Right

A Challenge From the Right:

There have been two pieces recently charging that the American Right, and particularly the Republican party, is splitting. The first of these was Jonathan Rauch's, "America's Anti-Reagan isn't Hillary Clinton, It's Rick Santorum." The second is in today's Opinion Journal, where Cass Sunstein has a piece called "John Roberts, Minimalist."

Now, I'm a Southern Democrat, which is to say that I have no obvious home in the politics of modern America. I'm a Classical Liberal rather than a conservative, and a Democrat of a very old type rather than a Republican of the modern strain. Still, most people would locate me on the Right, and I suppose that qualifies me to consider the topic.

Rauch posits a divide between conservatives who believe in the modern concept of Freedom, versus those who believe in the original American concept of Liberty. As he writes:

In Santorum's view, freedom is not the same as liberty. Or, to put it differently, there are two kinds of freedom. One is "no-fault freedom," individual autonomy uncoupled from any larger purpose: "freedom to choose, irrespective of the choice." This, he says, is "the liberal definition of freedom," and it is the one that has taken over in the culture and been imposed on the country by the courts.

Quite different is "the conservative view of freedom," "the liberty our Founders understood." This is "freedom coupled with the responsibility to something bigger or higher than the self." True liberty is freedom in the service of virtue -- not "the freedom to be as selfish as I want to be," or "the freedom to be left alone," but "the freedom to attend to one's duties -- duties to God, to family, and to neighbors."

The Sunstein piece suggests that there is a similar divide between the judicial/legal thinkers on the right:

Minimalist conservatives insist that social change should occur through the democratic process, not through the judiciary. They do not want to extend the liberal Supreme Court decisions of the 1950s and '60s. On principle, they prefer narrow decisions and small steps, nudges not earthquakes. When confronted by contentious issues, minimalists focus on details and particulars, and are prepared to rule in ways that run contrary to their politics.

Fundamentalist conservatives do not believe in small steps. They think that in the last 50 years, constitutional law has gone badly, even wildly, wrong. They want to reorient it in major ways. They oppose Roe v. Wade, of course. But they also reject the right of privacy itself, arguing it lacks roots in the Constitution. They do not hesitate to use judicial power to strike down affirmative action and to protect property rights. They are entirely prepared to restrict the authority of Congress by invalidating laws protecting the environment, campaign finance reforms or gun control restrictions. They also have an expansive view of presidential power.

In many areas, then, fundamentalists welcome a highly activist role for the federal courts. Consider a remarkable fact: Since 1995, the Rehnquist Court has struck down over 30 acts of Congress, including parts of the Violence Against Women Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. Fundamentalist conservatives generally approve of these decisions, and would like to see more of the same.

I've been thinking about these splits and/or divisions, and the truth is, I don't think they'll turn out to be very serious. The simple reason I feel that way is this: I can't see any path that works except the road between them.

In the case of the first split: Sure. Liberty is meant to be put in the service of virtue. And it's very important to make that argument. Aristotle pointed to happiness as the point of ethics; but he defined happiness as "Rational activity in accord with excellence or virtue." That's an ancient, correct understanding for how life ought to be lived.

On the other hand, there's no way to have a free society in which you dictate what excellence or virtue means. People who aren't free to decide that aren't free at all.

So, there's no way forward except persuasion. Santorum's crowd is right this far: you have to be making the argument that people should use their liberty in pursuit of duty and virtue. You shouldn't leave that unsaid. But they are wrong to any degree that they think that it can be dictated or legislated. If it isn't freely chosen, it isn't free; and Americans in general will rebel against anything you try to shove down their throats.

You end up having to take both sides, which is to say that you choose the road between. You have to argue for virtue and also you have to argue for your particular conception of virtue. You can't use the government to enforce either.

As for the judicial philosophy, it looks the same to me. Should you take the path of moderation, respecting the decisions of the democratic branches? Yes, of course -- as long as they can point to the part of the Constitution where they get the authority to do what they are doing. If they can do that, the courts should stand aside. The attempt to find judicial solutions for problems yields the necessity of finding judicial solutions to every problem, which is more weight than the courts can bear.

On the other hand, if a decision or a law is plainly unconstitutional, you should always overturn it. Otherwise, what's the point of the Constitution? It's not a book of suggestions.

So, am I in favor of liberty or freedom? Yes.

Am I in favor of minimalism? Yes. Of fundamentalism? Yes.

And I guess I'm opposed to them all, too.