Law and Tradition in America: My Reply

I have a reply to the essays of Professors Bernstein, Levinson, and Stoner up at the Liberty Tradition ProjectFund blog. It is the last in this series, and I’ve enjoyed it very much. Here is a portion from the middle, responding to some of Professor Levinson’s challenging remarks:

It is a somewhat different thing to reply to Professor Levinson, who has earned more attention in this reply by being considerably less sympathetic than my other interlocutors to the value of exploring the relationship of tradition in law. He makes three primary points: 1) My essay was pitched at a sufficiently abstract level so as to be criticized with the aphorism that we are all traditionalists in America so long as we are essentially liberal Progressives (or libertarians). 2) American Founders such as the authors of the Federalist Papers were revolutionaries, not traditionalists, so that the predominant American political-legal tradition is liberal Progressivism, if not radicalism. 3) To the extent a non-liberal-Progressive traditionalism has been part of American intellectual history, it has been responsible for terrible things—slavery most prominent among them—that have rightly been abandoned.

As to the first point, it is difficult to think of anybody (not even Professor Levinson’s traditionalist incarnation, Edmund Burke, would qualify) who holds that a positive view of tradition implies or requires stasis or the total absence of change. Even for those, like Burke, well-disposed to adhere to past patterns of behavior, it is necessary to devise new ones if only because the situations to which those traditional patterns must be applied are different than those that preceded them—“confirming the wisdom of what remains,” as Professor Stoner has it. At any rate, though the relationship between tradition and social change is complex, at least this much may be said: It is not a one-sided affair. It is not all tradition and no change or progress. Otherwise, we would all be liberal Progressives.

Perhaps the differences between Professor Levinson and me are therefore more matters of mood, disposition, or emphasis. He lights up at those moments in American culture and history in which people exercise their freedom to “denounce” the inheritance of the past. It is probably fair to say that I find such moments less electrifying, though I agree with Professor Levinson that they do exist.

I offer the Madison of the National Bank controversy. He counters with the Madison of Federalist 14 (though I might observe that a “decent regard to the opinions of former times” is not the same as an indecent contempt for them).

I could parry with language in Federalist 15 (“experience” as “the best oracle of wisdom”) or the very final Federalist 85 (“No human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work.”). Or even Federalist 2, in which John Jay notes with some pride that “Providence” has seen fit to give the country to a people “very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long ad bloody war, have nobly established general liberty and independence.”

Doubtless Professor Levinson would have a riposte at the ready, and so it would go on. He characterizes these as internal “contradictions” within The Federalist but they may simply be different features of the moral and political experience of these three authors, each representing its own portion of wisdom. Many of them do not vindicate liberal Progressivism in the least.

In fact, it severely distorts the American Founding to call it either committed to a liberal Progressive ideological program or rabidly radical. True, there were elements of the Old World that were cast off by the new nation, but as historians from Forrest McDonald to Eric Nelson have (in their own ways) shown, the temper of the American Founders may have been even more traditionalist than their English progenitors. Early Americans were the inheritors of an English constitutional traditionalism that was centuries old. Their revolution was motivated by the Crown’s denial of what they perceived as their traditional, ancient rights as Englishmen, rather than by the desire to denounce and exchange those rights for something altogether and radically different. What they desired for themselves was what they already knew well as the tradition of self-government in liberty.

The English Bill of Rights was a model for ours, just as the Act of Union was a model for our federalism. As Greg Weiner has put it in his fine recent essay for Law and Liberty, “Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).” Tradition and change were at least equally parts of their political and intellectual constitution. As they should be (but regrettably are not) of ours.

Liow, “Religion and Nationalism in Southeast Asia”

This month, the Cambridge University Press releases “Religion and Nationalism in Southeast Asia,” by Joseph Liow (Nanyang Technological University).  The publisher’s description follows:

Religion and nationalism are two of the most potent and enduring forces that have shaped the modern world. Yet, there has been little systematic study of how these two9781107167728 forces have interacted to provide powerful impetus for mobilization in Southeast Asia, a region where religious identities are as strong as nationalist impulses. At the heart of many religious conflicts in Southeast Asia lies competing conceptions of nation and nationhood, identity and belonging, and loyalty and legitimacy. In this accessible and timely study, Joseph Liow examines the ways in which religious identity nourishes collective consciousness of a people who see themselves as a nation, perhaps even as a constituent part of a nation, but anchored in shared faith. Drawing on case studies from across the region, Liow argues that this serves both as a vital element of identity and a means through which issues of rights and legitimacy are understood.

Dauber, “State and Commonwealth”

This month, the Princeton University Press will release “State and Commonwealth: The Theory of the State in Early Modern England, 1549–1640,” by Noah Dauber (Colgate University).  The publisher’s description follows:

In the history of political thought, the emergence of the modern state in early modern England has usually been treated as the development of an increasingly centralizing k10754and expansive national sovereignty. Recent work in political and social history, however, has shown that the state—at court, in the provinces, and in the parishes—depended on the authority of local magnates and the participation of what has been referred to as “the middling sort.” This poses challenges to scholars seeking to describe how the state was understood by contemporaries of the period in light of the great classical and religious textual traditions of political thought.

State and Commonwealth presents a new theory of state and society by expanding on the usual treatment of “commonwealth” in pre–Civil War English history. Drawing on works of theology, moral philosophy, and political theory—including Martin Bucer’s De Regno Christi, Thomas Smith’s De Republica Anglorum, John Case’s Sphaera Civitatis, Francis Bacon’s essays, and Thomas Hobbes’s early works—Noah Dauber argues that the commonwealth ideal was less traditional than often thought. He shows how it incorporated new ideas about self-interest and new models of social order and stratification, and how the associated ideal of distributive justice pertained as much to the honors and offices of the state as to material wealth.

Broad-ranging in scope, State and Commonwealth provides a more complete picture of the relationship between political and social theory in early modern England.