Pulitzer Prize-winning journalist George F. Will returned to the National Constitution Center earlier this summer to discuss his new book, 'The Conservative Sensibility', a reflection on American conservatism. He sat down with National Constitution Center President Jeffrey Rosen for a wide-ranging conversation, sharing his thoughts on everything from natural rights and the Declaration of Independence through the Woodrow Wilson presidency and up to the Roberts Court.
This episode originally aired on our companion podcast, Live at America’s Town Hall.
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PARTICIPANTS
George F. Will writes a twice-weekly column on politics and domestic and foreign affairs for The Washington Post, where he has been a columnist since 1974. He received the Pulitzer Prize for commentary in 1977. In addition to The Conservative Sensibility, his other works include: One Man’s America: The Pleasures and Provocations of Our Singular Nation (2008) and Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy (1992). Will received a PhD from Princeton University.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- The Conservative Sensibility by George F. Will
This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Tanaya Tauber: Welcome to Live in America's Town Hall. Live constitutional conversations held here at the National Constitution Center in Philadelphia and across America. I'm Tanaya Talba director Town Hall Programs. Pulitzer's winning journalist George F. Will return to the National Constitution Center Stage last month to discuss his latest book, The Conservative Sensibility. A Reflection on American Conservatism. He sat down with National Constitution Center President Jeffrey Rosen for a wide-ranging conversation on American politics today. Here's Jeff to get us started.
Jeffrey Rosen: This important, substantial, illuminating book, The Conservative Sensibility takes as its hero, James Madison, and George Will does need no introduction at the National Constitution Center. He was here just a few years ago, where he presented on Freedom Day, the germ ... an idea that is central to this book, namely that all of American constitutional history can be seen as a battle between two Princetonian James Madison and Woodrow Wilson.
So, George, first, it's such an honor to have you back all the time. And why don't you begin by telling us why the battle between Madison and Wilson defines American constitutional history.
George F. Will: I've said before, I will now say again that the most important decision taken in the 20th century was not Germany's decision to side with Austria 1914 and not Hitler's decision to invade Russia in 1941. And not Deng Xiaoping's decision to modernize China. The most important decision taken in the 20th century was where to locate the Princeton graduate school.
President of the University, Woodrow Wilson wanted done on the campus. His nemesis, Dean Andrew Fleming West wanted it where it is, upon a hill, near the college. Wilson had one of his characteristic tantrums resigned, went into politics and ruined the 20th century. I simplify a bit and exaggerate somewhat.
Woodrow Wilson became ... And by the way, until 2016, he was the president with the least public experience, civil or military. Woodrow Wilson became the first president to criticize the American founding, which he did not do periphery, he did it candidly, forthrightly and Rutan branch.
He said, "First of all, the doctrine of natural rights is a mistake, anthropological mistake." He said that never was a state of nature, not that the founders thought there was. But he said, "Natural rights doctrine is bad." Because the most important word in the declaration, from my point of view, is a verb to secure.
All men are created equal, endowed by their Creator with certain unalienable rights and governments are instituted to secure those rights. First come rights, then comes government and government does not give us our rights, it protects them. And therefore, the natural rights doctrine was inherently limiting.
Second, the natural rights doctrine offended progressives at the turn of the century, because it implied a human nature, a fixed unchanging human nature. Whereas if you can say there is no fixed on human nature, then human beings can be understood simply as creatures situated in a society that acquire the culture surrounding them. And that gives an enormous potential jurisdiction to government to change the culture and thereby change human beings to make new people as it were, to make the human race itself progress in its makeup.
Third, and related to the first two, Woodrow Wilson was an opponent of the separation of powers. He thought it was an anachronism by 1912. He said it was all very well, in the founders' era, when there were 4 million Americans, 80% of them living within 20 miles of Atlantic Tidewater. But now, he said, "We're a vast continental nation united by steel rails and copper wires. And the more complex society gets, the more we need a nimble government."
That was one of his telling words at the beck and call of a strong president. Therefore, Congress needed to be somewhat marginalized. The Article One needed to become Article Two and Article Two needed to become Article One of the Constitution. That in spite of the fact that about half of Article Two is how to select the president and how to remove him, if necessary.
The other half is pretty much distilled in one sentence that the President's job is to take care of that the laws are faithfully executed, which definitionally makes him inferior to which he responds those who make the laws that he is to execute. Well, this set the stage for what I think is the most equilibrium destroying fact of modern politics, the great Madisonian equilibrium, dependent on rivalrous institutions, with their own pride and their own interests and their own prickliness about defending their turf. This gave rise to the modern presidency.
The next great step after Woodrow Wilson and this was Franklin Roosevelt. Interesting fact that ... Because he came to Washington first to be Woodrow Wilson's Assistant Secretary of the Navy. Now, when he became President, when he gave his first fireside chat on this marvelous, magical invention radio, which was actually more exciting to people than the internet was, and not without reason, it annihilated distance in a way that the internet didn't do.
When he gave his first fireside chat, he began with two words that do not appear on the transcript in the library at Hyde Park but he said him anyway. His two words were, 'My friends." Now, we're so used to presidents who feel our pain and presidents who treat us with a kind of foe intimacy and they're in our living rooms all the time. That doesn't start with us anymore. But I try to imagine George Washington saying that to any group of Americans, "My friends." That austere man is unthinkable.
And I want you to entertain the possibility that perhaps it's not healthy for presidents to pretend to be our friends. That's an intimacy with politics and with politicians and with centrality and ubiquity of the president in our lives that is not healthy. I for one don't want a president to be my friends. I noticed that Mr. Trump's chosen nickname for Joe Biden is sleepy Joe Biden. I would like to have a sleepy president.
Rosen: Bring back William Howard Taft. Taft had sleep apnea and he fell asleep at the White House.
Will: Great man.
Rosen: There's so much in this really substantial book which you've been working on for three years ranging from a discussion of the purpose of education to the need to resurrect the study of political economy to a discussion of this and quality of culture. But of course here at the Constitution Center, we should focus on the constitutional arguments. What would you say to this as a summary of your thesis? There was an originalist Republic in America founded on the principles of the declaration. It was perfected by Lincoln who resurrected the principles of the declaration at Gettysburg and enshrined the natural rights of equality into the Constitution. But it was called into question in 1912 by Woodrow Wilson. And that was the birth of the progressive Republic, which was then expanded by Franklin Roosevelt. And ever since at least the 1980s, conservatives have been trying to roll back the progressive Republic and resurrect the originalist Republic through the courts. Do you agree with that thesis?
Will: I do. I grew up in Central Illinois, Champaign Urbana. My father was a philosophy professor at the University of Illinois. And according to local law, Abraham Lincoln was in the Champaign County courthouse in 1854 when he heard that Stephen Douglas had passed through Congress the Kansas-Nebraska Act.
The Kansas-Nebraska Act was an attempt to solve the vexing problem of what to do about the possibility of slavery's expansion into the territories. Douglas said, "Vote it up or vote it down. That's a matter of moral indifference. The important thing is that we have popular sovereignty in the territories." Lincoln's recoil against this implacable, canny, unrelenting recoil against the idea that we would submit slavery, the expansion of slavery to a vote, launched him on what I consider the greatest political career in the history of world politics.
The question that Lincoln poses is, "Is America about majority rule? That is is America about a process? Or is it about a condition of liberty?" Lincoln, I think came down firmly on the side of liberty. So I've been thinking about this more than three years. I grew up marinated in the spirit of Lincoln in Central Illinois when I went to Princeton to get my PhD, I wrote my dissertation title was Beyond the Reach of Majorities.
That's from Justice Jackson's opinion in West Virginia versus Barnett, the second of the flag salute cases where they reversed the earlier decision. Earlier, the court had said it's all right for schools to require Jehovah's Witnesses to salute the flag, although it was against their fundamental beliefs. And he said in his opinion, Justice Jackson, "The very purpose of the Bill of Rights is to play certain things beyond the reach of majority to remove them from the vicissitudes of politics."
And this is a constant American refrain. A number of people Alex Pickler, his colleague, Robert Bork, and others, Oliver Wendell Holmes, who said, "If the people want to go to hell, I will help them. It's my job." By deferring to a majorities at all times. That's one view. My view is that that's a dereliction of judicial duty. Today many of the most interesting arguments are not between conservatives and progressives against conservatives warring with one another.
Conservatives for many years advocated judicial deference because they were in recoil against some of the more freewheeling decisions of the Warren Court. But when they adopted the language of judicial deference and judicial restraint, they were adopting the language of the progressives who had their pin-up was ... their intellectual pin-up was Oliver Wendell Holmes.
And this is where, in my chapter in the book, it's titled Judicial Supervision of Democracy.
And it's aimed at Alex Bickel, a very great man by the way, and Robert Burke, a close friend of mine. They said judicial review poses the counter-majoritarian dilemma, that there's something anomalous about judicial review in a society devoted to popular government. You can see where I'm going here because I said we're not devoted to popular government. Popular government's an instrument to help us achieve the condition that we want, which is liberty. But that's the nature of the argument.
Rosen: Let's delve in on this really important debate within the conservative movement about judicial deference and what's now called judicial engagement. So just to emphasize the stakes here, ladies and gentlemen, George Will in this book, argues for very vigorous review of laws that threaten liberty. And just today, the Supreme Court handed down an opinion called the Grundy case, where justice Gorsuch, in dissent, resurrects one of the doctrines that George Will argues should be resurrected, namely prohibiting Congress from delegating vast swathes of authority to the executive to categorize crimes. And just to put the point bluntly, as Justice Kagan did, in her majority opinion, she said this resurrection would mean the end of government, it would put the Supreme Court in the business of striking down environmental regulations, price supports for farmers, the ability of the executive to categorize crimes, and it would basically strike down the whole post or deal in administrative state. Is that a good thing? And how is that conservative?
Will: I think it's hyperbolic on her part. What it would strike down is the congressional practice of not legislating, of turning over all the details to the administrative agencies or the Agriculture Department. Congress is now so busy. I mean, we've had 535 members of the House of Representatives since when? The early in the 20th century, the country has tripled its population, the government has increased, I'd say, 50 fold in what it does.
Same number of representatives and they're busy getting re-elected. And so what they do is they pass what Christian youth think are very wise men in Washington says Congress now doesn't pass laws it passes veloties. It simply says we shall have clean air. You guys work out the details. We should everyone should have a quality education over to the education department. You make the difficult trade-offs and assessments and balancings.
The first substantive words of the Constitution, the first words after the preamble are all legislative power shall be vested in a Congress of the United States. The question is, can anything restrain Congress from divesting itself of powers that are given to it? Because when the founders gave the power to legislate to Congress, they didn't say, "Unless you find it tiresome and would like to hand it off to somebody."
And that's where some of us, we really would like to see the non-delegation doctrine breathe back to life. And the court say, "I'm sorry. That is a degree ... that's obviously, a matter of degree, but there is a degree of delegation that is impermissible."
Rosen: Yes. And it's a very mushy standard. As long as there's an intelligible principle, the majority said then you can have the delegation. But I want to ask you very concretely, you're enough of a Burkean conservative not to just try to impose abstract principles from above. With another vote on the Supreme Court, it's not at all hypothetical. In fact, it's quite likely that Justice Gorsuch's vision could be embraced, the non-delegation document could be resurrected. What in practice would change about the government? Which administrative agencies would either be struck down or have to be restructured? And which laws would fall?
Will: I don't think you have to strike down any agency. You just restrain the degree of discretion they'll have in achieving policy goals. This would not injure the agencies, it would injure Congress's time off. I mean, Congress, as you know, works Tuesdays to Thursdays, literally.
It's one of the reasons the fact that they don't live in Washington and socialize with one another. It's one of the reasons that the atmosphere in Washington has become unnecessarily poisonous. But reviving the non-delegation doctrine would have no policy consequent, need to have no policy consequences. You can say if you want to subsidize soybeans, I think it's a bad idea, but go ahead.
If you want to have any kind of environmental regulations that fine, but Congress has to do more of the decision-making that affects trade-offs and expenses, not to hand that off to unaccounted bureaucracies.
Rosen: It's an inspiring vision embraced by Senators from Ben Sasse to Chris Coons but in practice, this Congress is so polarized that for the reasons you know, you can't do anything. So how in practice, would these regulations be passed? And how in practice would government work?
Will: Well, I don't think the current condition has always existed. And I don't think it will always exist. I think the country has to rise up and say, "We're tired of it." I think one of the lessons and it's both unfortunate but in its adverse, it's heartening. We've seen in the last few years, the enormous effect one president can have in changing the tone of American life. But if the tone is as plastic as it seems to be to the touch of presidents, a better president can have a better touch.
So it seems to me, you could have five years from now, we might be saying to one another, "Did that stuff really happen?" And we could get back to something more normal because I don't think the players in Washington – remember there are only 527 people are in Washington because the people sent them there. President or vice president, 100 senators, 435 members of Congress, and I don't think they're happy, they're not enjoying themselves.
Rosen: When the court has struck down a lot of laws that are seriously out of step with public opinion in the past, it's provoked backlashes and judicial retreat and the FDR court-packing is the most dramatic example. If the court does would you hope, and there's a future democratic administration and say it strikes down the green New Deal, might we not see court-packing by Democrats and partisan warfare that makes the current stuff look tame?
Will: We might but before the democrats go to the country with the idea that they want to pack the Supreme Court, they should pay attention to what happened the last time. In 1937, FDR tried to pack the Supreme Court he was stopped by the leaders in Congress who at that time were conservative Southern Democrats.
Roosevelt set out in 1938 to purge his members of his own party to support primary challenges and the rest. The public rebuked him strongly. And their rebuke in 1938 was so overwhelming that they swept in a bunch of anti-Roosevelt Democrats. And there was not a liberal legislating majority in Congress until 1965. All that time, the majority was conservative Democrats and Republicans so that the cost of packing the Supreme Court, the last hour trying to was severe.
I just said the magic word 1964 and 65. This book is dedicated to the memory of Barry Goldwater, for whom I cast my first presidential vote in 1964. In 1964, 77% of the American people said they trusted the government to do the right thing all the time or almost all the time. 77%.
Today the figure is 17%. A 60-point collapse. Now, my progressive friends, and I do have some, would be well advised to read this because everything they want to do, the entire Elizabeth Warren agenda, depends upon strong government. And strong government at the end of the day depends upon people having confidence in the government. And unless they can figure out what went wrong, we know the obvious things that went wrong, Vietnam, Watergate, things like that.
But also the tremendous disappointment with what the government undertook to do in the aftermath of the Goldwater landslide, which swept in a liberal legislative majority and for two years, particularly, the pent-up agenda since 1938, if you will, was rushed into law and the failure of the laws and the programs to measure up to their fancy titles, models cities, for example, head starts, for example, was I think did more lasting damage to the prestige of government.
Government's pretense went up, its prestige plummeted and more damage was done by the Great Society, in my judgment, than by Vietnam or Watergate combined.
Rosen: Just another beat or too on the courts. You are not a fan of Chief Justice Roberts' decision to uphold the Health Care Act and his concern about institutional legitimacy. And yet he represents the conservative strain of judicial restraint which was not limited to progressives but goes back to John Marshall whom he invoked in his healthcare dissent about the importance of deferring to broad exercise of congressional power. Tell us why you think that Roberts' decision, Roberts' concern that for the court to strike down laws by five to four votes would damage the institution immeasurably and then it's important therefore to be restrained.
Will: Yeah. I'm very sympathetic to what Roberts did. Roberts said, "Are we going to overturn our five-four vote, the signature achievement of a president in a re-election year?" And when you put it that way, and when you realize that the Supreme Court is, well, in Hamilton's language, the least dangerous branch because it has neither sword nor purse. But it's the weakest branch in the sense that having neither the sword nor the purse, it depends on prestige.
And that can be dissipated. We don't know how because we don't ... I mean, suddenly, the Supreme Court got an enormous infusion of prestige. You may disagree with my thesis here, but I think what made the modern Supreme Court was Brown versus Board of Education. The country said this an enormous achievement. We couldn't do it. The institution not just of the South, remember Brown, the Board of Education came out of Topeka, Kansas.
And I think people were sort of proud of the court, proud to have this institution that would do things majorities could not do. But it can be frittered away, it can be dissipated. So I'm very simple. I mean, the logic of the decision was that I think they should have struck it down but ... What did Holmes say about the (crosstalk)
Rosen: Life of the law is not in logic but experience.
Will: Exactly. So I think someone has to look after this, there has to be a custodian of the institution and that's the Chief Justice's job.
Rosen: Have you changed your mind there? Because you gave me hell back in the healthcare days for calling on Roberts to be restrained.
Will: Yeah, I've changed my mind. On a number of issues. I used to be a Burkean because Bob was a good friend of mine. I used to be against term limits now I'm for them, I used to be against a balanced budget amendment now I'm for them. But that's it. I'm done changing my mind.
But that is first of all a testament to your intellectual humility, open-mindedness. But that's a huge chance. Tell us about your evolution from a Burkean proponent of traditional deference to a Willian proponent of traditional engagement.
Well, again, I think the seed was planted when I was a child in Illinois, learning about the Kansas-Nebraska Act, and it was fertilized at graduate school at Princeton when I was writing about Beyond the Reach of Majorities and the subtitle of my doctoral dissertation was Closed Questions in an Open Society. What Do We Not Submit To a Vote. So I'm just a slow learner. It took me a while.
Rosen: I want to say more about intellectual humility and Holmes. I've just read this excellent new biography of Holmes by Stephen Budiansky and I like you have been a Holmes skeptic on the theory that he didn't believe in the Constitution. He almost never voted to overturn any laws because he said, he thought if the people want to go to hell, I'll help them.
But what Budiansky resurrects is Holmes' deep intellectual humility. He says that certitude has never been the test of certainty. We've been cocksure of many things that are not so. And from 20 to 90 he just opened and read and changed his mind and there's a lack of humility to have a five to four court just striking a lot of stuff down based on …
Will: As Holmes said time has upset many fighting faiths.
Rosen: There we go.
Will: In the Abrams decision. I get that. I also think ... I don't know, I haven't read this book.
Rosen: It's good.
Will: I also think that part of Holmes' view of the world, he got it balls bluff and emptied him and all the rest. The man had passed through the furnace of the Civil War, the first war of modern munitions and the last war before modern medicine. So it was just everything was awful about the Civil War. And I think he came away with a view of the universe that force is everything at the end of the day. And if the dominant forces in the community want x, they're going to get it. That's going to hell and I will help them. So I don't know if the biographer dwells on this or not.
Rosen: He does. And that's part of it. But another reason that he lost his belief and beliefs as Louis Manum puts, it's because he came to believe that ideals of any kind are elusive and it's impossible to be sure of them. And therefore life is a struggle and the only thing that can redeem it is ceaseless hard work without expectations as to the result. That's why he gave that speech about a soldier's faith, the noblest thing you can do is throw your life away on behalf of a cause you barely understand just out of pure courage.
And that's why he has worked so hard at the law just for the sake of self-discipline and self-mastery, not with any particular ideal in mind. Is that a little more ... Inspiring is too strong but does that resonate with you at all?
Will: Yes, it does. If I can swerve from the court just a bit down on the subject of humility.
Rosen: Yeah.
Will: One of the chapters in political economy. The great non-sequitur that I think the progressives made with Wilson, Wilson said the more complex society becomes, the more government must supervise society and must intervene in society. And I think that's exactly wrong.
The more complex society gets the more epistemic humility, to use Friedrich Hayek, a big figure in this book, his term, the more epistemic humility the government ought to have because the markets are generating millions of people generating billions of decisions a day. This very complicated flux and dynamism of a market society and government knows less and less and less because there's so much more to know that markets are producing in a society like this.
So in a way, the founders began with an epistemic certainty. There are some self-evident truths, things we can actually know. Self-evident to them meant apparent to all minds not clouded by superstition. But Hayek comes along and says, "No, please understand that society is like a cauldron mobile." You jiggle something here and things jiggle all over there.
And I've often said not that conservatives don't just understand the law of unintended consequences. They are conservatives because of the law of unintended consequences, which is that the unintended consequences of intervention in a complex society are apt to be larger than and contrary to the unintended consequences. What could go wrong?
I mean, again, I think, good old Elizabeth Warren, her mantra of her campaign is, "I've got a plan for that." There's a Jewish saying, "If you want to make God laugh, tell him your plans."
Rosen: My mom said that.
Will: Sure.
Rosen: So why shouldn't the same epistemological humility apply to the court? Which is why Holmes said the Constitution is made for people of fundamentally different point of view?
Will: Well, that's the problem. This imperial, if you will, role cast for the courts and hearing that we judicial engagement, half of the court, appaul certain friends of mine, for example, the very distinguished judge on the Fourth Circuit, J. Harvey Wilkinson, who wrote me a pained anguished letter.
He said, "Will, what you're going to do is you're going to have these courts, there'll be a cafeteria of rights. And they'll take the ninth amendment saying that that enumeration of certain rights in the constitution shall not be said to disparage and enumerated rights. And all hell breaks loose." And it's dangerous.
And my answer to Jay is, "Yeah, it's dangerous. There's no safety in politics. The question is, what do you fear more? Do you fear the unitary president wielding an administrative state more? Or do you fear Congress with its indifference to its responsibilities and its role checking and balancing the executive? Or do you fear the courts?" I fear the courts least.
Rosen: But in the 60s, conservatives feared the courts more because of cases like Roe and if you believe that ... If you take a pro-life position then you'd think that that's …
Will: Which I do.
Rosen: You take a pro-life position?
Will: Yes, I am pro-life.
Rosen: And do you think that the court should just overturn Roe and leave it to the states? Or should recognize fetal personhood and require the protection of human rights?
Will: I think they should ... if they overturn Roe, they won't, by the way, it'll never happen. But if they ... Peace.
Rosen: You can clap on a non-partisan basis. That's fine.
Will: Half of my readers ... My column appears in about 440 newspapers, I'm sure half of my readers think I'm a Catholic. Because I'm pro-life. I'm actually as I say, in my chapter, called Conservatism about Theism. I'm an amiable low-voltage atheist but we don't need to get into that stuff.
Rosen: Not low-voltage.
Will: But a lot of people because they don't think a lot about these things think that if you overturn Roe V. Wade, that outlaws abortion. If you overturn Roe V. Wade, all that means is it's a subject regularable by the states. And I think ... I'm not sure there's a state I the union that would outlaw first trimester abortions.
Rosen: Alabama just did.
Will: They did.
Rosen: Alabama just did.
Will: Alabama did it only to provoke a Supreme Court case. I mean, they really were canny about this.
Rosen: But if the court agrees, then it's banned in Alabama. But if the court agrees and the law's upheld then it's banned in Alabama, Louisiana.
Will: Well, but it won't. The court won't.
Rosen: It might. (crosstalk) With another Justice it might.
Will: I don't think. I mean, abortion is, I think the second or third most common surgical procedure in the United States. It's not going away. It just isn't. Clarence Thomas would because he says let justice be done let the heavens fall. But the other guys don't want the heavens to fall.
Rosen: What about marriage equality? As a libertarian devotee of the Declaration, I couldn't tell but I suspected perhaps you thought that that should be constitutionally protected.
Will: Yes.
Rosen: What's the argument? The constitutional argument for protecting (crosstalk)
Will: The constitutional argument ... Here's where a lot of us judicial engagement people say we're not originalists and I'm not. An originalist says the Constitution's text should be read so that the words have the original public meaning at the time they were written. Is that a fair distillation? I think the Eighth Amendment overturns that originalism. There should be no cruel and unusual punishments. Well, if cruel and unusual means what it meant in Philadelphia, when they were imposing draconian punishments as the Constitutional Convention was sitting, then we'd be cropping ears and pillorying people and flogging them in public and that sort of thing.
I don't take the original public meaning, I take the original intent. The original intent was to say we will not have cruelty inflicted by the government. And then it turns out that Earl Warren was right that there are evolving standards of decency that mark the maturation of a society. And the intent is constant but the application isn't.
Rosen: As you articulate this so well, it sounds a lot like the book of our mutual friend and friend of the Constitution Center, Randy Barnett, our Republican Constitution, it does give a huge amount of discretion to judges to decide what they think liberty and autonomy requires.
Will: Yes, and it's dangerous. I plead guilty. Everything in politics is dangerous.
Rosen: But how is it principled? Because when you were a Burkean, liberals had the courts and conservatives didn't want liberals to make up these rights, and now conservatives have the courts and you want to make it up.
Will: Yeah, I really think I've not changed for that reason. I think if the other guys were appointing the justices ... I was going to say the Republicans ... I'm not a Republican anymore, Rosen.
Rosen: No. I know that. And please, ladies and gentlemen acknowledge George Will's, incredibly principled decision to leave the Republican party because of his constitutional obligations to the President. You do deserve great respect for that. Why did you switch that?
Will: The reason here, for example, in the chapter and it's titled The Judicial Supervision of Democracy, there's a long exegesis of just how wise Justice Souter was in a wonderful speech he gave at Harvard a few years ago. And Justice Souter was supposed to be the boogie man for disappointments to conservatives.
Why did I change? I just thought through a lot of things. I mean, I kept hearing that if majority should be referred to because they're wise, no, they're not. Or they're inherently just, no, they're not. So who's going to stop bad majorities? And then I thought that conservatives often combine deference to majorities with celebration of local rule, a kind of residual anti-federalism.
Well, the best example I can see of majority rule with local deference to local institutions, the Jim Crow laws, which are just about as bad as you can get.
Rosen: But it's not originalist in the sense that the framers never anticipated such a vigorous role for the courts.
Will: They did not.
Rosen: Yes.
Will: And I say in my book that the third most important American after Lincoln in Washington was John Marshall, because he established judicial review, and understood that a written constitution without judicial review, without this counter-majoritarian anomaly, is the part that people thought it was. That a written constitution without judicial review is impossible. The Constitution will not constitute unless the courts will lay the statute next to the constitution and when they're discordant favor the Constitution.
Rosen: And yet Marshal only struck down one federal law. And there are only two struck down until 1857.
Will: But there were precious few laws to begin with. When the first Congress met in Washington, or I guess they met wherever it was in New York, I guess. Anyway, when the first Congress met, the Congress was larger than the federal bureaucracy. State Department, I get three employees, something like that. I mean, so it was a tiny government.
Second, as you know, 95% of the Marshall court's decisions were unanimous, which is partly because they were under the leadership of this very canny and amazingly affable man. Personality matters in a small face to face society like a court. And everyone loves John Marshall, everyone.
Rosen: That in the Madeira that he played his fellow justices definitely helped.
Will: Right.
Rosen: I'm pressing on this just because so much of this is appealing to someone, to anyone who loves the constitution and loves Madison. But if this originalist Republic that you call for is imposed by judges.
Will: Not originalist.
Rosen: What would you call it?
Will: Yeah, originalist in the sense that I'm not an originalist of public meaning of the text, I'm an originalist about the intent. And the intent was to create a government that protects the declaration of independence. So there's a big row going on among conservatives again.
I'm about to write a column on it for the fourth of July. As to whether or not the declaration is relevant to construe in the Constitution. Again, I'm a child of Central Illinois. I'm an acolyte of Lincoln and Lincoln said that the Constitution is the frame of silver for the apple of gold. The apple of gold's the declaration.
Frames are important and silver is valuable, but what's in the frame is more important and gold is more valuable than silver. So I think this constitution is to be construed in light of the bright light cast by the first two paragraphs of the declaration which by the way, to get back to the root of all evil, Woodrow Wilson.
Woodrow Wilson said to the American people, "Do not read the first two paragraphs of the declaration of independence. They'll only mislead you." He said its fourth of July boilerplate. I think it's law. Isn't the declaration, the first thing in the United States book of statutes?
Yes. And you say as a result all states pledge to adhere to it.
So from the mission of Nevada on every state was required by Congress to (crosstalk)
Rosen: To swear allegiance or to accept the US code under the supremacy clause. Yes, indeed.
Will: Exactly.
Rosen: So tell us more about the internecing debate among conservatives about the relation between the Declaration on the Constitution. Who's on what sides?
Will: Well, Justice Scalia said, famously, "There's no philosophizing in the Constitution." Well, he said it's a practical allocation of powers among institutions and that's all. My kind of conservative says, "No, that's what it does and there's no philosophizing in the Constitution but the constitution comes after the declaration." It was to codify the purposes and intense and aspirations of the declaration. And in that sense, it is derivative from and enabled by the declaration as a clear philosophic statement.
Rosen: Justice Thomas got into trouble in his confirmation hearings for having written about the declaration, and he said it was just philosophic musing, but in fact, he's been quoting it and his opinions. So what should we call the Republic that you hope would be resurrected if the New Deal the progressive Republic fell?
Will: Call it America. We are guaranteed a Republican form of a government. That's the guarantee clause of the Constitution and it would be a Republic structured to make natural rights safe. What are natural rights?
Rosen: We don't know but just on the branding first before we get to the philosophy. So we have the founders Republic, the reconstruction Republic, the progressive Republic, the fourth Republic sounds too French. So what's the new one? The natural rights Republic?
Will: Will’s Republic.
Rosen: That sounds extremely Madisonian. Alright, what are natural rights? And why are the rights of conscience the preeminent natural right?
Will: Well, the natural rights are rights that ... You'll notice I'm about to define it without reference, without theism, without reference to a creator. Natural rights are rights conducive to the flourishing of people with our natures. Which makes a secular natural rights advocate is basically a rule utilitarian, because what we're saying is what we learn from history is that as a rule, the rights that are conducive to flourishing understood in this way are these rights.
Now, people say, well, gosh, I'm a lot of arguments about that. Yes. If you don't like arguing you picked the wrong country because Americans are condemned to arguing by having a written constitution where the litigation about which is where we really do political philosophy.
Rosen: I asked about conscience because I looked it up in Morton White's book, The philosophy, the American Republic. The reason that conscience is unalienable in the state of nature is because the founders thought our opinions are the involuntary thoughts presented to our reasoning minds and therefore I can't alienate or surrender to you the power to control my thoughts because I can't control them myself. They're the product of reason. Does that make sense?
Will: Well, Hume, another one of my heroes. Hume said that the reason is a spy for the passions that we are in a way who's trying to figure out how we reason. I think, Hume, my hero was not quite right on that. That there is such a thing as a moral sense in people. That's why Lurke different from Hobbs, Hobbs said in the state of nature life is solitary poor, nasty brutish and short. And therefore, because people have no native sociability, you need a smack of firm government, you need a Leviathan.
Locke came along and said, "Oh please." People have a natural sociability and therefore, we institute governments to cure certain inconveniences and the state of nature. A very telling word Lurke used to ... Because if the worst we do to one another are inconveniences. And because of our natural sociability government isn't quite did not be as overbearing as people thought, as Hobbs thought it needed to be.
Rosen: You just mentioned reason and the founders desire to tame passion with reason. Say more about the pursuit of happiness. I just read a great new book, delving into your point that Jefferson's phrase was from Aristotle and the Greek notion of you Dimonia or self-mastery. It wasn't let it all hang out, do your own thing, but master your passions so that you can achieve your true purpose.
Will: Yes, people could only be happy according to Aristotle, if they had self-government, meaning they governed themselves. Hence, his great emphasis on moderation in all things that if the passions were not under control, people spun out of control. And needless to say, polities spun out of control but before you got to the macro problem then you're at the micro problem. And Aristotle's ethics is about how the soul can achieve equipoise.
Rosen: And therefore, what do you think the purpose of education should be? You give at least three purposes and you just gave the students hell at Princeton by telling him to praise more and blame less.
Will: Yeah, well, we live today in an age of rage, where the default position is contempt and smirk and cynicism. And this is encouraged by what are called social media and should be anti-social media. The brevity and the instantaneousness and the wide dissemination brings out the very worst in people of which it turns out to be a lot.
But I think one of the purposes of education is to teach people how to praise. The default position should not be disparagement. There's a broad in the land today of the belief that if you're not disparaging something you're not exercising your critical capacities, that critical capacity means to criticize and to criticize means to disparage. That's not what critics do, some critics celebrate. And Harvey Mansfield, he's known as the conservative at Harvard, definite article.
Rosen: There are a few more now.
Will: Yeah, I know. And Harvey Mansfield, teach people to praise because, in order, to praise you have to say there are certain standards and if you learn to praise and you learn to apply standards to the world, you're going to be happier because praising turns out to be fun, it's gratifying. You're praising someone that doesn't. .. The act of praising doesn't in any way diminish the praiser.
Rosen: And why is it especially important to educate students in the science of government and in the constitution?
Will: Well, because government is complicated and government is inherently about compromise. It's about the factions coming together and balancing one another. And it involves a lot of disappointment for people, which means people have to think we're all in this together somehow. And we've all accepted certain rules so you better know what the rules are. And you better know why they built this complicated government at the other end of the mall.
Madison's revolution in democratic theory was this. Before Madison, to the extent that people thought, and very few people didn't think that democracy was possible, they thought it was only possible in a small face to face society that you could walk across in a day. Rousseau's, Geneva, Pericles, Athens.
Because the big problem was supposed to be factions. Democracies had to be homogeneous. Madison said, "No, that's exactly wrong." And he had a catechism for the founders, what is the worst outcome of politics? The answer's tyranny. To what form of tyranny are democracies prey? Tyranny of the majority. Solution, don't have majorities. Actually, it's mean, don't have stable and therefore potentially tyrannical majorities, have unstable, constantly shifting Coalition's of minorities that form the majorities that can't overtime be stable enough to be oppressive.
Hence, the need for an extensive Republic. Vast lands with all kinds of people turning random. Hence, his statement in federalist 10, where he calls for an extensive Republic. The first duty of government is to protect the different and on equal capacities of acquiring property because those would translate into farmers and mechanics and bankers and investors and industry factions. And there'd be a saving multiplicity of factions.
That's why it's very important for people to understand the rules were written for a reason. And the reason is to protect our freedom and enable complex passionate people to get along.
Rosen: Madison thought that the extended Republic would make it hard for the factions to organize and discover each other and therefore their passions with Peter out. Has social media or anti-social media obviated to his vision and created a Madisonian nightmare?
Will: Yes, that the technology of communication changes everything, the technology of communications, without it you can't have the modern presidency. There's a wonderful book, everyone ought to read by Jeffrey Tulis called The Rhetorical Presidency in which he makes the point that until modern communication came along until it keep harping on the poor man, Woodrow Wilson and the others, almost all presidential rhetoric was in writing and it was directed to Congress.
There was very little speechifying aimed at the general American public. Radio, TV, tweeting, changes everything. I want to talk baseball for just a sec. No, because (crosstalk)
Rosen: This is the one topic I can't talk. So talk to the others.
Will: A) because I only write about politics to support my baseball habit. Okay. My wedding ring has the Major League Baseball logo on it. I mean, this is a sickness. I admit it. But baseball is like what I was just talking about the problem of democracy. Baseball is a great game for a democracy because there's so much losing in it.
No, I'm serious. Every team goes to spring training, they know they're going to win 60 games and they're going to lose 60 games. Play the whole damn season to sort out the middle 42 games. You win 10 out of 20 games, you're definitionally mediocre, you win 11 out of 20 games, you win 87 games, you're on the outskirts of the pro-season. It's just the greatest betting average, career betting average was Ty Cobbs 367. That means he failed more than 60% of the time.
There's a lot of failure in it and a lot of give and take and you got to get ... Football, one of the many things that's wrong with football, a team starts 0 and three and if the Eagles ever start on three people be suicidal up here. The Phillies lost twice yesterday and they'll be back tonight. I mean, democracy requires a kind of emotional equipoise and I think baseball encourages that. End of my digression.
Rosen: I can't pose this question with a sports metaphor but has the social media so undermined the constitutional guardrails that the rules are out the window?
Will: They're not out the window but again, looking on the bright side, as I am disinclined to do, I think people, the novelty will wear off some of this stuff. Facebook, social, all that stuff that people are going to say, "What are we wasting our time doing here?" I don't want to get too personal here but I've never tweeted.
A young woman in my office tweets 240 characters twice a week from my two columns. That's all I've ever done. Now, I bring out a book and they say, "George, you ought to get on Instagram." I have no idea what Instagram is.
Rosen: Oh, God, no. Don't do it.
Will: So I said, "Alright. If they going to sell books." So they said, "Put up pictures." This happened yesterday. And I said, "Alright." So they have a picture of me with Mike Trout of the California Angels. And they said, "What caption should we have on it?" And I said, "Cancel my Instagram account. I'm not doing that. I'm just not going to do this. I'm not going down that path." But I do think this idea that we have to be sharing our data, generating it and pulling it is a wonderful novel that I just read wonderful but dystopian novel.
Show of hands, if anyone has read it. It's called The Circle by David Eggers. Good. It's an astonishingly, gripping, dystopian view of the logic of this constant pulling of everyone's data. I really recommend it.
Rosen: There's so many great questions, as always, and many of them are about a name that does not appear in this book, and that is President Trump. And they range from does President Trump have a conservative sensibility? Do you think he will try to see his power if he loses in 2020? Is this 1941 revisited and so forth? Why did you choose not to mention the President's name since you certainly have criticized him in your columns? And does he have a conservative sensibility?
Will: I was on Bill Maher's show recently. And he said Trump's name doesn't appear in the book and I said neither does Doris Day's name. Because this is about ideas. I didn't want to write another Washington book. I'm not under the impression that there's insufficient attention paid to him. He's never said anything interesting about government or politics. That's not what he does. I want this to be a book that we read five or 10 years from now and it won't seem dated because I don't have that guy in there.
I will bet on 50 years from now this is like Russell Kirk's great conservative sensibility book. It is extremely impressive achievement and on the, well, alright, we'll have one or two more questions. One is how can we as ordinary citizens foster a conservative outlook in others?
Well, I think we need to have something that's in here which is a robust defense of a market Society of what Burke called the organic nature of society and what Hayek taking the Burkean sensibilities that called the spontaneous order of our society, an appreciation of the complexity and the creativity of the fecundity of freedom in a market society.
We have to patiently try and explain to people the great enrichment that has occurred since first the Dutch and then the British and then the Americans showed what can happen when you unleash the energies of common people through a market society. Has anyone here read Deirdre McCloskey's big three volumes on the Bourgeois virtues? Wonderful book. Is it what the big ... Steam In Colin, James Watson, all that stuff in Britain. That's fine.
But before that was the Dutch. And the Dutch said, "Enterprise and commerce is not the sinful working out of fallen man. It's good for us." And their great painters began to paint distinguished burgers and bankers and suddenly it was dignified to be an entrepreneur, an enterprising. So we have to do something like that for Americans. We have to tell them how complex things are, how good things are, we have to cure the social hypochondria to which Americans are prey. There's a thought experiment in this book.
In September 1916, according to some historians, there was a surge in the value of Standard Oil stock, and John D. Rockefeller became America's first billionaire. It was a billion, 1916 dollars, so it was serious money. Thought experiment, if I would give you a billion dollars in 1916 dollars but to had to live in 1916, would you take the deal?
I offer this to people. I say, "Well, don't even think of getting a toothache." And by the way, one in 10 Americans had a toothache at any time in 1916. You'd be able to buy the greatest watch made but it wouldn't keep as good a time as the time actually can get it to CVS. You can go to any restaurant you want but there wouldn't be any Indian and Thai and Vietnamese restaurants because they went way back then, you can live life without antibiotics, your entertainment will be a scratchy recording from Edison but there's no sound movies yet and Netflix is a way off into the future. And I think when people think about it they say, "No, I'd much rather be a middle class American than America's first billionaire."
Rosen: You're sounding suspiciously optimistic.
Will: I'll try and watch it.
Rosen: As as you know, in this book, one of the great pleasures and virtues is to praise and I must praise and thank you for having written a book that elucidates, educates and captures the essence of the American creed, helps explain the relationship between the declaration and the Constitution and provides a way of resurrecting natural rights, ideals in our polarized age. It's always an honor to talk to the great George Will.
Will: Can I say one thing? It was a great story told about Margaret Thatcher after she was elected head of the parliamentary conservative party but before she became prime minister, she was at a meeting with her members and one of them was nattering on about the glories of centrism and the super flawlessness of philosophy in politics and all that.
Finally, Margaret exasperated, reached into her capacious handbag and pulled out, Hayek's great volume, the Constitution of Liberty, she slammed it on the desk and said, "This is what we believe." That's what I want a president to do with that someday.
Rosen: Bravo.
Tauber: This conversation was generously supported in part by the Charles Koch Foundation. This episode was edited by Dave Stotz and produced by me Tanaya Tauber and Jackie McDermott. If you enjoyed this constitutional conversation, please rate, review and subscribe to the show and tell your friends about it. And check out our companion podcast, We the People, a weekly show of constitutional debate that's available wherever you get your podcasts. On behalf of the National Constitution Center. I’m Tanaya Tauber.
