Commentary Magazine


Our Talmudic American Conservatism

One of the top items at the Economist’s website today was its most recent “Lexington” column from the print edition, which offered a modest proposal: discriminate against lawyers in Congress by establishing an upper limit on the number of law degrees in the legislative branch. The Economist is unhappy with the “legalistic” approach Americans take to their system of governance, and seems to draw a parallel between the polling unpopularity of lawyers and that of members of Congress.

I think the Economist misses an important point about why American governance is conducted in this language, and why that’s a good thing. And though the Economist seeks to dismiss the behavior it describes, in raising the issue it does at least present us with a moment to contemplate an aspect of American politics that bears defending, and loudly. When in the course of attacking lawyers (and specifically Ted Cruz–who else?) the magazine wrote:

The imbalance is not new: more than half the men who signed the Declaration of Independence had a legal training. But a legalistic approach to politics is no longer serving America well. Today’s budget wars are deeply political. They reflect unresolved debates that divide the country: over equality and redistribution, risk-taking and safety nets, and the role of government itself. Seen through foreign eyes, the current dysfunction within Congress is at once distinctively American and recognisable as a political crisis within a grand coalition: in essence the Tea Party is walking out on other members of the Republican alliance, whom you might call the Business Party, the National Security Party and the Christian Values Party. But too often, these budget battles are being fought with legal arguments about precedent and legitimacy, advanced by politicians trained in the adversarial, prove-me-wrong traditions of American law.

I sympathize somewhat with the sentiment that the role of emotion, rhetoric, and social solidarity cannot be completely removed from politics. But let me step in here to defend the law (and the lawyers). This country has a special relationship with its founding documents, in which they are treated almost as revelation. It’s no surprise that the historian Pauline Maier titled her book on the development of the Declaration of Independence American Scripture.

Yet it’s not a religious document, only one that is treated with religious reverence. I’m reminded of the scene in the West Wing when the (Democratic) president’s speechwriter is furious to discover that a man whose reputation he had long defended was actually a Cold War turncoat who worked for the Soviets decades before. “This country is an idea,” he says angrily. “And one that’s lit the whole world for two centuries.”

It was Daniel J. Boorstin’s contention that this idea of America stood in place for any real post-independence philosophical and ideological development. I discussed Boorstin’s idea of American “givenness” back in April, and referenced a COMMENTARY essay he wrote on the topic in 1953, which was based on a book he was about to publish called The Genius of American Politics. He explained “givenness” in the essay as “the belief that values in America are in some way or other automatically defined: given by certain facts of geography or history peculiar to us.”

In the book, Boorstin elaborates and explains that this lack of a need for new ideological theorizing is partially responsible for the form that our historical review tends to take: through massive biographies of the Founders, in which we seek to understand our secular American saints rather than write our own ever-changing scripture. Boorstin writes:

Political theory has been little studied in the United States. For example, departments of political science in many of our universities show more interest in almost anything else than in political theory. This, too, can be explained in part by the limitations imposed by the “preformation” point of view. If our nation in the beginning was actually founded on an adequate and sufficiently explicit theory revealed at one time, later theorists can have only the minor task of exegesis, of explaining the sacred texts. Constitutional history can, and in many ways has, become a substitute for political theory.

What this is, in its own peculiarly American way, is an essentially talmudic approach to American law. As we see from Pauline Maier’s characterization of the Declaration of Independence, that document was a kind of dogmatic explication of God-given laws. The Constitution and amendments that followed it served as the oral law to the Declaration’s written law, a practical guide to guard and fulfill inarguable principles.

America’s Jews, then, are well positioned to understand exactly what the Economist complains of. Orthodox Judaism has halakhic guidelines preventing certain actions that would be sanctioned by a plain reading of the Torah so as to guard against transgressing biblical laws. As I discussed in my post yesterday, the amendments to the Constitution were largely to prevent a situation in which tyranny could develop. They are not a “break glass in case of emergency” last resort in the event that tyranny shows up. They err on the side of caution and seek to rule out actions that might seem on the surface to be in accord with America’s founding ideals but which could put the country on a slippery slope.

“This is our kind of conservatism,” Boorstin wrote, by which he meant a temperamentally conservative outlook rather than an ideologically conservative outlook. But the Economist and numerous others–many more today than when Boorstin wrote those words–see this is as so much hypochondria. It is not intended to be neurotic, and when employed by conservatives today it is not intended to be bullying–though when applied by ideological conservatives who are not also temperamental conservatives it can certainly come across that way.

It is simply intended to be faithful to an idea. Because this country is an idea, and it is one that has lit the whole world for two centuries.

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