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In Defense of Proceduralism

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In Defense of Proceduralism

National Review September 18, 2020
Legal ReformOther

What today’s post-liberals risk losing

An emerging strand of anti- or post-liberal thought has set off an important debate on America’s political right. These critics often charge that classical liberalism, which a number of us have considered foundational to American conservative thinking, fetishizes individual autonomy. That leads, the argument goes, to personal atomization, social aimlessness, and cultural decadence. Many of these critics would prefer a political system that prioritizes solidarity, stability, and a particular vision of the common good over individual freedom.

I think the more extreme of these post-liberal arguments risk undermining the invaluable philosophical progress made over centuries in elevating citizens above the state. But this debate is more than a seminar-room dispute about theories and Enlightenment-era figures. It also has a direct bearing on how American conservatives who are actually engaged in governing today go about their work.

Post-liberalism and its relatives directly challenge what I would call the “proceduralism” of American conservative governing. Unlike other nations, where conservatism aims primarily to preserve a longstanding religious, cultural, and/or governmental order, America’s conservatism has also evolved a set of rules for wisely administering the state. These procedures include liberalism, federalism, localism, traditionalism, prudentialism, capitalism, volunteerism, originalism, textualism, and democratic-republicanism. In combination, they help our right-of-center officials translate concepts into action. They enable governing leaders to navigate the real-world challenges that confront the state.

American conservatives have generally understood that these mutually reinforcing processes are essential for producing, adapting, and conserving the things that are necessary for human flourishing. This includes everything from customs and norms to family structure and voluntary associations to democratic deliberation and positive law. So American conservatism hasn’t just been a way to build a fortress around things that have been handed down to us. It has also taught us how to assess our patrimony, pursue needed change, respond to unexpected occurrences, foster the development of new practices, and judge reform proposals.

To be more specific, when an issue of public significance arises, American conservatism encourages our leaders to consider whether authority is being vested in those proximate to the problem, whether the people and their representatives are driving policy, whether the wisdom found in diverse practices and traditions is respected, whether nongovernmental bodies are adequately engaged, whether we are responding to conditions judiciously, and so on. By focusing attention on key matters of process with questions that suggest the right answers, American conservatism helps our public officials govern smartly and consistently. It is important, I think, to recognize how post-liberalism and several distinct but related ideologies gaining strength on the right (e.g., nationalism, populism, Catholic integralism) contest such laudably leading questions. 

I do not raise this as a philosophical matter. My point is that it becomes all but impossible to develop a coherent American-conservative governing agenda if we jettison the rules of thumb for American-conservative governing. We’ll be left with vague admonitions (“Protect American workers,” “Support the family”) that offer little guidance to those actually participating in the work of public leadership. Should they support a universal basic income, blue laws, state-run child care, prohibitions on gambling, federal paid family leave, public housing, free post-secondary education, a larger administrative state, tariffs, and state aid to nonprofits?

As worrisome, in my view, is that some of the post-liberal Right’s priorities seem to have gained steam through online communities instead of through the quotidian, formative work of self-government (e.g., running for county legislature, forming clubs and organizations). When these ideas are turned into policy proposals, too often they recommend increasing the power of central-government bodies. Indeed, abstract thinking often leads to centralizing tendencies; and ceding power to central authorities can be a way of dodging the hard work of practical, local self-governing. The proceduralism of American conservatism, however, cultivates civic virtues that instill in citizens the rights and duties of individuals and communities.

It is worth remembering why these procedures have emerged and endured. They didn’t fall from the sky, and they aren’t a random assortment of propositions.

In political science, “proceduralism” often means that a system generates results that are legitimate. That is, we see the outcomes of fair elections as legitimate because they were produced by democratic procedures; we see legal verdicts as legitimate because of the rules of criminal or civil procedure. The procedures of American conservatism are different in that they are largely instrumental instead of legitimizing; they evolved to help us achieve desirable outcomes. The components of American conservatism are what we might call “civic heuristics,” general rules for citizens and public officials to follow when engaged in the public’s business.

They are the fruits of experience. They aren’t merely a matter of revelation, and they aren’t the natural products of reason. They are responses to what societies have learned about human nature and human society, particularly about the inescapability of human imperfection, the necessity of personal agency, and the dangers of concentrated power. In that sense, there is something universal about them. But they are also — as all meaningful conservative approaches are — particular to a distinct place and history. America is a diverse, continental nation with anti-authoritarian, pro-self-reliance, and pro-civil-society sentiments embedded in its DNA. We have learned lessons from the City upon a Hill and the Founding era, through Tocqueville and Manifest Destiny, through Lincoln and Reconstruction, through industrialization and isolationism, through the Great Depression and the New Deal, through World War II and the Cold War, through Reagan and the Great Recession.

The procedures of American conservatism ensure that the people and their associations are empowered and that authority isn’t centralized in the hands of inevitably flawed leaders. Said another way, these procedures enable citizens to rule themselves without the presumptuous intervention of faraway authorities who always believe they know best. Federalism and localism stop power from gravitating toward distant, obtuse administrators in Washington. Democratic-republicanism ensures that the people and their representatives, instead of pseudo-scientific technocrats, make decisions. Textualism and originalism prevent elite judges from substituting their sensibilities for those of the people. Liberalism protects individuals and their associations from statist diktats. Capitalism relies on private ownership, markets, and the price system, not economic micromanagers. Volunteerism creates a nongovernmental sector that prevents the state from dominating our lives. Traditionalism privileges the knowledge accumulated over time above the vogue fancies of current “experts.” Prudentialism cautions against sudden, uniform, wide-ranging change to the existing order by hot-headed pundits and panicked officials.

When these procedures are respected, an overarching system results that is differentiated, supple, and transparent. A universe of institutions emerges — everything from regional customs, faith traditions, and local ordinances to community associations, governing bodies, and codes of personal conduct. A variety of communities can define, pursue, and protect their understandings of the good life. And the consequences of policies and practices are on full display. We needn’t be neutral or agnostic about the choices individuals or communities make. We can continually inspect and interrogate them, correcting mistakes and amplifying successes.

Perhaps most important, though, these procedures enable conservatives to conserve. Citizens use their liberty to create traditions and associations that can then be protected and adjusted to match changing conditions. They use their small-scale democratic powers to codify time-tested local beliefs and then alter them as necessary. Sturdy but adaptable traditions, institutions, habits, and practices — the stuff of conservative life — are the consequence.

Two things stand out about the several budding brands or styles of right-of-center thinking. The first is how each can be seen to be at odds with a distinct element of American-conservative proceduralism. Post-liberals contest liberalism. Nationalism can draw attention away from states and localities and toward Washington. Alarmist, intemperate discourse thwarts prudentialism. The novel “common-good constitutionalism” takes aim at originalism and textualism. Those advocating significant state interventions in the economy are questioning some elements of laissez-faire.

I don’t want to overstate my case. Many critics of liberalism still believe in some liberal values; plenty of nationalists still believe in decentralization; many advocates of tariffs or wage subsidies still believe in capitalism. My point is that, at minimum, bringing into question our rules of thumb for governing leaves conservative officials in the lurch. When making real decisions affecting real lives, should our leaders’ starting point be natural rights, tradition, federalism, localism, incrementalism, a steady disposition, the text of the Constitution and statutes, and a very limited government role in the economy? If not, what are the actionable substitutes? Once today’s heady debates about conservative concepts make their way into matters of governing, complications abound.

The second issue is that these emerging lines of conservative thinking share a worrisome level of overconfidence. For generations, American conservatism could be counted on to stand against elite know-it-alls. American conservatism opposed socialists who thought they could centrally manage the economy and Communists who thought they could centrally manage society. We opposed bossy courts that, believing their virtue and judgment to be superior to those of the people, overturned democratically legitimate laws that were based on ages of tradition. We opposed scientism’s technocrats and social psychology’s nudgers who believed they could fix citizens’ faulty decision-making.

I worry that elements of the new Right are showing the same troubling hubris that we see in the progressive Left. Opposing classical-liberal traditions that foster pluralism and the organic development of diverse customs implies that you know the proper answer to key questions. Advocating a bulked-up role for Uncle Sam in the economy suggests that you know the right outcomes and how to adjust the knobs to get them. Vesting more power in Washington intimates that we just need the right people in authority. Dispensing with the will of the people in the name of the “common good” indicates that you know for sure what the common good is.

American conservatism has historically been based on greater humility than this. We know humans are flawed, so we resist the consolidation of power. We know that we and our friends might be wrong, so when we possess state authority, we move gradually and talk prudently. We know that the pressure-tested habits, traditions, and norms handed down to us may very well possess more wisdom than the stylish notions of the day. Our procedures — designed to distribute power, protect pluralism, respect inheritance, foster civil society, and so on — weren’t dreamed up on a lark. Experience taught us that this was the path to maximizing the potential for flourishing in a diverse, continental nation with a bent for freedom and voluntary association. We should be hesitant to replace this architecture with one premised on the belief that greater health and happiness will flow from putting more power in the hands of certain people who know best.

That replacement project would inevitably lead to the same types of problems that the procedures of American conservatism were designed to fix. The enlightened leaders who are promised to us are never as wise as they think they are. Central plans will fail to deliver the results envisioned while producing all sorts of unintended consequences. Consolidated power and uniform solutions will frustrate America’s varied, independent-minded citizenry. Imprudent thinking and language will lead to rash action and radioactive politics. Let us not force today’s and tomorrow’s conservative governing leaders to relearn — the hard way — the dangers of leaning into state power.

Warranted frustration on the right has energized these emerging lines of thought. Conservatives who care about the plight of blue-collar workers, the deterioration of the two-parent family, and the weakening of mediating bodies should raise questions about the Right’s political strategies and tactics. Moreover, standing up for procedures can feel like unilateral disarmament when your opponents simply apply brute force. It’s not unreasonable to ask why we fight for the concepts of self-government and a restrained judiciary when the Left happily pursues its priorities through activist courts and the federal administrative state. “Enough is enough,” one might say. “If this is just about power, then power it is. If you want to read your worldview into the Constitution, then we’ll do the same; if you want to advance your agenda through a muscular central government, then we’ll do the same.”

But that, I believe, misunderstands the problem. The Right won’t produce the outcomes it desires — family and community bonds over atomization; attachments to voluntary associations and local institutions over obedience to the state; variety over homogeneity; dynamism over sclerosis; practitioner wisdom and custom over technocracy; ordered liberty over authority — by playing the game of power. That would only accelerate the trends of uniformity, statism, and alienation, frustrating our long-range aims.

The Right’s failure to achieve many of its goals is not because of its faith in procedures but because, too often, we have acted as though the procedures themselves would automatically generate the political and social outcomes we wanted. But the rules of the game are different from the players. Processes are different from inputs. In other words, these procedures are necessary, but they are not sufficient. To produce the outcomes we desire, they require conservatives’ concerted civic engagement.

An essential component of citizenship is active participation in the life of the polity. Those on the right who are concerned about the direction of the nation would do far more good by personally engaging in the affairs of the state than by undermining the procedures of American conservatism. Our republic demands a great deal of its people — not just voting, but also running for office, serving in public capacities, participating in charitable causes, volunteering. Of course, it would be far more convenient to dispense with such duties and simply elevate authoritarians with whom we agree to take care of the public’s business for us. But centuries of experience across countless societies demonstrate the costs of such convenience. Not only does it lead to extreme measures and despotic rule, it also robs the people of the opportunity to develop civic virtue. The practice of self-government shapes us into better citizens and neighbors.

The participation needed now from conservatives can be thought of in terms of making our procedures deliver the results we want. Federalism and localism work only if conservatives run for state and local office, serve in state and local capacities, and advocate policies at the state and local levels. The benefits of civil society are realized only if citizens dedicate themselves to existing voluntary associations and start new local institutions. Textualism is only as good as the text of the statutes passed by our legislatures. Prudence in a polity is valuable only to the extent that its citizens have fostered social and economic conditions that are worthy of preservation.

If a local board of education adopts objectionable policies, the recourse is engagement in school-board elections and hearings, not appeals to higher levels of government to overturn local decisions. If public opinion is trending away from our preferences, the recourse is stronger, smarter advocacy, not anti-democratic or illiberal measures. If the faithful interpretation of a statute leads to disagreeable outcomes, the recourse is electing better officials who will write better statutes, not a newfangled interpretive theory that enables us to override the will of the electorate.

The procedures of American conservatism can ward off statism, empower citizens, facilitate community action, and protect faith communities. But while civil society is powerful, barns don’t raise themselves. Freedom of association is invaluable, but citizens have to choose to associate. Charter-school laws and school-choice programs make space for alternative education programs, but someone has to create the schools.

The frustration felt by many on the right regarding the direction of the nation is understandable. But it would be a mistake to respond with overconfident governing that purports to be for the people when the time-tested procedures of American conservatism ensure that it is of and by them, as well.

This piece originally appeared at the National Review

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Andy Smarick is a senior fellow at the Manhattan Institute. Follow him on Twitter here.

Photo by Galina Shafran/iStock

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