In a nutshell, my friends argued that something is better than nothing.
I argued that McCain-Feingold was unconstitutional and that the SCOTUS had therefore done well in declaring it so.
At stake was a basic disagreement, I think, about the nature of law.
I think that law is a determinate expression of the inherent juridical ties that bind us together and govern our conduct in society.
My friends seem to consider that law is merely a tool for implementing social policy.
I must admit that empirically, they have recent history, at least, on their side.
A broader view of history would, I believe, confirm a sneaking suspicion I have: that when legislatures begin using law as a mere tool for the implementation of social policy, social foundering (or the threat of it) is present and inevitable.
I do not deny that law is an effective tool for implementing social policy. I only say that law is not, and cannot without courting disaster be considered a mere tool for such an end.
These thoughts crystallized for me as I watched the following video (H/t to Donald R. McLarey at The American Catholic):
McLarey's post has some great commentary, as well as some exquisitely useful and entertaining links: go to be edifited and delighted.
But I titled this post, "Adamsian Conservatism" and I have not explained why.
Well, the causa proxima was an observation I made to that effect during the course of the aforementioned FB exchange, in response to a suggestion that I am somehow...in thrall...to big business, because I think McCain-Feingold was unconstitutional.
I responded, roughly, that the rule of law is central to free society, that tolerating a patently unconstitutional law in light of a few of its effects is deleterious, and that, no, I am not in thrall to big business, but that I am an "Adamsian" conservative who therefore has one eye on Hamilton at all times.
What do I mean by this?
Essentially, that ordered liberty is possible only for people who 1) love good and hate evil; 2) have sense (wisdom) enough to tell them apart.
Liberty, in the minimal sense of freedom from external coercion, may be had by any group numerous, motivated, talented and well-armed enough to get it.
The same group that wins its liberty in this sense may and in fact does often turn around and quickly deny liberty to some other group or faction within society.
The very Constitutional Convention was called - at least in part - because of Americans’ intimate experience with this fact.
So, the Framers submitted that the people ordain and establish the Constitution in order to secure the blessings of liberty to themselves and their posterity.
The blessings of liberty are, in short, the conditions for general flourishing of fully human life.
As John Adams noted in his Thoughts on Government:
The foundation of every government is some principle or passion in the minds of the people. The noblest principles and most generous affections in our nature then, have the fairest chance to support the noblest and most generous models of government.… A Constitution, founded on these principles, introduces knowledge among the People, and inspires them with a conscious dignity, becoming Freemen. A general emulation takes place, which causes good humour, sociability, good manners, and good morals to be general. That elevation of sentiment, inspired by such a government, makes the common people brave and enterprizing. That ambition which is inspired by it makes them sober, industrious and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business—some politeness, but more civility. If you compare such a country with the regions of domination, whether Monarchial or Aristocratical, you will fancy yourself in Arcadia or Elisium [sic].Without the blessings of liberty, thusly conceived, no free republic can long remain in existence.
The Declaration of Independence states that the purpose of government is, among other things, the protection of liberty.
If liberty, improperly exercised, must inevitably decay into anarchy (from which arises despotism), then government is interested in - and must therefore be rendered capable of enforcing the proper exercise of liberty, i.e. to secure the blessings thereof.
This is a paradox - the paradox of free society: how to resolve it?
America offers a way toward a solution.
If Adams is correct when he says that the foundation of every government is some principle or passion in the minds of the people, then the decision to ratify the Constitution was necessarily an expression of the American people’s self-understanding.
If the Constitution depends on the people’s attachment to the noblest principles and most generous affections of human nature, then the success of the society formed under the new representative framework will depend upon the people’s ability to live up to their estimation of themselves, that is, to prove their professed attachment.
Thus, when Adams said that a government founded on the noblest sentiments and most generous affections of our nature will introduce knowledge among the people and inspire them with a conscious dignity, he was not saying that a republican form of government automatically does these things.
Adams was rather recommending such a course of action, since no government that fails to introduce knowledge, inspire the people with conscious dignity, etc., can hope to ensure what the Preamble to the Constitution called, “The Blessings of Liberty.”
There is a further point, involving the relation of virtue to morality.
This is a basic problem in politics, the theoretical treatment of which we could trace at least as far back as 4th century BC Athens.
One of the salient points in the history of the treatment of the problem occured in the waning days of Rome’s Empire, when the great Roman rhetor and philosopher, St. Augustine of Hippo, wrote a treatise establishing the aptness of Christian religion to inform and perfect human beings for Roman citizenship, during the course of which he found himself asking what the mores of the Romans were, that God should have deigned to help them in the expansion of their rule (De civitate Dei V.xii.1-2).
In short, the mores of a society are those things that the members of society love or desire in general. The difficulty, however, is that good mores - while necessary - are not sufficient.
In order for society to thrive, in order for the blessings of liberty to be preserved, society’s members must actually possess the characteristics generally esteemed as good and worthy - they must have virtue.
The political haggling over the charter of the Bank of The United States is apt to illustrate the principle.
In 1790, the financial position of the United States was not exactly rosy.
Alexander Hamilton proposed a scheme for the salvation of the young republic’s financial solvency and the foundation of its economic future. Congress was persuaded, and passed Hamilton’s proposal. Only the President’s signature was outstanding.
In those days, Presidents would refuse to sign a bill only if they had specific Constitutional qualms about it.
The question therefore turned on the constitutionality of Hamilton’s plan.
The new Constitution vested in the Congress of the United States with power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The POTUS, George Washington, asked his Secretary of State, Thomas Jefferson, to share his opinion of the constitutionality of Hamilton’s plan.
Jefferson responded in a letter, in which he refused to reduce the sense of the Constitutional term, “necessary” to synonymy with “expedience” and concluded that Congress had not power therefore to erect a bank (the cornerstone of Hamilton’s proposal), because the Constitution did not grant that power explicitly to Congress, and a Bank were not, stricto sensu, necessary.
The President also asked Hamilton, who was his Secretary of the Treasury, to make a case for the plan.
Every power vested in a Government is in its nature sovereign, and includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power.The limits of sovereign power are only that the action countenanced by a legislature be, “…not immoral, nor contrary to the essential ends of political power.”
The upshot of all this is that Jefferson recognizes no limit to the power of government other than the textual or structural limits of its constitution, while in practice, he would have made the whole financial future of the United States to depend on his opinion of the meaning of a word.
Hamilton, on the other hand (who is popularly reputed a conniving, wrangling, haggler, with neither moral sense, nor the restraint that ought to accompany it), here shows us the depth of his political thought and reflection on human nature.
Hamilton sees, where Jefferson either does not, or does not care, that no government will serve the good, unless the people for whom the government is given love good and hate evil.
The essence of Hamilton's argument is that government can function only when no officer or agent of government could dare, for fear of public outrage, to do evil in the light of day, and only when public officials are terrified of public wrath in the event that they should fail publicly to prosecute and punish evil-doers according to the law.
The shared notion of right and wrong, and not the constitutional structure of a government, is the last bulwark against tyranny.
Without good government, order in social life will decay, for there is, as Publius has noted:
[A] degree of depravity in mankind which requires a certain degree of circumspection and distrust.Nevertheless, as there are these:
So there are other qualities in human nature which justify a certain portion of esteem and confidence.Publius' point is that:
Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another. (Federalist #55)Let the blessings of liberty be something called the good life.
The good life requires liberty - and liberty, if it is to guarantee and not destroy the good life, requires virtue, and virtue does not come easy.
Some forms of government subvert virtue, though no government can provide it.
All good government requires virtue, and republican government requires more of it, and in more members of society, than any other form of government.
This is what I meant by "Adamsian conservatism" with an eye on (an eye toward) Hamilton at all times.