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George Will makes the conservative case against democracy

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It’s a good time to be a Republican. But it’s a bad time, George Will argues, to be a conservative. Hence his new, 700-page manifesto, The Conservative Sensibility, which tries to rescue conservatism from the perversions of the Trumpist GOP.

Will’s conservatism is rooted in a deep mistrust of majority rule, and an almost religious veneration of the Founding Fathers, or at least a certain understanding of them. Remember, he writes, “the Constitution of the first consciously modern nation, the United States, protects the sovereignty of private individuals, not the sovereignty of a public collective, ’the majority.’”

Will is articulating a tendency that’s always been present on the right, but is becoming more central today: the belief that majority rule will be the death of the American experiment, and that the conservative project is at odds with democracy. Will is more forthright than most on this point: He chides conservatives for blasting activist judges, for instance, arguing that the right needs a judiciary willing to make sweeping rulings to curb the power of the state and the whims of the crowd.

There’s a lot to discuss here. And discuss we do. You can listen to our full conversation by subscribing to The Ezra Klein Show wherever you get your podcasts, or streaming it below. A transcript, edited for length and clarity, follows.

Ezra Klein

You write about a “braided relationship” between a person’s political philosophy and his or her sensibility. Can you tell me a bit about that?

George Will

By sensibility, I mean something more than an attitude but less than an agenda. I didn’t want to write another book telling people 10 things to fix America, or what to think, I’m more interested in how to think. How we think is a result somewhat of our sensibility of how we respond to the flux and flow of things in a complex society. That’s as close as I can come to defining it.

Ezra Klein

In political psychology, there’s this concept that Jon Jost, at New York University, calls elective affinities. That depending on where you start with your psychological makeup — whether you like change, or you prefer tradition — that some ideologies will be of more appeal to you. And it feels like you’re getting at that concept here.

George Will

Right. I can put it in a less recondite way by quoting Virginia Postrel, who said that the story of the Bible reduced to one sentence is “God created man and woman and promptly lost control of events.”

The conservative sensibility, as I understand it, says, “That’s terrific.” The conservative sensibility finds the lack of design and lack of control of a spontaneous-order, free-market society to be exhilarating. Some people find it frightening, others find it offensive that things are going on without people organizing it and bossing people around. The conservative sensibility says lack of control is a good thing.

Is conservatism about accepting change or preventing it?

Ezra Klein

That’s surprising, because when I think of conservatives and the conservative movement, I think of a preference for order. That’s often assumed to be within both the conservative agenda and the psychological makeup. And yet you’re defining it as a group of people who are actually quite comfortable with a sort of disorder.

George Will

Yes, the people who say conservatism wants to defend order have a good point, but the wrong country. European conservatism evolved in defense of established institutions, orders and hierarchies, often nobility, often monarchy, often established churches. And it became self-conscious and articulate under Edmund Burke, who was of course in strong recoil against the French Revolution, and its turmoils, and wound up celebrating the British public as the stolid cud-chewing cow in the meadow, with grasshoppers making lots of noise but having no consequence.

American conservatism is something the reverse, which is to say it celebrates and wants to reconcile people to the hazards and frictions granted, and the creative destruction, the exhilaration of a free society.

Ezra Klein

There’s a tension here between the conservatism that is comfortable with the creative destruction of the market and conservatism’s defense of the preexisting social hierarchies, which has given the conservative movement much of its power in the US.

Your book is dedicated to Barry Goldwater, but in 1964, the only region he won was the South, and that was based not on a preference for a free-market approach to affairs, but a frustration about the way civil rights was changing their states. So how do those two things reconcile?

George Will

They don’t always reconcile. There are tensions within conservatism: There’s the localism that took a particularly unseemly and nasty turn with Jim Crow laws, which reflected local majorities. But there is a social conservatism that says if you’re going to have the free-market, lightly governed society, then you’re presupposing a moral capital that institutions, religious and otherwise, have to nurture. Therefore the civil society becomes a principal concern of those who are less concerned about a strong regulatory administrative state.

Ezra Klein

Your book is built on the idea that there’s a fundamental conflict between conservatives and progressives on the idea of human nature. What do you see as the conservative view of human nature, and where does it differ from that of progressives?

George Will

Human nature is not plastic. People are not as malleable as some people thought they were. John Dewey, for example, and some of the early political scientists at the turn of the 20th century, said that people were reflections of an ever-evolving culture, and it’s a political project to take charge of the evolution of the culture to make sure that it progresses. Hence, the label “progressives.”

Ezra Klein

It seems to me there are two ideas built into that, and I agree with one and probably disagree with the other. It does seem to me that human beings are remarkably plastic — what they’re not is predictable. We were hunter-gatherers living in big kinship communities. We have adapted to extraordinarily different circumstances over time. On the other hand, the idea that we can organize that plasticity and direct it in a clear rationalistic way is, I think, proven wrong again and again throughout history. It seems to me that you can take half of that without taking the other half.

George Will

You probably can. I think the conservative sensibility wants both halves. I’ll tell you what John Locke and James Madison had in mind. Locke said that individuals are self-conscious creatures who define themselves through action. They are largely self-interested, and will behave in more or less predictable ways. Which is to say, politics can take its bearings from the steady constant in human behavior. Conservatives say ‘what’s the worst in life, and let’s try to avoid it.’ And the worst result in politics is tyranny. And you work from there. How to limit government and make tyranny, including tyrannical majorities, less likely.

Ezra Klein

That’s a very broad definition of human nature, but the way that you apply it in the book is more narrow. The argument you’re making, as I understand it, is that this idea of human nature flows into the idea of limited government, and this idea of limited government flows into certain political structures. And as I understand the structures, they would take things like a big national health care system, among other policies, off the table. It’s a big jump to go from a Lockean idea of human nature to a narrow vision of what government can do.

George Will

It is a big jump, but the question of the proper scope and actual competence of government are not severable questions, and they are largely informed by human experience. Short term experience in the United States from the New Deal on, in the larger context, the last 600 years of North Atlantic community history, again informs us about the proper scope and actual competence. And as I say, those are not quite severable questions.

On “the empirical case for limited government”

Ezra Klein

In the book, you write, “The empirical case for limited government is that although human beings have something in common—human nature—they are different in capacities and aspirations. From this it follows, not logically but practically, that government cannot hope to provide happiness to all. The most it can reasonably expect to provide are the conditions under which happiness, as each defines it, can be pursued.”

If this is to be defined as an empirical question, then it seems we could look at places that have done different things, like Canada and Western Europe, and see if people are happier and go from there. I take it that that probably would not be amenable to you.

George Will

To come back to the subject to raise, national health insurance. That’s largely a utilitarian call. There are people who say that the human experience in what we call more advanced societies has shown that … certain protections and rights, alongside restrictions on or duties for government, make people have a worthy happiness. In that sense, as I say, we’re all rule utilitarians learning as we go along.

Ezra Klein

You frame that reasonably positively. It seems to me you’re saying that you can hold those opinions and even potentially be a conservative?

George Will

Sure.

Ezra Klein

That’s interesting, because you argue for a version of judicial review in the book, that I think would take a lot of this off the table. And as I understand it, it flows from these fundamental assumptions of human nature and limited government. But does it not? Am I misunderstanding that chain?

George Will

Well, I’m not … I do have a very expansive role for the judiciary, to produce what Madison called “mitigated democracy.” I’m not saying that Social Security or Medicare or what have you should be considered unconstitutional. I am saying that there are certain rights necessary to human flourishing that enumerated or not, and the ninth amendment of course provides for unenumerated rights, that cause me to think, for example, the Lochner decision was quite right, because the freedom to contract is fundamental to the flourishing of autonomous individuals either as individuals or cooperating voluntarily in groups.

Ezra Klein

Help me draw out the distinctions here. The book seems to me to be constructing an argument from philosophic first principles for a very different world than the one that someone like me would prefer. I’m having a lot of trouble in this conversation drawing out the distinctions. In the book, you’re clear you want something quite different than what we see. That you think we’ve gone quite far off the rails. Tell me about how America should look differently?

George Will

The book is dedicated to the memory of Barry Goldwater, for whom I cast my first presidential vote in 1964, when 77 percent of the American people said they trusted the government to do the right thing all the time, or almost all the time. Today, it’s 17 percent. Now I would think my progressive friends would be interested in the fact that the 60 point collapse has occurred, because everything progressives want to do depends on strong government, and that strong government depends at the end of the day on public confidence in the government.

You ask how would America be different? We’d be much more lightly regulated. The states would be less administrative appendages of the federal government. We would have congressional supremacy reestablished. We would not have a presidency untethered from any restraints imposed by the separation of powers. We would have a president not empowered to declare emergencies and wield powers given to him by Congress. The complaints that modern presidents usurp powers is unfortunately not true. They’re wielding powers that were all too willingly given them.

The one thing my hero James Madison got wrong was he said that under popular government all power is sucked into the impetuous vortex of the legislature. In fact, legislature has been spinning off the powers. Congresses under both parties have been spinning off powers to presidents of both parties.

Ezra Klein

It is hard for me to believe that the government were doing less to solve the problems people felt they had, that they would like it better.

George Will

Well, it’s curious though, that as governments pretensions and solicitousness have grown, its prestige has plummeted. This began in the 1960s, when the landslide against Goldwater produced the first liberal legislative majority in Congress since 1938. What government does that it knows how to do is something like Social Security. You identify an eligible cohort and mail the cohort checks. It’s good at that.

What it’s not good at is creating, for example, model cities, or nation building abroad. That’s far more ambitious than what the New Deal had in mind, and far more subject to disappointment. And disappointment produces the curdled American attitude toward the national government that exists today.

Ezra Klein

Let me go back to the story about trust, because I think it’s interesting. One problem with all this of course, is the lack of survey data going back much further than the ’50s, ’60s, ’70s. But let’s grant that the New Deal era, which follows a large expansion of governmental power, is a high watermark for trust in government, and then in the Nixon era and what follows it, you begin to see a large and consistent fall. It seems to me there’s a consistent story here that says something like, you had ideologically mixed political parties with low polarization and a not-very nationalized media and this led to reasonably high trust in government.

Then as the parties polarized, and a conservative movement with its own oppositional media developed that was about attacking government and bringing attention to its failures, trust in government falls. Put another way, trust in government is less about what government is doing and more about what is being said about it and reported on about it.

George Will

I think that’s right. I am frankly bewildered by the intensity of our political argument today because I don’t know what we’re arguing about. I’m much more alarmed not by the discord in America, but by the consensus, which extends from Elizabeth Warren on the left to Ted Cruz on the right, and it is this: We should have a large and generous welfare state and not pay for it. Everyone’s agreed on that, as far as I can tell, and the public loves it — they get a dollar’s worth of government and are charged 80 cents for it. And the differences fobbed off on the unconsenting, unborn future generations.

We used to borrow money for the future — we fought wars for the future, built roads, harbors, airports for the future — now we’re borrowing from the future to finance our own consumption of government goods and services, and everyone’s agreed on this. It seems to me the political class is more united by self-class interest than it is divided by ideology in this regard.

Political scientists have been saying for years that Americans are ideologically or rhetorically conservative, but operationally liberals. Absolutely true. They talk like Jeffersonians and insist on being governed by Hamiltonians.

What did the founders believe?

Ezra Klein

I think this is a nice bridge to the chapter on judicial review and the Constitution more broadly, which seems to me to be the heart of the book. You argue that the conservative experiment is fundamentally about the founding experiment, that it’s about the views of the founders as embedded in the Constitution, which you argue operationalizes the Declaration of Independence. Can you talk a bit about that view?

George Will

Yes. I should say that among those who sternly rejected that view of mine that you just accurately describe was for example, Justice Scalia. Scalia said the Constitution contains no philosophizing. The Declaration was a revolutionary document useful in its time in place, but has nothing to do with the Constitution.

My view of the Constitution is that it should be read in the light cast by the Declaration of Independence. The most important verb in the Declaration is in the second paragraph, which says, “All men are created equal, endowed by their Creator with certain unalienable Rights and governments are instituted to secure those rights.” And when you start from that, you were put on the path to limited government, and therefore the respect for the, what Hayek called the spontaneous order of a market society,

Ezra Klein

In your book, you write about the importance of what the founders intended, but you also write about the fact that the founders split into the political parties in part over their differing views of what the Constitution permits, and was intended to create. Given the diversity of views among the founders, how can we talk clearly about what “the founders” as a group intended?

George Will

By understanding that while we had these robust, wonderfully interesting arguments they were arguing about what kind of people we were going to be. [To Jefferson] we needed a vast extensive republic, in which there would be lots of land for steady, rural, self-reliant yeomen, rather like Thomas Jefferson. And Hamilton said, No, actually, we want public credit system of finance, and a debt to help with economic growth to allow for a restless, entrepreneurial striving, urban manufacturing commercial class of people rather like Alexander Hamilton.

They were really arguing about the soul of the country, what kind of people we were going to be. I once wrote a book, read by dozens, called Statecraft As Soulcraft, in which I argued that when you organize a society, and particularly when you pick an economic system, you are, of necessity, picking the kind of people you’re going to deal with. Your statecraft becomes soulcraft.

And I think America made a wise choice to have a robust, constantly turning market society with the consequent individualism celebrated. What worries me more than anything about the American future is that will now have a great flinch. People will say, “this kind of freedom is stressful, and there are casualties and frictions and uncertainties, and it’s just not worth it anymore.”

Ezra Klein

I want to hold here on the question of founder interpretation, because as you go through the book, you’re arguing for the judiciary at this point to take on a much more active role than even most conservatives support. But given what you’re allowing here about disagreements between the founders, there are obviously fundamentally different ways to interpret the Constitution.

George Will

Let me be slightly autobiographical here if I may. I wrote my doctoral dissertation at Princeton and the title was “Beyond the Reach of Majorities.” It’s a phrase from the second of the flag salute cases. The one in which they overturned a decision just three years earlier, when they had held that it is okay as an exercise of the police power of the state to require Jehovah’s Witnesses children to salute the flag, even though it violated their fundamental beliefs, because the government was saying national unity is a public good.

In his opinion overturning that in West Virginia v. Barnett, Justice Jackson said, “The very purpose of a Bill of Rights was to play certain things beyond the reach of majority’s and above the vicissitudes of politics.” Oliver Wendell Holmes, a great progressive pin-up, said, “If the American people want to go to hell, I will help them, it’s my job.” That is to get out of the way of majorities, of the dominant forces in the community, as he kept saying. Well, I do not believe that, and I think the conservative sensibility rejects the idea that America is about majority rule.

[America is] not about a process majority rule; it’s about liberty. Obviously, majorities should rule where government is going to rule, but the fact is that majorities can be tyrannical, and they can be self-interested. Furthermore, as I argue at length most of what governments do have nothing to do with majorities — they have to do with government responding to compact, articulate, confident, and well lawyered minorities who understand the levers and pulleys of the modern state and manipulate them for their advantage.

This is why I think Elizabeth Warren has a firm grip on half a point. She says, “Look, there is a reason why five of the 10 richest counties in America by per capita income are in the Washington area, Washington doesn’t make anything save laws and regulations and trouble, and has no natural resources. But there are trillions of dollars sloshing through the system here and deflected and controlled by this. And the government often is the captive of these factions.” Then she inexplicably says, “Well, the answer is to make the government very much bigger and very much more involved in allocating wealth and opportunity.” It seems to me that this is just going to make matters very much worse.

Ezra Klein

Let me put a pin in Warren’s answer, because I want to come back to it. But one question your point raises is this: the president of the United States was the runner-up in the popular vote, the Senate is controlled by the party that got fewer votes than the minority party, the Supreme Court is controlled by Republicans, which it wouldn’t be if these things had gone the other way. In a country where the majority controls so little, are we really in danger of tyrannical majority rule?

George Will

You are in danger of tyrannical minority rule inflicted by supposedly majoritarian institutions. It’s particularly evident that at the state level, where you have all kinds of rent seeking, domestic protectionism of various interests, passed by majoritarian institutions, but in no conceivable way responsive to majorities.

The good and bad of gridlock

Ezra Klein

This seems to be then where you do have a deep divergence. One view is to say that in a country where you have this much government and this poor level of responsiveness, you just can’t have this much government without endless corruption. The other view, which tends to be the view of progressives like Elizabeth Warren, is that the government needs to do these things, so we should work really hard on things like anti-corruption and campaign finance reform, which other countries, like the Nordics and Canadians, have done.

The true dividing line is: Do you want to try to manage the problems of capture as you go along, or simply not create all that much to capture? But then in a system built for gridlock, we end up doing neither.

George Will

My view is a gridlock often is not an American problem, it’s an American achievement. That a great many people in the world live under governments they wish were capable of being gridlocked. When the founders went to Philadelphia in 1787, they did not go out to devise an efficient government, the idea would have appalled them. What they wanted was a safe government, to which end they produced three branches of government, two branches of legislative branch, each with its own electoral rhythm and constituencies, judicial review, veto, veto override, supermajority — all kinds of ways to slow the creature down. And yet, I can think of nothing that the American people have wanted intensely and protractedly they did not eventually get.

The idea that we are really hopelessly gridlocked is absurd. People say, “Well, nothing gets done under the Obama administration.” Well, nothing except the largest, most sweeping financial regulation since the 1930s, and the Affordable Care Act, the largest domestic welfare legislation since 1965.

Ezra Klein

We were talking when we started the podcast about how I live in California now. And as a Californian, I have a lot of experience of gridlock. And I always think it’s actually a better metaphor for government than people give it credit for. Because when you have gridlock, what happens is not that nothing moves, it’s that people begin taking weird city streets, and they get places slowly, and they’re angry when they get there. But gridlock does not, as Californians will attest, stop people from going places; it changes how they end up getting there, and makes the experience miserable.

And that seems to me to be true for how American gridlock functions. So, it is true that things do ultimately get done, they’re just worse than they would otherwise be. That said, I disagree that there’s nothing the American people have wanted in an intense and protracted way that they have not gotten. I think truly universal health care is something they’ve wanted and have not gotten.

George Will

Why haven’t they gotten it?

Ezra Klein

Because in America, the institutions through which you would have to push something like that are extremely difficult, whereas in other countries under parliamentary systems, when a political majority is elected based on a promise to create universal health care, they more or less have the power to pass that law. And so in every country, in Western Europe, and Canada, and Japan, where people gave the majority that power, the majority used it. Here, we’ve many, many, many times elected the majority, that promise universal health care, and it is never polled poorly to create universal health care. And it has failed over and over and over again.

Another example of this is immigration reform. George W. Bush tried it, Barack Obama tried it. A majority of the country polled in a million different ways has said they would like a comprehensive immigration reform compromise in which you get more border security and some kind of path to legalization. Yet, under Bush it died in the Senate, and under Obama, it passed out of the Senate and was never brought to a vote in the House because of the fear that it would pass. Now we have Donald Trump, who has only increased the popularity of that idea.

George Will

I think your example of immigration is much stronger than your example of health care. Immigration is such an interesting issue, because a majority of Republicans favor a path to citizenship, not just legalization, but a path to citizenship for the 11 million who are here illegally. The fact that we can’t move on this, does indicate the veto-ocracy we live in. I think that may be [Francis] Fukuyama’s description of us: that we have these extraordinarily efficient blocking mechanisms and institutions.

Should judges have even more power?

Ezra Klein

I want to return to the topic of judicial supervision before we run out of time. You argue for much more expansive version of judicial review. If judges were indeed these supra-political figures, who existed with no allegiance to anything but the Constitution, it would be one thing. But as it is, judges are increasingly highly politicized figures, who come up through a long association with whatever political party ends up appointing them. The fundamental problem of the constitutional structure stems from having two parties competing across branches, as opposed to branches competing with each other. Giving judges much more power seems to only magnify the problem.

George Will

You’re quite right to worry about judges. I worry about everyone who exercises political power and judicial power, all of this. But I’m less afraid of judges than I am of what the administrative state does and what Congress does to enable the administrative state to do what it does. There’s no safety in politics. I just think that at this point in our history, that the court really is for reasons not the ones Hamilton was referring to when he coined the phrase, it is the least dangerous branch.

Ezra Klein

But why? I’d say it’s safer to at least rely on Congress and legislators and others as representing some kind of will. If it’s just the judges making their own arguments, then you end up in this place where the judiciary begins to lose credibility quite quickly, because people disagree with the arguments. And so if you have this kind of judicial review, how do you prevent that from happening?

George Will

What makes the judicial review so much fun, is that uniquely in judicial review, the court has to say why it is doing what it’s doing. It has to reason from precedent and it has to reason from political philosophy. People will often say, “Well isn’t it interesting that Americans don’t do political philosophy? They have the Federalist Papers and nothing much after that.” So absolutely wrong. The Supreme Court reports are where we do political philosophy. Where we reason about the meaning of equality and freedom and justice and all the rest.

So, you have to take the risk, you have to bear the heat, because you are defending a super permanent majority. That is the majority that launched the country, wrote the Constitution and made it possible but difficult to amend.

Ezra Klein

Let me ask you about that. You have a very interesting paragraph on constitutional interpretation. You write that “the threshold question when evaluating any particular mode of construing the Constitution is whether the mode would dictate declaring public school segregation unconstitutional. No acceptable theory for construing the Constitution can invalidate the court’s conclusion in Brown; the conclusion invalidates any theory that rejects it.”

But you also believe we should go back to the founders’ intent, and the founders clearly thought segregation and much worse was constitutional. And the Brown decision itself held that segregation violated the 14th Amendment, which was not added by the founders. It’s hard for me to reconcile the faith you place in arguing from founders’ intent with a threshold test like that one.

George Will

Well, here’s where you and I would differ only on what I’m referring to when I refer to the founders’ intent. What were they trying to produce? They were trying to produce a society, a free society respectful of a vast scope of individual autonomy, exercising natural rights. My doctrine is sort of Living Originalism, in that it’s the original intent, which is broadly libertarian for our society, applied to today’s circumstances.

I love all the recondite hairsplitting on this kind of originalist and that kind of originalist, but I keep coming back to one of the reasons why Scalia described himself as a “faint-hearted originalist.” The Eighth Amendment forbids cruel and unusual punishments. Now we know what was being done to punish people at the time the founders wrote that.

If you simply take the original public meaning of the word cruelty, we would not be able to strike down a law today that allowed branding, cropping ears, flogging, pillorying, etc. But instead we say, “Look what the founders intended, their original intent was to get rid of cruelty.” And we’ve changed our minds about cruelty, and that’s perfectly permissible. But the original intent was still there, that cruelty shall not be practiced in the United States.

Ezra Klein

This is why I find myself so skeptical of your approach. One thing we very much do know about human nature is we all find arguments that appeal to our ends more convincing than those that don’t. There are wrong interpretations of the Constitution that clearly violate the document’s text. But there isn’t a right answer to a lot of hard constitutional problems, there are a range of them. And you end up in a space where what you have is answers that are generated by power and ideology that people are calling constitutional truth.

I think one reason people like me prefer more majority rule is that at least it’s clear what the form of accountability is and how people can change it as opposed to running this dance where the two sides are fighting to death over the Supreme Court, so they can appoint people who agree with them politically, but are good at dressing that agreement up in constitutional language.

George Will

Well, I think you’re a Holmesian, much more presentable than the original, but a Holmesian nonetheless.

Ezra Klein

I often think of myself as a presentable Holmesian.

George Will

Well, good. No, I understand your point, and it comes down often to what do you fear most? And you and I fear different things.

You fear the atrophying of democratic muscles. I fear much more the inevitable capture of sprawling administrative state by determined muscular, skillful, articulate compliment, well-lawyered factions.

My view is very much informed by public choice theory, which reduced to its essence is that people in the private sector try to maximize their interest, often profit, people in the public sector do exactly the same thing. They try to maximize their power. And that if you de-sentimentalize your view of government, you will come to a conclusion that there is more to fear than an attenuation of majority rule.



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