Greg Weiner is the Provost at Assumption College and a regular contributor with The Constitutionalist. For more of Weiner’s work, visit our regular contributor’s page.
In the summer of 1793, as the Reign of Terror shifted into high gear, Maximellien Robespierre declared what his biographer, Ruth Scurr, calls “a personal revolutionary catechism.” In the catechetical style, it opened with a question and answer: “What is our aim? It is the use of the constitution for the benefit of the people.” That “use” was pregnant with both meaning and blood. It indicated Robespierre’s belief that “the benefit of the people” superseded the constitution, which was only an instrument for that aim. Within roughly a year, more than 16,500 head were sacrificed to the guillotine on that principle, ending when Robespierre laid his neck on the scaffold in July 1794.
In 2020, as conservatism seeks to recover its bearings, it needs to resist the nostalgic delusion that what it seeks to conserve is a past that no longer exists, whether one’s romantic ideal is Thomas Jefferson’s yeoman farmer or Donald Trump’s Leave it to Beaver portrait of the suburban promised land. Conservatism should focus on its underlying principle of conservation. For Burke, the difference between conserving reform and revolutionary upheaval lay in the fact that reform sought to reanimate enduring principles while revolution pursued new ones.
The United States resisted the blood gushing in France at exactly the time the fledgling constitutional regime was laying groundwork for its stability. The reason was its emphasis on process over ends. That principle is under assault from both extremes, which are conducting a pincer movement on the constitutional center by subjugating its steady processes to overriding goals. The fact that the goals differ is incidental to the emerging consensus that they are more important than the process.
On the right, this has taken the form of a gauzy nostalgia for an era of supposed American greatness that was never defined with any precision. The most important word in the slogan “Make America Great Again” was not “great.” It was “again.” The Trump right has never acknowledged that the greatness of America, if defined by liberty, does not yield rationally predictable ends precisely because it does not seek to define them.
Last summer, against the backdrop of Mount Rushmore, Trump made a controversial speech in which most of what was condemned was unobjectionable yet what ought to have been his most troubling remark was largely overlooked: “American freedom exists for American greatness.” That “for,” like Robespierre’s “use,” is striking. The claim is categorically different from saying America is great because it is free. Trump declared, rather, that freedom was a vehicle for greatness, a murky quality he has almost always described in terms like “strength” and “winning.”
Similarly, Democrats are already drawing up lists of executive orders for Joe Biden to sign on his first day in office that would achieve policy goals by circumventing Congress—something to which Democrats have objected under President Trump and about which Republicans complained under President Obama. Representative Pramila Jayapal recently argued that, by some sort of constitutional alchemy, preparing executive orders for Biden would help to restore legislative authority. Congress would act, she speculated, because Biden would threaten to bypass the legislature if it did not do as he wished. This is like saying muggers help overcome inaction from pedestrians who are otherwise unreasonably attached to their wallets.
The logic prevailing on both sides of the aisle—a logic Biden, a onetime Senate institutionalist with genuine constitutional commitments, can do the nation a real service by resisting—is that each is justified in subverting processes because its substantive goals are better than those of the other. For all the talk of a tussle over the meaning of the Constitution, they have converged with respect to the fundamental political claim that substantive outcomes are more important than the process by which they are achieved.
That claim is antithetical to the concept of constitutionalism, whose basic premise is that what happens is less important than how it occurs. Drawing on the Greek word telos, meaning an “end” or “goal,” Michael Oakeshott, the conservative British philosopher, called this kind of politics “telocratic.” Its opposite was “nomocratic”—from the Greek nomos, a “law” or “rule”—meaning a politics prescribed not ends but rather rules for resolving differences.
Oakeshott explained the danger of a telocratic system. It “does not necessarily mean the absence of law. It means only that what may roughly be called ‘the rule of law’ is recognized to have no independent virtue, but to be valuable only in relations to the pursuit of the chosen ends.” Those committed to telocratic politics, Oakeshott continued, would differ about ends but not about their supremacy over rules.
Oakeshott’s warning, delivered in lectures at the London School of Economics in the late 1960s, was prophetic. The American Constitution, as well as unwritten constitutions like the norms of academic freedom that govern universities, have until recently been understood as nomocratic. Prizing ends over means started neither with Trump nor with recent debates about the boundaries of tolerable speech. What is different now is the rising consensus around ends-oriented politics. That is far more fundamental than disputes over the ends themselves.
On the right, Adrian Vermeule, a professor of constitutional law at Harvard, proposed last March that conservatives reject originalism in favor of “common-good constitutionalism,” which “should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution.”
But this is not constitutionalism at all. The Constitution does seek a common good—“the general welfare,” in the language of its preamble—but recognizes that its content is disputed. On Vermeule’s own logic, the moral content of the common good as he understands it will inevitably supersede procedural niceties for determining it.
Examples abound on the other side: Last July’s open letter in Harper’s Magazine that feared “forces of illiberalism” that “weaken our norms of open debate and toleration of differences in favor of ideological conformity” was an endorsement of norms over outcomes. A countervailing statement responded that the timing of the letter, which distracted from protests against racism, was “particularly insulting.” The suggestion was inescapable: While the response denied many of the Harper’s letter’s claims, it concluded by saying that the substantive goal of fighting racism was, in any event, more important.
In politics as in academia, the elevation of process over ends reflects the self-assurance of those confident that the strength of their arguments can prevail. That may help explain why, on both sides, the favored tactic of ends-oriented politics is the ad hominem attack. Trump puts down his critics not as substantively wrong but rather as “losers.” Critics of the Harper’s signatories spent pages deriding their wealth, racial composition and “privilege” before engaging their arguments. This is a double-sided coin, but it is the same currency of argument. One side is disqualified because it is alleged to be weak, the other because it is assumed to be strong.
The upshot of this politics is the death of democratic process as an ideal. It is an all-or-nothing, with-us-or-against-us politics that cannot, by definition, abide the animating ideal of constitutionalism. The Reign of Terror is hardly upon us. But consensus on the principles that justified it is approaching.