>}}
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