The Home of American Intellectual Conservatism — First Principles

July 31, 2014

JOURNAL ARCHIVE
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Willmoore Kendall and the Deliberate Sense of the Community
Mark Nugent

Kendall's belief in the necessity of society's defense of its shared basic assumptions and norms and comes to the forefront in his essay "The 'Open Society' and Its Fallacies," included in Willmoore Kendall Contra Mundum and also published in The Conservative Affirmation as "Conservatism and the 'Open Society.'" Here, Kendall attacks the doctrine John Stuart Mill announces in the essay On Liberty, that "there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered," and Karl Popper's development of this idea in The Open Society and Its Enemies.83 Kendall's concern is that the doctrine of the open society elevates freedom of speech and expression from one of the goods that a society will seek to advance to "society's ultimate standard of order."84 In such a society, all questions must be treated as open questions in public, including in public schools and universities. For example, even if all members of the society espouse a particular religion or church, in the public sphere each must nevertheless "treat all religions and churches as equal."85 The community is denied any capacity to promote any "public truth" or "orthodoxy."86 Therefore, "[t]he open society confers 'freedom' upon its members, but does so at the cost of its own freedom as a society."87

Mill's proposal, Kendall argues, rests on the "false conception" that assumes that "society is . . . a debating club devoted above all to the pursuit of truth."88 In fact, society is devoted to a number of goods, including "the living of the truth they believe themselves to embody already, and the communication of that truth . . . to further generations . . . these are preconditions to the pursuit of truth."89

In fact, a society built on Mill's precepts will fragment into increasingly bitter divisions, leading ultimately to "violence and civil war," with the community unable to impede the process by "giving preferred status to certain opinions . . . for by definition it places a premium upon dispersion by inviting irresponsible speculation and irresponsible utterance."90 The paradigmatic historical example of the open society, Kendall warns, is Weimar Germany.

Kendall contends that the Mill-Popper open society would paradoxically become intolerant towards those who disagree with its precepts. Such a society, "dedicated to a national religion of skepticism," must silence the person who "challenges the very foundations of skeptical society."91

But did America not proclaim the open society to be its founding ideal with the enactment of the First Amendment? Kendall addresses this question in the essay "The Bill of Rights and American Freedom."92 Preliminarily, Kendall notes that the Philadelphia Convention that drafted the Constitution unanimously voted down a proposal to include "a declaration or bill of the natural rights of man."93 Kendall also runs through the arguments against a Bill of Rights that were offered in The Federalist and offers additional anti–Bill-of-Rights arguments of his own.

A central question, then, is what James Madison, Federalist and chief author of the Constitution, was "up to" when he drafted the Bill of Rights and convinced his congressional colleagues to enact it.

Kendall answers by taking us through the time of the adoption of the Bill of Rights. After the ratification of the Constitution, Madison sought to bring those who opposed its passage into the consensus by enacting a bill of rights. He took as his starting point the "recommendatory amendments" set forward from the Virginia convention.94 But he stripped from them the language of natural rights, and replaces them with straightforward "rules of law."95 For example, the Virginia draft of what would become the First Amendment originally read, in part: "That the people have a right to freedom of speech, and of writing and publishing their sentiments, but the freedom of the press is one of the great bulwarks of liberty and ought not be violated."96 The passage becomes: "Congress shall make no law . . . abridging freedom of speech, or of the press." The grandiloquent declaration of an abstract right is gone, and the people, through Congress, are left to determine for themselves the particulars of the "freedom of speech" through the Constitution's deliberative process. Moreover, the specific directive to Congress leaves the abridgement of rights "as a monopoly of the State governments."97 Therefore, Madison has defused the First Amendment's potential to fundamentally alter the nature of the state that the Constitution established.

Furthermore, Kendall dismisses the possibility that Madison or his congressional colleagues contemplated that the provisions in the Bill of Rights would be enforced by the judiciary: had that been the case, the record would show debate and controversy its enactment, when in fact there was virtually none.

Kendall's final published work, The Basic Symbols of the American Political Tradition,98 is based on a series of lectures Kendall delivered in 1964, which were expanded developed as a book by its co-author, George Carey.99 In Basic Symbols, Kendall looks beyond The Federalist and the founding to trace the development of America's political society to its earliest formative stages and examines the impact of moral and religious aspiration on its governing institutions. While the Kendall of The Conservative Affirmation had placed the American founding within a Straussian template that conceived of the founding institutions as emerging from a "Great Tradition" now under attack from latter-day positivists, the Kendall of Basic Symbols analyzes the American republic in terms of Eric Voegelin's conception of the core "symbols" that express a political society's self-understanding.

To chart the development of the American political tradition, Kendall employs Voegelin's conception of symbols as the hermeneutic method by which he examines the important documents of America's development during the colonial and revolutionary periods. According to Voegelin, in order to gain a meaningful understanding of any political society, it is first necessary to study that society's self-understanding. To do so, it is critical to examine the symbols and myths by which a people represents and interprets itself. These symbols are the mechanism through which a society conceives its "place in the constitution of being and of its role in history."100 The symbols relate to each other and are sometimes in tension with one another. As a society develops and matures, its system of symbols also develops and new symbols are formed from the old through a process of differentiation.

A political community's self-understanding necessarily expresses a relationship to transcendent truth, "even if only the negative relationship of denial."101 Moreover, "[i]n Western Civilization basic symbolizations tend to be variants of the original symbolization of the Judaeo-Christian religious tradition: variants . . . of the tale according to which a founder, Moses, leads the people out of the realm of darkness, Egypt, into the desert . . . toward a Promised Land."102Kendall's project is to examine the roots of America's political tradition in light of this basic symbolization and show how it has been willfully and widely misunderstood in the years following the Civil War.

Basic Symbols is perhaps Kendall's most forthright challenge to the notion that American's founding creed is based on egalitarianism and the protection of individual rights. Kendall presents his project as a corrective to an "official literature" that grossly misapprehends the nature of the American political tradition. In doing so he also wades into the debate over the meaning and significance of the Declaration of Independence.103 This official literature holds that our political tradition begins with the Founding Fathers' drafting of the Declaration of Independence, which set forth our ideals as a nation: the equality of all men, and our possession of sacred, inalienable rights that cannot be abridged by the government.

The Declaration also, the official literature teaches us, signaled our emergence as a unified nation.104 The structure of our government was then set down in the Constitution, in which the supposed fundamental ideals of the founding were curiously absent: progressive historians would teach that its aim was to further the economic interests of the landowning class. Finally, the Bill of Rights was enacted, adding to the Constitution a commitment to equality and individual rights that Congress could not abridge, thus bringing the Constitution in line with the ideals set forth in the Declaration.

Kendall contends that this narrative, although now cherished as a national myth, was actually invented after the fact and is contradicted by the historical record. Rather, he argues, the "defining principles and practices central to the political tradition of the Founding Fathers" were "those associated with a selfgovernment by a virtuous people deliberating under God."

In order to chart the development of the American political tradition, Kendall closely examines public documents "that have at least the look of ventures in self-interpretation by a political society."105 This allows us to trace the development of our political society's symbols from the earliest settlements through the adoption of the Constitution. Specifically, Kendall examines the Mayflower Compact, the General Orders of Connecticut, the Body of Liberties of Massachusetts Bay, and the Virginia Declaration of Rights.106 In them, we see the development of "the supreme symbols of the American tradition, that is . . . the symbols of a virtuous people through deliberative processes striving to achieve and advance their declared purposes which involve, inter alia, better ordering with justice."107 Related are the symbols of the consent of the people, the supremacy of their deliberative body and its commitment to act for the general good of society, and the submission of society to a higher law.

Kendall begins his analysis with the Mayflower Compact, where these symbols begin their development. The Compact begins with a "traditional Christian invocation: 'In the name of God'"108—an oath is being taken. In the next section the signers identify themselves and state the purposes of their undertaking (e.g., glory of God, advancement of the Christian faith). A body politic is then created by oath ("solemnly . . . covenant and combine ourselves together into a civil Body Politick").

Finally: "for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact . . . such just and equal Laws . . . as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience."109

One apparent symbol is the glorification of God. Additionally, the "supreme 'values' of this system," Kendall argues, are "justice and general good."110 Finally, the language "laws thought to be just and equal" and the very solemnity of the unanimous adoption of the document under an oath suggest deliberation and consensus. Importantly, individual rights do not come into the equation, but it may be implied that individuals may derive rights through the community's commitment to make "just and equal laws," through deliberation, in furtherance of justice and the general good.

Moving to the Fundamental Orders of Connecticut, we see the "Mayflower symbols" in "differentiated form."111 Most importantly, the "better ordering" and "enact, constitute, and frame . . . just and equal laws" symbols have differentiated into the symbols of a written constitution with a supreme legislature. There is no longer any mention of "just and equal laws," and no symbols differentiate in the direction of individual rights.

The Massachusetts Body of Liberties, enacted two years later, introduces the symbol of "liberties, immunities, and privileges . . . due to every man," which seems to approximate our contemporary understanding of individual rights.112 However, the document states that the freedoms are "due to every man in his place and proportion"—suggesting that the drafters are concerned with justice rather than equality.113 Also, the liberties are either guarantees against courts or executive officials, or those that are guaranteed against the General Court (the legislature). The rights that would constrain the legislature contain "escape clauses," e.g., "unless . . . grounded by some act of the Generall Court [legislature]."

This raises the question of why certain rights would be spelled out if these rights did not legally constrain the legislature. The answer lies in the relationship between the symbols of the virtuous people, bound by consent, deliberating in subordination to transcendent truth. The people of Massachusetts, who have attained the habit of self-government, are entrusting their rights to the legislature—placing their rights in their own hands, in a sense, and thus implicitly asserting their right to self-government (through their legislature).114

The legislature, though "supreme," does not rule by whim. The Body of Liberties was enacted by a people binding itself together into a body politic dedicated to the glorification of God. In doing so, they commit themselves to being "'servants' of humanity, civility, and Christianity, and as such servants, accept their call of humanity, civility, and Christianity."115 As a deliberative body, the legislature is bound, therefore, to draw upon "the great tradition of Western man's thought about the humane and civil . . . appeal[ing] . . . to the transcendent truth of the soul and society as continuously explored . . . through the experience of philosophy and religion."116

The need to solve complex problems causes the symbol of the legislature to be further differentiated. The commitment of the legislature requires well-thought-out measures for choosing representatives. A good "machinery through which representatives are chosen . . . will channel the virtue of the virtuous people, their subordination to a higher law, into the decisions arrived at, through deliberation, by the virtuous people's representatives."117

Although individuals unquestionably have rights, individual rights have not yet been expressed as an essential symbol of the American tradition, Kendall contends. Instead, the central symbols are the supreme legislature and the "higher law that the supreme legislature must apply to day-to-day problems." This is because, first, the common or general good was seen to be the primary concern, and second, because the legislature, through its deliberations and with the consent of the people, was seen as the best and most appropriate institution to deal with these problems. 118

Moving ahead almost 150 years to 1776, just before the Declaration of Independence was enacted, the Virginia Bill of Rights was passed. It declared that all men, being "by nature equally free and independent," have "inherent rights."119 Nevertheless, Kendall argues against any Lockean influence, and asserts that the document most centrally asserts the right of the people to govern itself. He notes that the rights "are rights that pertain not to all men, not to individuals, but to the "good people of Virginia," and pertain to them precisely as "the basis and foundation of government."120

He also shows that a close reading of the individual rights the document lists shows that, as with the Massachusetts Body of Liberties, none of them are individual rights that can be wielded against the legislature: they are either common-law rights of procedure or provisions that express the right of people to govern themselves through democratic processes—thus reinforcing the symbols of deliberation and the legislature.121 Kendall next sets out to demonstrate that the Declaration of Independence is also (if read correctly) fully consistent with the main symbols of the American tradition, while at the same time cautioning that it should not be viewed as the principal founding document of the nation. According to the official literature, the Declaration's second paragraph sets forth our basic national commitment to equality and liberty: "We hold these truths selfevident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights."122 However, Kendall argues that the inclusion of the phrase "all men are created equal" did not signify that we, as a nation, had adopted an egalitarian ethic as a binding national commitment. He argues that read as a whole, the Declaration reinforces the symbols of self-government through deliberative processes,123 and that it is inappropriate to "wrench from it a single proposition and make that our supreme commitment." Moreover, the Declaration, as a document with a limited purpose, is not a constitutional document; it is a unanimous declaration, by independent states, of their intentions to break their bonds with Britain.124 It follows, then, that we cannot infer national commitments from a document that was created before the states had self-consciously formed themselves into a union—which didn't happen until the adoption of the Constitution in 1789.

The commitments set out in the preamble to the Constitution, unlike those of the Declaration, do establish a "new political order,"125 Yet they do so in a manner that is fully consistent with America's native symbols.126 Study of the preamble is now neglected, yet it "still serves as our finest statement of purpose."127 The language of the preamble places the source and ends of government with the people, rather than deriving them from abstract, theoretical notions of natural rights:

To say that "We the People" do ordain and establish a government "in Order to" promote desired ends is quite different from saying, as does the Declaration, that "Governments are instituted among Men" to secure certain "rights." The words of the Preamble tell us that men, "We the People," are instituting government in order to promote purposes or ends to which "We the People" subscribe . . . . [T]he Preamble suggests that this entire process is not predestined: Rather it is a matter of deliberate choice… the people . . . have a "right" to establish their own ends or purposes when constituting a government, not ends derived from a source other than the people.128

An understanding of the symbols of the American tradition is also relevant to The Federalist and the structural provisions of the Constitution. When we think of the core design of the Constitution, we bring with us certain assumptions, such as the idea that the branches are separate and equal. Kendall maintains that when reading the text of the Constitution without preconceptions about its operation, one finds that Congress in fact has extraordinary power: it can, among other things, impeach judges, impeach executive officials, remove issues from the jurisdiction of the Supreme Court, and torment the other branches with its control of the power of the purse.129 In Kendall's formulation, the legislative branch is in fact the most powerful branch. Therefore, the Constitution is a majoritarian document, despite various checks meant to encourage consensus and deliberation and discourage rash action.130 Besides which, a habitual "selfrestraint and cooperation" is necessary in dealings between the branches—thus the "constitutional morality" that The Federalist prescribes is not the Framers' innovation; it was, in fact, derived from earlier symbols of consent and public virtue.

As Publius saw it, the various checks built into the deliberative process by the Constitution create delay, which facilitates consensus, as opposed to simple majority rule. But that leads to this question: "Why should delay, even granting it contributes to the development and perpetuation of consensual politics, serve to filter our majority factions while, simultaneously, responding to the wishes of non-factious majorities?"131 For, while delay can reduce the possibility of rash actions, it cannot itself insure against tyranny, as those "bent upon . . . crimes against society . . . also deliberate, plan, and calculate." The answer is that Publius had certain unstated assumptions regarding the American people: "(a) The American people, unlike perhaps other people, have a sense of right and wrong; they do have, in other words, a feeling for justice and doing that which promotes the true interests of the community. (b) . . . the American people will opt for that which is just and designed to promote the permanent and aggregate interests of the community . . ."132 Kendall, then, sees implicit in The Federalist a tacit premise of the essential virtue of the people. This idea must be understood in light of the symbols of the virtuous people advancing the common good through deliberative process. Here, Kendall is echoing a key argument made in John Locke and the Doctrine of Majority Rule: Locke's "latent premise" regarding the morality of the majority has become Publius's assumption regarding the American people.

Finally, Kendall argues that the Bill of Rights, though opposed by the Framers, did not seriously alter the character of our political culture when it was enacted. For example, the First Amendment did not fundamentally constrain Congress, because the liberty of the press nevertheless was understood to be regulated by Congress through the common law of seditious libel.133 Moreover, if the Bill of Rights were understood to effect a radical change on our political tradition, one would expect it to be hotly debated—yet, Kendall argues, it was scarcely debated in the House of Representatives.134 More likely, Kendall argues, Congress assumed they would have little practical effect beyond "hav[ing] a tendency to impress some degree of respect for them," in the words of Madison.135

From the Mayflower Compact through the passage of the Bill of Rights, then, "our supreme commitment and symbol has been self-government by a virtuous people."136 This symbol, present since the Mayflower Compact, reaches its full expression in the Madisonian republic, where the deliberation of the virtuous community is fostered by the design of the Philadelphia Constitution and the constitutional morality of The Federalist.

Moreover, "[t]he basic American symbols breathe the spirit of moderation."137 Through the process of differentiation, the symbols of the religious commitment of the people have been split off from their governmental institutions—"we sighed the sigh of relief when we got to Virginia and found the Americans ready to separate the political order from the religious order."138 Never theless, the society's conception of itself as striving for transcendent ends remains a critical element of its self-understanding, and the symbols expressed in its governing institutions are inseparable from its religious commitments.

However, any political society's core symbols are in danger of derailment, where it may lose its way, its proper relationship to the transcendent corrupted. One typical derailment involves

forgetting that the truth of the soul and that the truth of society are transcendent truths, and that the function of the basic symbols is to express the relation between political society and God. The basic symbols may be so manipulated . . . to cut man off from anything and everything higher than himself in the constitution of being . . . to understand man as possessing final truth, instead of merely groping for it across the gulf of transcendence. 139

Another standard derailment involves exaggerating a constituent part of a society's core complex of symbols—for example, the elevation of the "all men are created equal" clause of the Declaration of Independence—and "exaggerating it at the expense of the remainder."140

A third typical derailment "takes the form of deciding that the Promised Land, the ideal society of saints, can be built in this world, and need not be postponed until the world to come. Marxism is the very embodiment of a derailment of this nature." 141

Narrowing the focus to the American political tradition, one derailment holds that "God does not exist, but he American people are still the chosen people who must . . . build the Promised Land on earth."142 America's central myth, then, holds that "our national genius expresses itself . . . in an apostolic succession of great leaders: George Washington, Thomas Jefferson, Abraham Lincoln, Roosevelts I and II, and John Kennedy, each of whom sees more deeply than the preceding leader into the specifically American problem, which is posed by the 'all men are created equal' clause of the Declaration of Independence."143

Another typical derailment of the American tradition holds that "the Moses of the American people is Jehovah himself," and that [t]he Americans are God's own people, America is God's own country." America's mission, then, is to fulfill its divine mandate by "building the New Jerusalem and spreading it over the face of the entire earth."144

These represent the typical derailments, and those who are victimized by them are pretty certain to become fanatics of a sort. They will . . . demonstrate by their behavior a contempt for the rules laid down in The Federalist for the operation of the Philadelphia Constitution . . . . Whenever there is any considerable number of them amongst us, the American political system is on the threshold of a crisis, in danger, that is, of breaking down.145

While the seeds of America's derailments may have predated Lincoln and the Civil War, Lincoln's Gettysburg Address, with its intonation that in 1776 "our fathers brought forth . . . a new nation . . . dedicated to the proposition that all men are created equal," was the watershed moment in which the "all men are created equal" clause of the Declaration of Independence was elevated to the status of America's core founding commitment. Following the Gettysburg Address, the Declaration of Independence could be elevated to the status alongside the Constitution as a binding foundational document, setting out American society's commitments as a people.

In the preface to the 1995 edition of Basic Symbols, George Carey succinctly expresses the nature of the derailment of the supreme symbols of the American tradition, borrowing the terminology of philosopher Michael Oakeshott:

Our Constitution, consistent with the basic symbols, is clearly nomocratic in character, largely concerned, that is, with providing rules and limits for the government through which the people express their will. Since the derailment, however, the Constitution is increasingly viewed from a teleocratic perspective as an instrument designed to fulfill the ends, commitments, or promises of the Declaration.146

Willmoore Kendall's successive re-evaluations of his own thinking resulted in a mature body of work that contrasted markedly with his earliest writing. However, the transformations of Kendall's thought are best understood as development rather than inconsistency. From Kendall's early enthusiasm for government by plebiscite, through his "conversion" to Straussianism, to his encounter with Eric Voegelin's teaching, to his fruitful collaboration with George Carey, certain themes stand out. Kendall conceived of American society as, at its healthiest, a culturally homogeneous community sharing core, basic assumptions: an organically integrated body politic. He was unfailingly optimistic about a virtuous political society's potential to resist tyranny, govern itself moderately, and bring minority opinion into a larger consensus. Kendall's distrust for sloganeering (of both the left and the right) over "equality" and individual rights stemmed from his distrust for ideologies that hold the dangerous potential to undermine self-government. Individual-rights absolutism, with its atomistic vision of the polity, also clashed with Kendall's notion of society as an integrated community, in which rights must exist alongside coordinate duties within society's complex structures of association.

Despite the neglect that Kendall's teaching has encountered in the decades following his death, it is difficult to find an example of a contemporary political or cultural controversy to which his teaching does not add clarity. Both in clashes of left and right, and in the internecine battles of the conservative movement, Kendall's illumination of the crucial underlying issues retains its vitality.

Kendall invited denunciation from his adversaries by uttering heresies against America's supposed core values. The sharp criticism that Kendall attracted by denigrating the Bill of Rights, questioning the role of the Declaration of Independence, and expressing his skepticism of the value of freedom of expression in the "open society" is not surprising. Kendall, of course, delighted in antagonizing his enemies. But his true aim was to revive a constitutional order that represents America's best, and perhaps only, hope for resisting tyranny, protecting self-government, and safeguarding the liberty of its citizens. His purpose was not to engage in blasphemy, but to revive a lost American orthodoxy.

Mark Nugent
Ave Maria School of Law

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