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Constitutional Conservatism: Liberty, Self-Government, and Political Moderation

Constitutional Conservatism: Liberty, Self-Government, and Political Moderation

by Peter Berkowitz

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Peter Berkowitz identifies the political principles social conservatives and libertarians share, or should share, and sketches the common ground on which they can and should join forces. Drawing on the writings of Edmund Burke,The Federalist, and the high points of post-World War II American conservatism, he argues that the top political priority for social conservatives and libertarians should be to rally around the principles of liberty embodied in the US Constitution and pursue reform in light of them.

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Product Details

ISBN-13: 9780817916060
Publisher: Hoover Institution Press
Publication date: 09/01/2013
Series: Hoover Institution Press publication ;
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 146
File size: 355 KB

About the Author

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, where he chairs the Koret-Taube Task Force on National Security and Law. He was cofounder and director of the Israel Program on Constitutional Government, has served as a senior consultant to the President's Council on Bioethics, and is a member of the Policy Advisory Board at the Ethics and Public Policy Center.

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Constitutional Conservatism

Liberty, Self-Government, and Political Moderation

By Peter Berkowitz

Hoover Institution Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8179-1606-0


Seizing the Moment, Renewing the Legacy

To make a government requires no great prudence. Settle the seat of power, teach obedience, and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein. But to form a free government, that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought, deep reflection, a sagacious, powerful, and combining mind.

— Edmund Burke, Reflections on the Revolution in France

After their dismal performance in the 2008 election, conservatives had reason for gloom. They also had reason to take heart. After all, the election showed that the American constitutional order was working as designed. The Constitution presupposes a responsive electorate, and respond the electorate did: to a spendthrift and feckless Republican Congress; to a stalwart but frequently ineffectual Republican president; and to a Republican presidential candidate who — for all his mastery of foreign affairs, extensive Washington experience, and honorable public service — proved incapable of crafting a coherent and compelling message.

Both the election of Barack Obama as president and the electorate's response to the conduct of the Obama administration in office provided further reason to appreciate our constitutional order's vitality. Americans left and right justly took pride in President Obama's historic victory. His emergence from obscure origins to become the first African American to occupy the nation's highest office testified to abundant opportunity in America. Entering office in late January 2009 with a 68 percent approval rating, President Obama embodied a stunning refutation of the calumny promulgated by many progressive intellectuals. As late as spring 2008, some continued to declare in private and to whisper in public that their fellow citizens were too racist to elect a black man president.

But politics, certainly the politics of liberal democracy in America, does not stand still. In late 2009 and early 2010, the people of three states whose electoral votes went to candidate Obama in 2008 delivered a reproach to President Obama's administration, particularly its dramatic increases in government spending, its projected massive enlargement of the annual deficit and the national debt, and its plans for a sweeping overhaul of health care. In gubernatorial contests in November 2009, Virginia elected Republican Bob McDonnell and New Jersey elected Republican Chris Christie. A few months later, in Massachusetts' January 2010 special election, Republican Scott Brown won the Senate seat that Democratic icon Edward M. Kennedy held for forty-seven years. On the campaign trail, Brown had vigorously opposed the president's signature health care legislation.

Democrats defied the voters' message. In March 2010, despite polls showing opposition by a majority of the public, Congressional Democrats proceeded to narrowly pass broad health care reform legislation on a strict party line vote and by means of an obscure procedural maneuver. President Obama promptly and triumphantly signed into law the Affordable Care Act.

Well before the end of Obama's first year in office, many independents — who voted for him in significant numbers — began to feel deceived by the far-reaching progressive agenda the president had unveiled once safely ensconced in the White House. To be sure, Senator Obama's campaign mantra of hope and change signaled large, if vague, ambition, and in the campaign's homestretch he told an adoring crowd, "We are five days away from fundamentally transforming the United States of America." Yet candidate Obama also cultivated the image of a moderate in style and substance, a pragmatist and problem-solver, a prudent steward of the country's finances, and a leader who aspired to reach out across the aisle and represent conservative voices and outlooks, too. President Obama's tenacious pursuit of costly and comprehensive health care reform throughout 2009, despite a severely weakened economy, and into 2010, against the wishes of an increasingly mobilized electorate, dramatized the priority he gave to progressive transformation.

This is not what independents who voted for Obama in 2008 bargained for, to say nothing of conservatives who voted for McCain. Those who opposed President Obama's transformative agenda argued, organized, held town-hall meetings, and rallied. In the momentous November 2010 midterm elections, they gave Republicans a substantial majority in the House and significantly narrowed the gap with the majority Democrats in the Senate, effectively providing Congressional conservatives the power to check much of the president's progressive policy making. A year and a half later, in June 2012, the voters of Wisconsin rejected the public union–led effort to recall Republican Governor Scott Walker, who had made good on his campaign promise to rein in public unions by curbing their collective bargaining rights and compelling them to pay a larger share toward their health care insurance and retirement benefits. In November 2012, however, President Obama gained a narrow victory over Mitt Romney, even as Republicans successfully returned a sizable blocking majority to the House of Representatives and achieved historic majorities both in governorships and in state legislatures.

Needless to say, conservatives too have been guilty of overreach, reflected in a proclivity to believe that what was most needed was greater purity in conservative ranks. Following Obama's 2008 victory and a major loss of Republican seats in that year's Congressional elections, some social conservatives pointed to successful ballot initiatives in Arizona, California, and Florida that rejected same-sex marriage as evidence that the country had remained socially conservative, and that deviation from the social conservative agenda accounted for GOP electoral setbacks. The purists, however, conveniently overlooked the trend lines. In California's 2000 ballot initiative, 61 percent of voters rejected same-sex marriage, but in 2008, opposition in the nation's most populous state fell to 52 percent. Notwithstanding North Carolina's decision in 2012 to restrict marriage to heterosexual couples, the data show that the public is steadily growing more accepting of same-sex marriage: national polls indicate that opposition, including that of conservatives, is strongest among older voters and declines as voters' age decreases. In November 2012, voters in Maine, Maryland, and Washington became the first to legalize same sex marriage through state-wide elections.

Meanwhile, by the end of George W. Bush's second term, many libertarians had grown disgusted by Republican profligacy. They were discomfited by, or downright opposed to, the Bush administration's support for a constitutional amendment banning same-sex marriage. They also disliked the Bush administration's continuation of the moratorium on government funding of embryonic stem cell research, which had been in place in one form or another almost continuously since the Reagan administration. And they were angered by the intensive Republican-led intervention by the federal government in 2005 to prevent Terri Schiavo's husband from lawfully removing the feeding tubes that for 15 years had kept his wife alive in a persistent vegetative state. Some of these libertarians went so far as to entertain dreams of repudiating social conservatives and forming a coalition with moderate Democrats. That dream was quickly dashed by President Obama's big-spending ways.

The purists in both camps ignored simple electoral math. Slice and dice citizens' opinions and voting patterns in the fifty states as you like, neither social conservatives nor libertarians can fashion a majority without the aid of the other.

Nevertheless, the quest for purity resurfaced in the 2012 Republican primaries. At one time or another, and sometimes as a group, Tim Pawlenty, Ron Paul, Michelle Bachman, Rick Perry, Herman Cain, Rick Santorum, Newt Gingrich, and their supporters denounced Mitt Romney for a variety of conservative impurities. In part, the raucous campaign for the GOP nomination reflected the ordinary rough and tumble of democratic politics. In part it reflected Romney's struggle to clarify his positions and define his agenda. And in part it presented the embarrassing spectacle of Republican hopefuls and their enthusiasts forming a circular firing squad with the party's leading contender in the middle. Underlying the excesses was a failure to grasp principle, or rather to grasp that conservatism in America comprises a family of rival and worthy principles that require accommodation — to each other, to the exigencies of the moment, and to the changing habits and opinions of the American people.

Understanding this family of principles is critical to grasping why social conservatives, libertarians, and the neoconservatives who are also crucial to conservative electoral hopes and political fortunes, do not merely form a coalition of convenience. Because the principles are inscribed in the American Constitution and the political theory that underlies it, the task of conserving them deserves the name constitutional conservatism.

Constitutional conservatism well understood puts liberty first and teaches that political moderation is indispensable to securing, preserving, and extending liberty's blessings. The American Constitution it seeks to conserve presupposes natural freedom and equality. It draws legitimacy both from democratic consent and from the protection of individual rights — particularly those of religion, speech, assembly, and property. It limits and enumerates government's powers while furnishing government with the incentives and tools to discharge its responsibilities effectively. It reflects and refines popular will through a complex scheme of representation. It provides checks and balances by dispersing and blending power among three distinct branches of the federal government, as well as among the federal and state governments. It assumes the primacy of self-interest but also the capacity of and necessity for citizens to rise above it through the exercise of virtue. It welcomes a diverse array of voluntary associations because they are an expression of liberty, to prevent any one from dominating, and because they serve as schools for the virtues of freedom. And it recognizes the special role of families and religious faith in cultivating these virtues.

Constitutional conservatism belongs to a distinguished tradition of defending liberty. It finds instruction and inspiration in the eighteenth-century speeches and writings of British statesman Edmund Burke, who is regarded as the father of modern conservatism, though it would be more accurate to describe him as the father of that form of modern conservatism devoted to the conservation and correction of liberty. It is embedded in the American Constitution and flows out of the ideas elaborated most compellingly in The Federalist, the masterpiece of American political thought the immediate purpose of which was to persuade New York voters in 1787 and 1788 to ratify the Constitution, and whose persuasive force stemmed in significant measure from the quality of its reasoning about the enduring principles of self-government. And constitutional conservatism is exhibited in the high points of the post–World War II renewal of conservatism in America, including the writings of eminent public intellectuals such as Friedrich A. Hayek, Milton Friedman, Russell Kirk, Whittaker Chambers, William F. Buckley Jr., Frank S. Meyer, and Irving Kristol, and in the speeches and actions of such seminal political figures as Barry Goldwater, Ronald Reagan, Newt Gingrich, and George W. Bush.

When applied in the spirit of political moderation out of which they arose, the principles of constitutional conservatism are crucial to the restoration of an electorally enduring and politically responsible conservatism. As in all large families and vibrant traditions, clashes over priorities and policies will persist. Yet rallying around the principles of liberty on which the nation was founded is the best means over the long term to conserve the political conditions hospitable to traditional morality and religious faith. It is also the best means over the long term to conserve the political conditions that promote free markets and the prosperity and opportunity free markets bring. And a constitutional conservatism provides a sturdy framework for developing a distinctive reform agenda to confront today's challenges — an agenda that both social conservatives and limited government conservatives, consistent with their highest hopes, can and should embrace.


Burke:The Conservation and Correction of Liberty

Feuding among American conservatives for the title True Conservative is nothing new. Ever since conservatism in America crystallized as a recognizable school in the 1950s, more than a few libertarians and more than a few social conservatives — and their forebears, traditionalist conservatives — have wanted to flee from or banish the other. To be sure, the passion for purity in politics is perennial. But the tension between liberty and tradition inscribed in modern conservatism has exacerbated the stress and strain in the contending conservative camps. Fortunately, a lesson of political moderation is also inscribed in the modern conservative tradition, and nowhere more durably or compellingly than at its beginning.

Moderating the tension between liberty, or doing as you please, and tradition, or doing as has been done in the past, is a hallmark of the speeches and writings of eighteenth-century British statesman Edmund Burke. While the conservative spirit is enduring and while some have always been more amply endowed with the inclination to preserve inherited ways and others more moved by the impulse to improve or supersede them, the distinctively modern form of conservatism emerged with Burke's 1790 polemic, Reflections on the Revolution in France. Writing as a friend of liberty and enlightenment, Burke eloquently exposed the brutality of the revolutionaries' determination, inspired by a perverse understanding of liberty and enlightenment, to transform political life by upending and sweeping away tradition, custom, and the inherited moral order. Burke's conservatism operates within the broad contours of the larger liberal tradition and embraces much of the spirit of the eighteenth-century Enlightenment. It is distinguished by its determination to moderate the tendencies toward excess that mark both liberty and reason.

Burke's devotion to "a spirit of rational liberty" drives the great reform efforts of his political career: conciliation with America, toleration for Ireland's Catholics, and protection of the interests and rights of the people of India. But even if we had only the Reflections, he would still deserve to be counted among our preeminent teachers concerning the balance of principles that favors liberty.

The causes to which Burke dedicated himself, and the well-wrought arguments he summoned in their behalf, teach that the paramount political task is to defend liberty. They also illustrate that while the purpose of politics is not to perfect man, securing the rights shared equally by all depends on tradition, religion, and community cultivating the virtues that fit citizens for freedom. And they clarify how the rival interests, multiplicity of groups and associations, and competing conceptions of happiness that characterize free societies make accommodation, balance, and calibration indispensable to the conservative mission. Burke's storied career demonstrates that political moderation is not only consistent with but essential to vindicating the principles of liberty.

Liberty and the French Revolution

Burke's Reflections on the Revolution in France is the work of a Whig who cherished freedom and, in the name of individual liberty, sought throughout his long parliamentary career, in battles with the Tories as well as with fellow Whigs, to limit the political power of throne and altar. But to limit is not to abolish, and can be consistent with cherishing, as it was in Burke's case. He saw that within proper boundaries, religious faith disciplined and elevated hearts and minds, and monarchy upheld the continuity of tradition, reflected the benefits of hierarchy and order, and provided energy and agility in government. Both institutions, in his assessment, encouraged virtues crucial to liberty's preservation.


Excerpted from Constitutional Conservatism by Peter Berkowitz. Copyright © 2013 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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Table of Contents


1 Seizing the Moment, Renewing the Legacy,
2 Burke: The Conservation and Correction of Liberty,
3 The Federalist: Constitutionalizing Liberty,
4 Constitutional Conservatism in America: Recovering Liberty,
5 A Way Forward,
About the Author,
About the Hoover Institution's Boyd and Jill Smith Task Force on Virtues of a Free Society,

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