A review of Constitutional Conservatism: Liberty, Self-Government, and Political Moderation (Hoover Institution Press Publication), by Peter Berkowitz

Peter Berkowitz, a senior fellow at the Hoover Institution, is a fusionist who dislikes the label. He believes that neither social conservatives nor economic conservatives can form a successful electoral majority alone. Each needs the other for deeper reasons as well, because liberty and good character depend on each other. In these respects Berkowitz follows Frank Meyer, an early National Review senior editor and leading advocate of conservative fusionism. He objects to the term

because it implied that classical liberalism and traditionalism could only be held together by a mysterious cosmic force. A better name for what Meyer espoused would be constitutional conservatism. It more accurately captures his grounding of conservatism in America's founding ideas, and the intellectual coherence of the alliance in American politics he forged between partisans of limited government and partisans of tradition.

In that alliance liberty has priority over but is tempered by tradition.

Moderation, understood both as balance and intellectual humility, is central to Berkowitz's constitutional conservatism. The constitutional-conservative statesman must balance the claims of liberty, tradition, and other public goods; he must accept the limits set by public opinion without slavishly following it. Berkowitz's model constitutional conservative is Edmund Burke, who pressed forward the claims of liberty in England's imperial possessions while resisting a dangerously unbalanced conception of liberty in revolutionary France. "A state without the means of some change is without the means of its conservation"—such is the characteristic insight of Berkowitz's Burke.

For sentences to be loved they must be lovely, and Berkowitz achieves one of his loveliest passages in discussing Burke.

The virtue of political moderation is often mistaken for a compromise with virtue, a softening of belief, a diluting of passion, a weakening of will, even an outright vice. But those are examples not of political moderation but of the failure to achieve it. Moderation in politics is not a retreat from the fullness of life but an embrace of it. Political moderation is called into action by the awareness of the variety of enduring moral and political principles; the substantial limits on what we can know and how effectively and justly we can act; the range of legitimate individual interests; the multiplicity of valuable human undertakings and ends; and the quest to discern a common good in light of which we can make moral distinctions and establish political priorities.

This confusion over the meaning of moderation, Berkowitz writes (again citing Burke) is the stock in trade of its demagogic enemies.

* * *

The chief virtue of the U.S. Constitution, according to Berkowitz, is that it institutionalizes moderation in the service of liberty. It is itself a series of compromises: between advocates of state sovereignty and of national power, between small states and large, between advocates of a strong and a weak executive, between democracy and aristocracy—and, he must note, between the moral truth about slavery and the political impossibility of eradicating it in 1787. By dividing powers, the Constitution enables the constant balancing of competing goods that fusionism requires. It protects liberty by systematically preventing an immoderate spirit from animating the entirety of government.

Although conservatives have not always appreciated or acted on the genius of political moderation, their greatest triumphs have come when they have. William F. Buckley, Jr., may not have engaged in much "effort to sort out the theoretical tensions between liberty and tradition," writes Berkowitz, but he "brilliantly demonstrated" how they co-exist in practice. Barry Goldwater was more moderate than he himself knew, favoring, in his own words, a freedom "balanced" with order even as his "rhetorical flourishes encouraged dangerous and persistent misconceptions among conservatism's critics as well as among conservatives themselves." Ronald Reagan, too, was a balancer, acting with both prudence and morals in foreign policy, advancing freedom and protecting the safety net at home. Newt Gingrich's "Contract with America" was moderate, this time in the more familiar sense of not seeking "to drastically alter relations between the federal government, state governments, and the people."

Berkowitz offers two pieces of general advice for conservatives who seek to keep this constitutionalist spirit alive, advice that is itself nicely balanced. Liberty-loving conservatives are told to speak of "limited" rather than "small" government: The "welfare and regulatory state" cannot be "dismantle[d] or even substantially roll[ed] back," having become itself a kind of tradition. Because of social change, meanwhile, he tells conservatives in the traditionalist camp to "refrain from attempting to use the federal government to enforce the traditional understanding of sex, marriage, and the family."

* * *

The mood of Berkowitz's book is considerably sunnier than that of most self-described constitutional conservatives, and perhaps his mood better deserves the label than theirs. After all, for Berkowitz the task of conservatives is precisely to conserve the liberty-directed spirit of moderation that the Constitution both reflects and commands: to keep the balancing act going through the gale of events. Many conservatives conceive their task rather differently, as the reclamation of a Constitution that modern government has in important respects abandoned.

"The Constitution has done more than endure," he writes. "Well into its third century, the Constitution's experiment in democratic self-government may reasonably be pronounced a remarkable success." All patriotic conservatives will agree with this expression of reverence. Many would add, however, that we are not doing so well in the humbling—and in that sense, moderating—practice of obedience to the Constitution. Our welfare state is at the very least in tension with the founders' ideas of liberty and self-government. Its institutional arrangements—agencies that commingle legislative, judicial, and executive functions; vast programs over which the states and the federal government exercise joint authority—are very different in form and effect from the ones the Constitution contemplates.

Conservatives who harbor more doubts than Berkowitz about the constitutional legitimacy of contemporary government practices will not be reassured by his discussion of the federal judiciary. He notes that the founders wanted the courts to protect freedom but without acquiring too much power of their own. It may seem, he concedes, that the courts are not as harmless as Alexander Hamilton suggested they would be. Berkowitz parries: "Yet the people continue to retain ultimate responsibility for securing liberty." If judges exceed their bounds the people can elect presidents and senators who will replace them with more self-effacing successors; the people can also amend the Constitution. He allows that it is not easy to do these things, but argues that the difficulty of changing the courts is itself part of the Constitution's moderation.

* * *

Hamilton's comment that the courts would have no influence over either the sword or the purse can be read to suggest that any improper accumulation of power by them is ultimately the fault of the people and the officials they elect. This view fits well with Berkowitz's own. It may be, though, that the people can keep the courts in check only by cultivating a fierce rather than a moderate attachment to their own right to govern themselves. Which is a way of raising a more general question to which Constitutional Conservatism leads: if our actual practice of government does not comport with the Constitution in crucial respects, can we rectify that situation while following its moderate virtues? Or is the project of reclamation necessarily reactionary rather than conservative, and incompatible with those virtues? And in that case, what is to be done? Would the constitutional conservatism Berkowitz has in mind stand athwart History, yelling stop?

On the evidence of this thoughtful and engaging book, not to mention his other writings, Peter Berkowitz would be an ideal choice to attempt an answer to these questions. But first he would need to confront the possibility that the Constitution requires more than just a defense.