The Conservative Sensibility

It did not have to turn out as it did. The antecedent of the pronoun could be almost anything, but in this case it was a battle that is an exhilarating illustration of contingency in history.

In the American Revolutionary War, the fate of a continent, and of an idea, was at stake in a protracted conflict involving military forces that were, compared to those of the Napoleonic wars in Europe less than a generation later, astonishingly small. The war was won, in large measure, through the skillful maneuvering, which often meant retreating, by George Washington, who lost most of the not very numerous battles in which he directly engaged British forces. One of the battles he won might, if he had lost it, have ended the war and the Revolution.

The Battle of Princeton is often, but mistakenly, considered a mere lagging episode—a minor echo—of the Battle of Trenton. It was more than this, and for the purpose of this book it is a suitable subject with which to begin because the subsequent chapters are, among other things, an argument against the temptation of historicism—the belief that the unfolding of events is an autonomous process with its own laws and logic. The Battle of Princeton is an invigorating illustration of the history-making role of individual agency. It occurred less than two miles from Princeton University's Nassau Hall. You can stroll across the battlefield in fewer than half the number of minutes—forty-five—that the fight is estimated to have lasted. As a historic site, it is shamefully neglected. As a historic event, the January 3, 1777, Battle of Princeton is astonishingly underestimated. It was one of the most consequential battles in world history because of what did not happen but easily could have. In it, the American Revolution, and the hope for a republic based on natural rights that limit government, survived a near-death experience.

The Battle of Princeton was a small skirmish in an eight-year war in which only 25,000 Americans died. This was, however, 1 percent of the new nation's population, making the Revolutionary War second only to the Civil War in its lethality. In December 1776 the revolution was failing. Britain had dispatched to America 36,000 troops—at that point, the largest European expeditionary force ever—hoping to crush the rebellion quickly and forestall a French intervention on behalf of the Americans. General George Washington had been driven from Brooklyn Heights, then from Manhattan, then out of New York. The nation, whose independent existence had been proclaimed just five months earlier, barely existed as he retreated across New Jersey and into Pennsylvania. From there, however, on Christmas night, he crossed the Delaware River ice floes for a successful forty-five-minute battle with Britain's Hessian mercenaries at Trenton. This was Washington's first victory; he had not been at Lexington, Concord, or Bunker Hill. Trenton would, however, have been an evanescent triumph, were it not for what happened ten days later.

On January 2, 1777, British General Charles Cornwallis began marching 5,500 troops from Princeton to attack Washington's slightly outnumbered forces, which Cornwallis hoped to pin down with their backs to the Delaware. Washington, leaving a few hundred soldiers to tend fires that tricked Cornwallis into thinking that the entire patriot army was encamped, made a stealthy fourteen-mile night march to attack three British regiments remaining at Princeton. The opposing forces collided shortly after dawn.

The most lethal weapons in this war were bayonets. The British had them; few Americans did. The Americans beat a panicked retreat from the advancing steel. By the example of his personal bravery, Washington reversed the retreat and led a charge that saved a nation. Serving Washington there was a fellow Virginian, a future Washington biographer and chief justice of the Supreme Court, John Marshall. So, in that small contested field that day were the two men most important in making the infant republic into a nation. When the redcoats ran, the British aura of invincibility and the strategy of "securing territory and handing out pardons" were shattered.1 And the drift of American opinion toward defeatism was halted. The patriots' blood that puddled on frozen ground that twenty-degree morning bought the birth of American freedom. The British historian George M. Trevelyan wrote of Trenton: "It may be doubted whether so small a number of men ever employed so short a space of time with greater and more lasting effects upon the history of the world."2 But this would not have been the judgment of any historian if Washington had not prevailed at Princeton.

The British retreated into Princeton, where some took refuge in Nassau Hall. Of the three cannonballs that American soldiers fired at Nassau Hall, one missed, one bounced off the south wall, leaving a pockmark that is still visible, and the third supposedly sailed through a window and neatly removed the head from a portrait of King George II. It is said that the artillery was commanded by a Washington aide named Alexander Hamilton. It is altogether appropriate that Nassau Hall, which at the time was the largest building in New Jersey and the largest academic building in the nation, was, so to speak, present at this moment in the nation's creation. In that building James Madison, who was to become the nation's fourth president, had lived and studied, and Woodrow Wilson, who was to become the twenty-eighth president, would begin his ascent to national prominence from his Nassau Hall office as president of Princeton University.

This book is about American political thought, which today is, to a remarkable extent, an argument between Madisonians and Wilsonians. My subject is American conservatism. My conviction is that, properly understood, conservatism is the Madisonian persuasion. And my melancholy belief is that Woodrow Wilson was the most important single figure in the largely successful campaign to convince the nation that the Madisonian persuasion is an anachronism. This book is not an exercise in exegesis. It is not a systematic study of the origins and development of either man's thought. There are many such studies, many of them excellent. Rather, my purpose is to show how the nature and stakes of today's political arguments can best be understood by placing the arguments in the context of a debate now more than a century old. It is reassuring as well as clarifying to trace the pedigree of today's arguments to long-standing American disagreements between large figures of impressive learning. We can dignify our present disputes among small persons of little learning by connecting them with great debates about fundamental things.

Princeton, 1964

There is a braided relationship between a person's political philosophy and his or her sensibility, meaning a proclivity for seeing and experiencing the passage of time and the tumult of events in a particular way. Which comes first? Perhaps, in most cases, neither; they evolve entwined and are mutually reinforcing. A sensibility is more than an attitude but less than an agenda, less than a pragmatic response to the challenge of comprehensively reforming society in general. The conservative sensibility, especially, is best defined by its reasoning about concrete matters in particular societies. The American conservative sensibility, as explained in this volume, is a perpetually unfolding response to real situations that require statesmanship—the application of general principles to untidy realities. Conservatism does not float above all times and places. The conservative sensibility is relevant to all times and places, but it is lived and revealed locally, in the conversation of a specific polity. The American conservative sensibility is situated here; it is a national expression of reasoning, revealed in practices.

Charles de Gaulle began his war memoirs with a justly famous sentence whose power derives from its simplicity: "All my life I have thought of France in a certain way."3 The way people think about their country can be difficult to distill into sentences. But Americans' feelings are, to some degree, and often at a subliminal level, connected to ideas that were present at the country's creation. This book is an explanation of how I think about America. And the book is about why I think doing so is conducive to national flourishing and personal happiness, the pursuit of which is, after all, the point of American politics.

This book's primary purpose is not to tell readers what to think about this or that particular problem or policy. Rather, the purpose is to suggest how to think about the enduring questions concerning the proper scope and actual competence of government. This book is an exercise in intellectual archeology, an excavation to reveal the Republic's foundations, intellectual and institutional, which have been buried beneath different assumptions and policies. My belief is that by this retrieval something quite beautiful can be revealed and put to practical use. Apologetics are writings that offer reasons, particularly to nonbelievers, for believing what the writer does. This book is my unapologetic presentation to unbelievers, who are a majority of contemporary Americans, of reasons why they should recur to the wisdom of the nation's founding.

Conservatism is about the conservation of that wisdom, or it is nothing of much lasting significance. The proper question for conservatives is: What do you seek to conserve? The proper answer is concise but deceptively simple: We seek to conserve the American Founding. What, however, does it mean to conserve an event—or, more precisely, a congeries of events—that occurred almost 250 years ago? This book is my attempt to answer that question by showing the continuing pertinence of the Founding principles, and by tracing many of our myriad discontents to departures from those principles.

I have been thinking about this since arriving at Princeton University's Graduate School in 1964 to begin earning a doctoral degree in political philosophy. The Graduate School is located on a small hill a fifteen-minute walk from Nassau Hall. The fact that the school is there is a matter of historic importance.

The university counts James Madison as its first graduate student because, although he graduated with the class of 1771, he remained there for a year to study Hebrew with the university's president, John Witherspoon. The school was formally established in 1900, but its permanent location had not yet been decided upon when Woodrow Wilson became the university's president in 1902. His restless, reforming spirit did much to propel the university to greatness—and to irritate portions of the university's faculty, trustees, and alumni. Many of the changes he drove forward, changes concerning academics and student life, were more important than the question of where to locate the Graduate School. But this matter, coming after a long train of acrimonious skirmishes, became decisive. Wilson wanted the Graduate School integrated into the main campus. He was given to investing his preoccupations with immense significance, so he said: "Will America tolerate the seclusion of graduate students? Will America tolerate the idea of having graduate students set apart?"4 Actually, America was not all that fascinated by this campus dust-up. Perhaps it should have been.

Wilson's nemesis was Andrew Fleming West, the dean of the Graduate School from 1901 to 1928. West's statue graces the school where it now is, where West wanted it to be. Defeat provoked Wilson to resign in 1910. He immediately entered politics and was elected governor of New Jersey that November. We Madisonians rarely regret the defeats that Wilson suffered. We do, however, wonder whether subsequent American history might have been different, and better, if he had got his way concerning the location of the Graduate School and hence had remained in the president's rooms in Nassau Hall, instead of rapidly rising to the nation's capital.

From June until November 1783, the town of Princeton was the capital of the United States. The national government, such as it feebly was, had decamped from Philadelphia to seek refuge from restive American soldiers who were unhappy about the government, which, unable to levy taxes, was unable to pay them. The Continental Congress met in Nassau Hall, where it received General George Washington after the British surrender at Yorktown. It is therefore satisfying that Nassau Hall can be considered the symbolic epicenter of American political philosophy. In the era of revolutionary ferment, the building was, among other things, a dormitory housing James Madison, who would be the most creative participant in the process that produced the Constitution that produced a national government without the infirmities that drove the previous government to shelter in Princeton. By 1902, Nassau Hall contained the university's administrative offices, including those of the new president, Woodrow Wilson, who would become the first president of the United States to criticize Madison's constitutional architecture. The sixteenth president would vindicate this architecture while saving it from destruction.

I was born and raised in central Illinois, and although I have not lived in the state since leaving for college in 1958, four months after my seventeenth birthday, I remain a Midwesterner, marinated in the spirit and lore of Abraham Lincoln. It was at Princeton's Graduate School that I began the thinking that has culminated in the writing of this book, which in a sense began with my doctoral dissertation, half a century ago.

"BEYOND THE REACH OF MAJORITIES"

My home was in Champaign, which is cheek-by-jowl with Urbana, where sits Champaign County's red sandstone courthouse, built in 1849. When Abraham Lincoln was a circuit-riding lawyer from Springfield, he had cases that brought him to Urbana, and he was, according to local lore, in the courthouse when he learned of the passage of the Kansas-Nebraska Act. Lincoln's rise to greatness began with his recoil against this act that, by repealing the Missouri Compromise of 1820, lit the fuse that led to the Civil War. The Compromise had forbidden slavery in the Louisiana Territory north of a line that included the Kansas and Nebraska territories. The Kansas-Nebraska Act, introduced by Illinois senator Stephen A. Douglas, empowered the residents of those two territories to decide whether or not to have the institution of slavery. The act's premise was that the principle of "popular sovereignty" is the distilled essence of democracy, and that therefore giving maximum scope to the principle of majority rule is the essential point of the American project. Lincoln disagreed.

He responded to the act with a controlled, canny, patient but implacable vehemence. So, the most luminous career in the history of American democracy, the most morally edifying career in the history of world politics, took its bearings from the principle that there is more to the American purpose, and more to justice, than majorities having their way. If justice is what Thrasymachus said it was in his debate with Socrates in Book I of Plato's Republic—if justice is the interest of the strong—then two conclusions follow. One is that Douglas was right in arguing that justice regarding slavery in the territories was whatever pleased the strongest faction—a majority—in the territories. The other conclusion is that in a democracy, the crucial machinery of justice is the adding machine—that justice is known, simply and decisively, when votes are tabulated. Lincoln knew better.

Fifty years ago I submitted to the politics department of Princeton University a doctoral dissertation titled "Beyond the Reach of Majorities: Closed Questions in an Open Society." The title came from the Supreme Court's 1943 opinion in West Virginia v. Barnette, the second of the flag salute cases involving public school children who were Jehovah's Witnesses. As told by Noah Feldman, the two cases, which culminated in one of the most striking reversals by the court in its history, began on an October morning in 1935 in Minersville, Pennsylvania, when William Gobitas (the Supreme Court misspelled the family's name as Gobitis), a ten-year-old fifth grader, refused to salute the flag during the Pledge of Allegiance. "The teacher," Feldman writes, "tried to force his arm up, but William held on to his pocket and successfully resisted." The next day his sister Lillian, eleven, a seventh grader, also refused to salute the flag, explaining to her teacher, "The Bible says at Exodus chapter 20 that we can't have any other gods before Jehovah God."5

At that time, Feldman explains, the flag salute, as Americans gave it, "closely resembled the straight-arm Nazi salute, except that the palm was to be turned upward, not down."6 A national leader of the Jehovah's Witnesses had recently given a speech denouncing the Nazi salute, and several Witnesses' children around the country had come to the same conclusion that Lillian explained to her teacher: Saluting the flag was idolatry. Lillian and William were shunned at school, the Gobitas family grocery store was threatened with violence and boycotted, the school district changed saluting the flag from a custom to a legal duty, and the Gobitas children were expelled from school.

Their case wended its way to the Supreme Court as war clouds lowered over the world, a context, Feldman notes, that was not favorable to the Witnesses. They were pacifists, had opposed US participation in World War I and were opposing any US involvement in any war in Europe. In June 1940, just days after Nazi troops marched into Paris, the court ruled 8–1 that the school district had the power to make saluting the flag mandatory. The opinion for the court was written by Justice Felix Frankfurter, a former member of the national committee of the American Civil Liberties Union. He was Jewish and had been born in Austria, which the Nazis had occupied in 1938. As a Jew, he was anxious to avoid practices that allowed schoolchildren to be treated differently because of their religion. The case Minersville v. Gobitis dealt, he said, "with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security."7 He said his personal opinion was that the school board should allow the Witnesses' children their dissent. He was, however, as most political progressives had been for many decades, an advocate of judicial restraint, and he thought the court should acknowledge that the elected school board had made a defensible, meaning reasonable, choice expressing the will of a majority of its constituents. To put the point in judicial language that would become familiar in subsequent decades, the school board's policy passed the "rational basis" test.

The eight members of the court's majority had all been nominated by President Franklin Roosevelt, whose anger with the court's refusal to be deferential toward Congress' enactment of New Deal legislation led to his ill-fated attempt to "pack" the court. The lone dissenter in Gobitis was Harlan Fiske Stone, who had been appointed by President Calvin Coolidge. Minersville's flag salute law, wrote Stone, was "unique in the history of Anglo-American legislation" because it forced the children "to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions." So, deference to the school board's legislative judgment amounted to "the surrender of the constitutional protection of the liberty of small minorities to the popular will."8 As Feldman says, "In 1940, the idea that the Court should protect minorities from the majority was not the commonplace it would later become. Stone had first introduced it in 1937, burying it in a footnote."9 Indeed, this became the most famous and consequential footnote in the court's history, one we shall consider in Chapter 4.

Taking their cue from the court's decision, many communities made flag saluting mandatory. There was an upsurge of violence against Witnesses, including that by a mob of 2,500 who burned down the Witnesses' Kingdom Hall in Kennebunk, Maine. In 1943, however, with a world war raging, the court agreed to hear another flag salute case concerning Jehovah's Witnesses, for the purpose of overturning the decision it had reached just thirty-six months earlier. Writing for the majority in a 6–3 decision, Justice Robert Jackson, who had not been on the court when Gobitis was decided, said: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.…Fundamental rights may not be submitted to vote; they depend on the outcome of no elections."10

First as a graduate student, then briefly as a professor of political philosophy, and now for five decades as a Washington observer of American politics and governance, I have been thinking about the many vexing issues implicated in these two flag salute cases. The issues include the source of American rights, the nature of the Constitution and the role of the Supreme Court in construing it, and what fidelity to democracy does and does not require regarding the rights of majorities. There is, I believe a coherent philosophy that provides intellectually satisfying and politically prudent answers to these and other questions. It is American conservatism, rightly understood.

Such American conservatism takes its bearings from the American Founding, properly understood. William James called philosophy "a peculiarly stubborn effort to think clearly."11 My effort is to explain three things: the Founders' philosophy, the philosophy that the progressives formulated explicitly as a refutation of the Founders, and the superiority of the former. An explanation of terminology is helpful here. Although it distresses some American conservatives to be told this, American conservatism has little in common with European conservatism, which is descended from, and often is still tainted by, throne-and-altar, blood-and-soil nostalgia, irrationality, and tribalism. American conservatism has a clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders' thinking. The price of accuracy might by confusion, but this point must be made: American conservatives are the custodians of the classical liberal tradition.

In the Anglophone world, this tradition began with Thomas Hobbes and John Locke, in the context of authoritarian governments that ruled confessional states, those with established churches. Liberalism acquired its name, and became conscious of itself, in the eighteenth and nineteenth centuries, when liberty was threatened by the forces of order—by institutions and instruments of the state, often operating in conjunction with ecclesiastical authorities. Liberalism championed individualism and the rights of the individual against those forces of enforced order. The label "liberal" was minted to identify those whose primary concern was not the protection of community solidarity or traditional hierarchies, but rather was the expansion and protection of individual liberty. Liberals were then those who considered the state the primary threat to this. Liberals espoused the exercise of natural rights within a spacious zone of personal sovereignty guaranteed by governments instituted to serve as guarantors of those rights. Today, when the French describe—disparage, really—Margaret Thatcher's kind of free market doctrines as "neo-liberalism" their terminology is not mistaken. For many years now, American conservatism has been the strongest contemporary echo of this liberalism in the trans-Atlantic world.