On Our Post-Constitutional Moment, Pt. 2
This is the second post in a series of posts on Russell Vought’s programmatic (2022) essay “Renewing American Purpose: Statesmanship in a post-Constitutional moment,” The American Mind. (The first was here yesterday.) Yesterday, I focused on Vought’s diagnosis of the failures of Trump 1, and I explored some of the intellectual roots of the framework he proposes to take up in — as one may surmise from what is unfolding already — in Trump 2.
Vought’s stance is broadly (but not uniquely) Machiavellian in the sense of James Burnham.* Vought proposes a “return to the original Constitution,” but not in the familiar textualist’s sense of originalism, but toward recapturing the inner “logic” of the document. This entails for Vought (and this was not in yesterday’s analysis) that one has to figure out — inter alia — how the Founders “would have responded in modern situations to the encroachments of other branches.”
Let’s leave aside my three reasons (that I articulated yesterday) for suggesting that there are quite a few obstacles and trade-offs/costs to re-establishing the original constitution that are wholly distinct from the political aims of progressivism or the protection of individual/minority rights. It’s also pretty obvious that establishing the relevant counterfactual of how the Founders would have responded involves non-trivial judgment and complex analogical reasoning. (Anyone familiar with Islamic jurisprudence on how to apply hadith to the present circumstances will recognize the point.) I suspect that’s a feature and not a bug of Vought’s position because it opens the door to a kind of decisionism that runs through the piece, where the aim is to provide “an ark for those exercising courageous leadership”—notice also the emphasis on “Statesmanship.”
First, let’s take a closer look on what the return to the logic of the original constitution — this is called “Radical Constitutionalism” — entails. And as always I will take the position at face value and, where I am critical, I aim to do so with arguments that stick relatively close to Vought’s Machiavellianism.
So, the logic of the original constitution is understood as one of permanent organized conflict, which prevents the unification of power, and, thereby, secure freedoms and way of life. This is very characteristic of Machiavellianism (in Burnham’s sense). And it should be granted, at once, that this is a very distinct approach from the technocratic Hayekianism which is (not implausibly) the status quo that Vought is rejecting.
A few general thoughts on this: first, notice that the conflict is internalized in the governmental structure. It need not represent a conflict in society or the populace. In fact, with the possible exception of unelected judges, the agents in this organized conflict often represent the very same population (or same partially overlapping populations).
This gets me to my second point: Burnham’s model of permanent organized conflict is different from Vought’s radical constitutionalism. The most important difference is that for Burnham this permanent conflict is really between agents/associations that represent or stand-in for major social forces. So, Burnham really anticipates (recall here; and here) a countervailing social powers model familiar from (the pro-market) Ordoliberals and (market-skeptical) Galbraith.
And, more important for our present purposes, for Vought the character of conflict is really nearly exclusively located at the level of political elites. But without a specific role for party competition (which cuts across some of the horizontal and vertical spaces he envisions). It’s not that Vought fails to recognize the significance of party because one of the examples he gives of such conflict (within and between two branches) involves party division.
Third, not unlike Burnham, the way Vought conceptualizes freedom (under-theorized as it is) is not in terms of protection of individual rights. That is, for him freedom is not a juridical notion at all. Rather (if we reflect on his reliance on Madison’s notion of tyranny), for him freedom is rule by many (relying on the idea that “same hands” captures both rule by one and rule by a few).
Fourth, the rights that are protected by this organized conflict are the rights of office and government institution as enumerated by the constitution (but not precedent). Interestingly enough, how a branch or (say) a coalition of states generates healthy fear in others is no simple matter. And this is clearly undertheorized. Here’s the example he provides:
Before I comment on this fascinating passage, one of the main points of radical constitutionalism is to undo the cumulative effect of judicial review and the way precedent shapes the functioning of (what I have called a technocratic Hayekianism characteristic of the) status quo. So, while Marshall’s intelligence is clearly respected, the hero or exemplar worth emulating is Jefferson.
I find Jefferson an odd hero here because Jefferson was distinctly reserved about the role of the presidency (quite rightly comparing it to an elective monarchy). In his famous letter to William Smith, Jefferson write, “what we have lately read in the history of Holland, in the chapter on the Stadtholder, would have sufficed to set me against a Chief magistrate eligible for a long duration, if I had ever been disposed towards one.” The role is also odd because in America’s self-mythology (before he was discredited by renewed attention to his role in slavery), Jefferson is really the partisan of agrarian self-governing peoples (not organized elite conflict).
Be that as it may, what’s left wholly unclear is how branches other than an energetic presidency can generate the right sort of fear in the other branches and levels of government, and especially when officers in these branches and the citizens can’t count on the judicial branch to lend a hand and protect their rights as such in the face of an expansive executive. This is clearly a feature of Vought’s approach because he wants to create space for “an energetic president with the power to bend the executive branch to the will of the American people.” Unfortunately, this last point tilts the whole scheme toward (what echoing Constant I have been calling) Bonapartism because the authoritative interpreter of the will of the American people will — unless opposed by a majoritarian Congress of another party — be the presidency itself.
What’s really attractive about Vought’s approach is that politics and political conflict returns center stage. And because the conflict is, as it were, delegated to political elites there need not be major risks for the system to implode again (recall yesterday’s post). This also opens the door to the pursuit of political projects that have hitherto been smothered by the two-party (broad coalition) system and technocratic Hayekianism: one could imagine, say, a dynamic environmentalist, socialist, or feminist capturing the presidency on this model and not to be hemmed in, in advance, by the administrative state and precedent.
But it is also clear that Vought’s system only works as envisioned (as a system that can preserve freedom) if an opposing party has a strong majority in Congress that is willing to re-discover the power of the purse to inspire a healthy fear in the Executive and a Congress that finds a way to enlist the courts to enlist it in its “titanic struggle” with the Executive. It is not at all obvious that absent respect for judicial review and precedent, the titanic struggle isn’t one-sided (given the material power available to the President).
This criticism is very indirectly conceded by Vought. For, radical constitutionalism is not ultimately a governing philosophy. In the closing paragraph Vought writes that his fellow-travelers should cast themselves “as dissidents of the current regime and to put on our shoulders the full weight of envisioning, articulating, and defending what a Radical Constitutionalism requires in the late hour that our country finds itself in, and then to do it.” It is really a tool to organize opposition to technocratic Hayekianism. Lurking here is a kind of providential faith (recall that ‘ark’) that doing Radical Constitutionalism once in power will itself generate the freedom preserving titanic struggle.
To be continued.
*In my first post I mentioned the added influence of ideas emanating from Bagehot. As the use of ‘ark’ indicates there may be a Christian/providential influence, too, or at least a willingness to deploy Christian mythology (in Sorel’s sense).