In my last post, I argued that our governing institutions are designed to express and pursue particular political values, namely the foundational values of liberal constitutionalism. Thus, we see consensual governance, national security, the rule of law, the protection of inalienable rights, and the general welfare advanced in different ways by the three branches of government and across the levels of our federal system. Drawing on Dan’s insightful characterization of our government as temporally structured—with past-, present-, and future-regarding values—my basic point was that our political institutions are designed to promote certain political goods. (Incidentally, a different Dan recently explored this point on the New York Times Campaign Stops blog.)

So that’s where this post picks up. And it’s especially important to continue following this line of reasoning because the institutional expression of political values has profound implications. The first, and most apparent, is that we should expect our institutions to clash with each other quite regularly. The goods expressed by legislatures, courts, and executives at all levels of government, while equally central to the constitutional enterprise, are in tension with one another. Brief reflection reveals that national security and civil liberties often conflict and that consensual governance and minority rights at times present competing claims. In short, the things we want government to do—the very reasons we have the government we have—are incommensurable. And that is exactly why our institutions are structured as they are.

By institutionalizing the desiderata of self-government, we ensure that what we care about in the political realm will not fade away with passing political coalitions or be swept aside at the whim of individual leaders. This was James Madison’s point in Federalist 51, where he warned that because men are not angels we mustn’t put all of our trust in their rectitude or virtue: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Our political institutions are those auxiliary precautions.

But in order to function as auxiliary precautions, We the People living under the Constitution must not only countenance the conflict and disagreement that necessarily follows from the proper functioning of our political institutions. We must also expect it. Indeed, we must demand it. Precisely because the values at the heart of constitutional self-governance are in tension with one another we must demand that they confront one another in the context of inter-institutional interaction. For only when an argument can overcome opposition rooted in core constitutional values will the decisions we make as a polity benefit from the full measure of deliberation and legitimacy.

And that leads to the second implication: we must have a political culture, supported by a social order, that can produce and withstand this kind of disagreement and debate. This is a multifaceted and complex requirement, to be sure, but I’ll suggest just a few aspects I think are particularly important. First, there must be non-political institutions that can diffuse some amount of the disagreement that is naturally occurring in any polity. Put differently, while politics can channel and resolve some conflicts, we must have a robust civil society that can handle the rest.

Second, and related to civil society, we must have institutions, opportunities, and relationships that habituate us in the norms of civility. For all that politics is, it is rarely characterized as civil. Much of the incivility of modern politics, I believe, is rooted in a lack of experience handling contentious issues. Religious organizations, social groups, and networks of friends can all prepare us for the political conversations—and yes, disagreements—that a healthy polity must address.

And finally, we must have some common core of beliefs or commitments (a moral consensus, perhaps?) that will render politics productive. Beyond a certain degree of disagreement, politics becomes merely a contest for the power necessary to suppress the opposition, rather than a means of strengthening bonds of agreement and aspiration.

The inevitability of political conflict and the political culture it requires emphasize the importance of the pre-political, everything on which a healthy politics depends. A few weeks ago I questioned how much collaboration is possible with those who see government as the principal institution in communal life. What I’ve sketched out above intensifies that concern. When our political institutions presuppose a certain kind of individual and communal character—a respect, civility, maturity, and unity—any hope for a better life together starts with realizing where we must focus our attention.

Dan Kelly’s most recent post, probing the conflict between judicial activism and self-governance, brought to mind an oft-recounted tale. The most common formulation is found in Judge Robert Bork’s 1990 book The Tempting of America:

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job.  It is my job to apply the law.”

Hoping to include this exchange between two of America’s towering legal figures in a response to Dan’s piece, I did a quick search to fact-check my recollection of the story. Lo and behold, it seems Judge Bork’s account is but one of several. That in itself isn’t so big a deal…unless one of those other accounts is Judge Learned Hand’s:

I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupe. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job.  My job is to play the game according to the rules.”

The differences between the two versions—between law and rules, between playing and applying—are certainly worth further exploration. (Which, as my search revealed, at least one person has already done.) But both versions affirm Dan’s basic point: deviating from known standards is a fundamental subversion of the judicial role. The temporal framework he used to illustrate this point is particularly helpful. Our system of government is structured to pursue past-, present-, and future-regarding values.

I think it’s important to add another layer to this framework, one gives us a clearer understanding of the purposes, and therefore expectations, of our governing institutions. The threefold temporal distinction corresponds to a division of political values that serves as a structural organization of the ends of constitutional self-government. The legislature is designed to express (some form of) the popular will, in pursuit of the goal of consensual governance; the executive is designed to expeditiously implement the law and protect the country; and the judiciary is designed to maintain the rule of law, bringing to bear on the present polity the decisions it previously made. With this understanding we can see that each branch is intended to pursue an equally important value, and that any departure from these institutionally-induced intentions can deeply influence the nature and prospects of our politics.

To this point, all I’ve said is that I agree with Dan. And I’d be happy to leave it there! But, as I intend to push this same point further in the future, I’ll conclude by saying that the structural rationale of our government assumes a certain kind of political culture. And with that, I have a topic for my next post.

For anyone who watched more than a few minutes of the recent political conventions, a sharp distinction between Democrats and Republicans was in fully display. Democrats, it was widely remarked, looked like they were having more fun. They were smiling, singing, and dancing, and every crowd shot showed hundreds of devoted faces. In contrast, the Republicans were as staid as, well, Mitt Romney. This difference was not lost on the punditocracy, either. The days following the Tampa and Charlotte confabs were filled with reports of the excitement gap between the parties. The accounts differed but the observation was the same: unlike Republicans, Democrats are jazzed up for this election.

While there is certainly room to question the accuracy of this observation, I think it points to a deeper and more consequential difference between conservatives and liberals. More important, it is a difference that bears directly on the quest for any kind of moral consensus. It is a difference that threatens to stymie any attempt to seek the common good.

As I watched the speeches at the DNC, I too was struck by the intensity of devotion and the depth of passion of those in attendance. And I began to ask myself a very simple question: Why? Was there a reason for the apparent discrepancy between Democrats and Republicans? Was it mere coincidence? As I turned the question over in my mind I began thinking of other episodes that illustrated the same phenomenon, the gap between liberal and conservative political passion. (Being from a state that recently underwent a gubernatorial recall election—which was itself preceded by months of political organization and before that months of political protest—examples were easy to come by.) There was a drive for political power amongst Democrats that Republicans couldn’t even get close to mustering.

After thinking through a few possible explanations, I arrived at a beguilingly simple answer: It’s because they want it. That sounds unhelpful—of course they want it, that’s why they’re trying to get it!—but it marks a profoundly consequential difference between the two dominant political factions in America. On one side, the political left, there is a group that in order to pursue and achieve its goals must control the levers of power. When you want to maintain or increase funding for Planned Parenthood or enact marriage-equality legislation, mere representation will not do. You need majorities. And to get there, you need to win elections. So a political campaign is the kind of thing that will elicit a pretty strong response.

On the other side, the political right, there is a group that goes to great lengths to talk about limiting the reach of government and rolling back many of the powers the state has assumed. When you want to stop the expansion of government and seek progress outside of government, you are much less concerned with winning elections. Indeed, your primary motivation to engage might be solely to prevent the other guys from doing what they want to do.

There are, of course, several qualifications to this argument. For one, there are most certainly Republicans who are as (and more) power-hungry than Democrats. There are also aspects of the Republican agenda that, to be enacted, would require political control. And on top of this there’s a feedback process by which the agenda of any one party draws the other into a contest for power. Nonetheless, a fair reading of the parties’ platforms (Democratic, GOP) makes the difference clear. By and large, Democrats see government as the proper arena for pursuing common goals while Republicans see non-governmental spheres as the proper location.

I don’t want to be hyperbolic or unnecessarily polemical, so I assert this a contestable observation and not an accusation: liberalism in its modern manifestation is primarily a vision for government and is only derivatively concerned about civil society. Conservatism, on the other hand, puts great value on an independent civil society that delimits the scope of government.

So how does this relate to attempts to seek, or even discuss, moral consensus? As Dan has helpfully pointed out, among the central issues of the debate are the preservation of family, voluntary associations, and community. Whatever agreement(s) we reach will be characterized by a limited role for government and a correspondingly expansive role for civic society.

When we consider the different conceptions of government and society in liberal and conservative thought, we are thus confronted with two major problems. The first is procedural: how do we begin to discuss our problems when one side sees government as a necessary actor and the other side sees it as an impediment? Our discourse is heavily shaped by our respective commitments to how to best go about answering questions of common concern. The second problem is substantive: if we are able to get the discussion off the ground, it is quite likely that one side will propose governmental solutions while the other will propose non-governmental solutions. What are we to do when the conversation reaches this point?

There are many answers to these questions. And there must be if we hope to meet with any measure of success in our quest for moral consensus. While I hope to explore some of those answers in future posts, I wanted first to describe some of the challenges I see ahead. Is our little endeavor doomed from the start?

It’s titles like that one that leave little doubt about my current “profession”: I am a graduate student. I say that not as a boast (because voluntarily living on the edge of poverty for years on end is something to be proud of?) but by way of explaining why it is that I think methodological questions are worth serious reflection, especially as this new group blog gets off the ground. 

Now, of course, one needn’t be a student or an academic to appreciate the importance of method. It’s just that in the academy the importance of method is almost literally drilled into your head. (Even to the point that you know how to do something long before you know what is worth doing, but that’s a topic for another post.) For our purposes, method can be defined pretty simply: it’s how you do what you do.

Here at Hang Together, we are committed to seeking, probing, and discussing a “renewed moral consensus for a united America.” This goal is quite different than, say, finding the area of a triangle or determining the chronology of American presidents. It seems clear that for each of these goals there is a method that would be more useful than others. For the two examples I just gave, some form of mathematical and historical method, respectively, would be appropriate. As a corollary, there are methods that would not be appropriate to the inquiry. Try as I might, no amount of American presidential history will help me find the area of a triangle. So the first methodological reflection is that there are good and bad ways to go about doing what we hope to do. 

So what method is appropriate to our goal? I won’t pretend that there is a single or a simple answer. Indeed, as we are largely driven by a theory concerning the importance of moral consensus, it wouldn’t surprise me if a variety of methodological approaches could be fruitfully employed. Nonetheless, I believe it’s important that our methods, whatever they may be, are characterized by their concern with the common good we seek to promote. Too often in political discourse arguments aren’t so much exchanged between opponents as they are circulated amongst sympathizers. When we circle the wagons and preach to the choir, we foreclose opportunities to make progress towards resolving the questions we and our “opponents” agree are so crucially important.

As we begin an endeavor to find, rediscover, renew, or construct a moral consensus, we should think seriously about the prerequisites for such a journey. If, after all, we are united in a measured critique of the “culture wars” and the all too common tendency to conflate Christianity, conservatism, and the fate of America, then we should be wary of attempts to fight battles and worry about the aftermath later. Any eventual settlement of the questions we grapple with will be informed by and depend on how we get there. And getting there implies that we walk side-by-side with those with whom we disagree. Doing so requires framing and discussing the issues we explore with honesty and humility. The second reflection, then, is that, when and where possible, we should focus on the common stake we have in the questions we undertake to answer, the ground we hope to share with those who disagree with us.

The final reflection concerns the matter of disagreement just mentioned. We are, after all, treading over contested terrain. That we are seeking moral consensus tells us that agreement is currently lacking. And, like those with whom we will engage, we approach that terrain with deeply held beliefs of our own. Many of those beliefs are incommensurable with opposing beliefs. There will come times when compromise is impossible and disagreement will remain. Far from signs of failure, these instances are to be expected, for such is the nature of moral, religious, and even some political convictions. 

Thus, the final methodological reflection is that we must have the resolve to state the beliefs that may leave us at loggerheads with others and may exclude others from our ranks. We mustn’t fall into the trap of believing that there is some grand synthesis to be achieved between conflicting claims about our moral, religious, and political universe. But there is agreement to be had. The challenge of this whole project is to find it and invite others to join us there.