Abandoning Defensive Crouch Conservatism
Toward a Conservatism that is not Liberalism
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Shortly before the 2016 general election, constitutional scholar Mark Tushnet wrote an astonishingly bold essay that called for an end to what he titled “Defensive Crouch Liberal Constitutionalism.” Anticipating an easy Hillary Clinton victory and an imminent change of the Court’s composition, he called for a revolutionary jurisprudence that would aggressively overturn loathed conservative (or even classically liberal) precedents; declared that the “culture war” had been unconditionally won by the left; and insisted that the left should therefore govern accordingly - treating their defeated conservative enemies with “a hard line” similar to that of the Allies “in Germany and Japan after 1945.”
This essay exploded like a bomb on the right, and perhaps unwittingly played a role in motivating conservatives who were on the fence about whether to vote at all to turn out for Trump. But more remarkably, the essay showed that among the progressives who occupy the commanding heights of elite institutions such as Harvard Law School, there remained frustration about the overly slow pace of social and political progressive advance. This stated impatience was the most breathtaking revelation of the essay - not only that progressives wanted to treat their fellow citizens like the defeated fascists, but that in 2016 they believed America was still too conservative.
This frustration overflowed in spite of the remarkable string of progressive wins across the political landscape, beginning with Roe, continuing with Casey, advancing with Windsor and culminating with Obergefell. What’s more - even since the “triumph” of conservative jurisprudence with Donald Trump’s appointments - social conservatives were handed another loss in Bostock, whose opinion was written by Neil Gorsuch, a hand-picked “Originalist” justice. It begun to dawn on many conservatives that, in spite of apparent electoral victories that have occurred regularly since the Reagan years, they have consistently lost, and lost overwhelmingly to progressive forces.
The Tushnet essay was yet more confirmation that progressives have a vision of where they want to go. To call what they had already achieved merely the result of “defensive crouch liberalism” was a stunning revelation of the raw ambition of progressives, who regarded their march through the institutions heretofore as “defensive”!! Imagine when they went on the “offense”!
It was a wake-up call for conservatives - but most have chosen to hit the snooze button.
Instead, Conservatism Inc. retreated into a genuine “defensive crouch,” calling for a return to a “better” liberalism. Rather than responding with an alternative vision of a good society, mainstream conservatism instead begged - Rodney King style - “can’t we all get along?” To the threat of a domineering vision of Progressivism, conservatism adopted the pose of John Rawls, asking the other side just to “bracket” any idea of the good.
The assumption of a “defensive crouch” came naturally to American “conservatives”: it has been the pose of American conservatism since its rise in the twentieth century. Mid-century conservatism arose as a defensive response to an advancing liberalism. It began as an effort to defend liberalism, the “good” liberalism constructed in mid-century and attributed to the Founding Fathers and the Constitution, a politics based upon as an avoidance of any idea of the Good in politics and economics. This stance attracted widespread support and donations, leading to the creation of countless institutions that were devoted to the protection of “good liberalism.” It was a defensive crouch conservatism, occupying the ground that was, until fairly recently, occupied by their opponents.
Consider the positions that the mainstream of American conservatism spends a great deal of its time and treasure defending today:
Religious liberty
“Limited” government
The inviolability of private institutions (e.g., corporations)
Academic Freedom
Constitutional “Originalism”
Free Markets
Free speech and “expression”
Each of these positions was a creation of early modern liberalism, designed to overthrow a predominantly Aristotelian/Thomistic worldview. Each of these liberal features represent an aspect of what Alasdair MacIntyre has called “the privatization of the good.” Each was designed as a battering ram to demolish any prospect for a social, political, and economic order that - while never perfect - nevertheless understood that society must be ordered toward the end of advancing the telos of human beings.
Each of these features of liberalism is contentless, essentially boiling down to an “agreement to disagree.” While conservatives spent several generations decrying the scourges of “relativism,” their position effectively denied objective truth had any claim in the political order. As we have discovered, the challenge from the left is not relativism: they know what they believe, and pursue that goal with fierce and unwavering determination. It’s the defenders of Con. Inc. who are the relativists, promoting a world in which we the individual is the measure of truth.
It is claimed that each feature of liberalism is necessary because of the fact of pluralism. One hears the likes of David French and Rod Dreher invoking “the fact of pluralism” as the impregnable wall that prevents any efforts to enact authoritative law. Yet, they simultaneously bemoan the rise of a monolithic left that has no compunctions about the “fact of pluralism.” If you are a religious believer, too bad. There’s no room for heresy in the Church of American Progressivism. Pluralism is only a problem, an obstacle, and a handcuff for … conservatives.
The Aristotelian and Thomistic tradition never denied the “fact of pluralism”; it denied, simply, that our differences should be a matter of public indifference. What to liberalism seems a tolerant and decent regime, in the eyes of its predecessor tradition seems nothing more than cruel indifference, allowing clear vices not only to proliferate, but to enjoy implicit public approval.
Liberalism has become consistently more aggressive in extending each of these features to their logical conclusion - their own contradiction in the form of liberal totalitarianism. Seeming neutrality was abandoned when Aristotelianism and Thomism were routed. Today liberalism demands positive affirmation for what were once considered vices. Increasingly, progressives direct their heavy artillery at the natural family and any religion firmly rooted in the Biblical tradition and hence resistant to the positive embrace of liberal indifferentism.
Each of these liberal innovations thus ushered in the radicalization of liberalism that we see unfolding today. Take the example of academic freedom. “Academic freedom” was the tool used to eviscerate the religious foundation of colleges and universities throughout the nation, giving priority to the viewpoints of individual faculty over the religious mission of the instituion, and ultimately replacing what was in most cases a Christian religion with the new “liturgy of liberalism.” Unsurprisingly, a form of freedom unmoored from an existing and shared conception of the good within the university community is bound to morph into a demand to valorize various forms of unfettered license - greed, concupiscence, intellectual sloth - that defines today’s campuses. Yet, today it’s so-called “conservatives” who think that a defense of academic freedom will preserve them from progressive aggressions. They have picked up what was a liberal sword and have mistaken it for a conservative shield.
Thus, the national trajectory over the past seventy-five years has been one of a continuous movement to ever more extreme forms of liberalism. Conservatism Inc. has been adrift on the buffeting seas of unmoored individual freedom from the outset, wholly subject to the dominant currents of American liberalism.
Some conservatives are beginning to realize that the conservative losing streak was “baked into the cake.” Trying to remain partly liberal is like being “a little pregnant” - there is no such thing. Liberalism’s internal logic leads inevitably to the evisceration of all institutions that were originally responsible for fostering human virtue: family, ennobling friendship, community, university, polity, church.
Such post-liberal conservatives face not only the ire of progressives - naturally - but of “classical liberals,” so-called conservatives who are perhaps even more aggressive in their opposition to a competitor to liberalism. This opposition arises in considerable part because post-liberals reveal the nakedness of the emperor: the profound insecurity amid the mounting failures of movement conservatism. Moreover, “common good conservatism” poses a challenge to their institutional comforts - jobs, sinecures, status, nice offices in Washington, D.C. While denizens of “Con. Inc.” oppose the most radical form of the regime, their opposition is intentionally toothless, for instance offering up a flaccid “originalism” that consistently drifts leftward while the other side threatens to emerge from its purported “defensive crouch.”
These establishment “conservatives” play a key role in propping up the regime, and hence serve as useful foils - “controlled opposition” - for the powers behind the powers - the oligarchs, the corporations, the power elite. Those powers have a vested interest in supporting Conservatism Inc. even as those institutions resemble an army well-equipped for the last war, fighting for a “dead consensus.”
I will be writing at greater length in future posts about the deficiencies of, and alternatives to, the seven liberal features that I list above. This is a good time to alert our growing readership that we plan to move to a subscription model some time after the new year. Because those explorations will involve a fair amount of effort, I will reserve them for those willing and, I hope, eager to pay a little for what will likely be the early drafts of a future book. We intend to build an alternate movement, not through the support of increasingly woke corporations, but rather the modest support of numerous awakened ordinary and committed citizens who are beginning to understand the deeper nature of our plight.
For, the time being, I join my fellow post-liberal happy warriors in delineating, for your entertainment and (we hope) edification, the outlines of a better path forward.
Mr. Karr's dissatisfaction is valid but he proved your point - a successful movement will, by its very establishment as something in particular instead of everything (or nothing) in general will by definition be exclusionary (often by choice -- anyone can listen to someone -- you have to make a conscious choice at some point whether you like or dislike it -- be for it or against it -- plenty of people not on 'this side' will be glad they aren't on this side and extra glad your content is paywalled so they don't even have to see it or deal with it and can focus on whatever they care about -- but it's only a matter of time before they meet someone they know and trust who IS on this side - and perhaps eventually part of this actual movement -- then they have to reevaluate and reconcile their worldview based on a real experience -- not just ideas floating in the ether that don't challenge them. That's the power -- to make those against you face something real. A real person, a real movement. SO anyway you'll reach fewer people initially but to Mr. Karrs point you'll do well with this and I think you have to start somewhere. Plus you're being logically consistent with the idea of working against pluralism - creating a specific movement makes it real. For what it's worth (and it's not much I grant) - I never subscribe to anything but I see myself and my views reflected here and I want to be a part of it. Well done.
Mr. Deneen,
This is a very interesting article and endeavor, which I look forward to following.
To offer one constructive critique, I think you make a mistake in grouping Originalism with your list of positions. (By Originalism, I mean the theory that the words and clauses of the constitution mean what their ratifiers understood then to mean.) While it's true that Originalism provides a process, rather than an end result, that is appropriate in the context of the judiciary. To do otherwise blurs the line between the roles of the legislature and the judiciary.
And while it’s also true that faint-hearted Originalism has watered down the impact of this theory of interpretation, that is more of a critique of its practitioners than the theory itself. Indeed, it seems like the raison d'etre of folks like Professor Calabresi has become the work of conforming Originalism to public opinion on contentious social issues. That said, consider the very real possibility that even the faint-hearted practitioners of Originalism on SCOTUS may overturn Casey later this year under the legal logic of Originalism.
Imagine, as perhaps are more appropriate appraisal of Originalism, a body of precedent resulting from the lionhearted Originalism practiced by Justice Thomas.
This brings to mind my experience in reading the debates between Bork and Jaffa so many years ago. Pinning Jaffa down on his argument felt like trying to nail jello to a wall. I was left thinking: If I cannot fully grasp the application of Jaffe’s proposed theory of judicial interpretation, with training in law and philosophy, how would the public at large?
Lastly, I wish to offer a separate and overarching comment on your article. I recall one or more of the founders saying that our constitution was made for and could only be sustained by a virtuous people. If true, and this limitation was understood to be inherent in the modern liberal project, is it fair to place the blame with that theory or its practitioners (here, the founders)? Might blame be more appropriately be placed at the feet of the people? And perhaps more concerning, if there exists a waning or absence of virtue among the people, and these modern liberal positions are abandoned, what makes you think the people (and their institutions) would return to a more Aristotelian/Thomistic worldview. Wouldn’t the more likely scenario be an acceleration of the existing trajectory?