Conservative Donnybrook

Sorry. Part II is the longest, but it all goes together. Part I can be found here.

What is a Neo-Whig?

As the title to this paper indicates, I will be arguing in favor of an approach to constitutional interpretation that in some way relates to the Whig political party. I qualify this by calling for a Neo-Whig approach and so one can only assume that there is a difference between the Whigs of old and the Neo-Whig that I call on today. Let us first look at what I take to be the Whig party’s stance toward government and so define that term. Afterward, I will describe in what ways the new Whig of today, or Neo-Whig (although I detest using the designation “neo”)  should differ from the old, thus making what I will call a Neo-Whig.

A. Who Were the Whigs?

The Whigs that I have in mind are those politicians that were largely responsible for the Glorious Revolution of 1688 in England. In particular, I appeal to those Whigs as Edmund Burke described them, and as I understand them from Burke’s description. Burke viewed the Glorious Revolution as a “revolution not made, but prevented.”[1] According to his version, the Whigs of the Glorious Revolution overthrew James II “to preserve [their] antient indisputable laws and liberties, and that antient constitution of government which [was their] only security for law and liberty.”[2] Indeed, the very thought of “the fabrication of a new government” was enough to [rightly] fill the Whigs with “disgust and horror.”[3] Instead the Whig view of proper government was to preserve the inheritance they had received from their forefathers.[4] Innovations by King James II had forced those patriots who valued that inheritance to take the drastic step of deposing James in favor of William of Orange.[5] Whether  James II actually was capable of working fundamental constitutional changes, the Whig interpretation, which Burke strongly proclaimed, held that the king had and that he would.[6] It is quite likely that the real reason behind the deposing of the king was his Declaration for Liberty of Conscious, in which he extended toleration to Catholics and Dissenters and that anger at the king for so doing and fear that a popular uprising may result in another English Commonwealth prompted the Glorious Revolution.[7] In avoiding the establishment of a new Commonwealth, the William of Orange was preventing a looming revolution by deposing the king.[8]

One of the most influential books that Burke wrote was Reflections on the Revolution in France in which he reflected on the origins of the French Revolution.[9] In that book, he predicted that a revolution founded in ideological innovation was doomed to end in disaster.[10] “Burke declared, looking upon the ghastly spectacle of the French Revolution, that is was not merely mistaken, but evil, to attempt to govern a nation by utopian design, regardless of prudence, historical experience, convention, custom, the complexities of political compromise, and long-received principles of morality.”[11]

The American War for Independence stands in stark contrast to the revolution in France. In line with this Whigian train of thought, Russell Kirk more recently writes of the American patriots:

The men who made the American Revolution were not abstract visionaries. Suffering practical grievances, they sought practical redress; not obtaining that, they settled upon separation from the Crown in Parliament as a hard necessity. That act was meant not as a repudiation of their past, but as a means for preventing the destruction of their pattern of politics by King George’s presumed intended revolution of arbitrary power, after which, in Burke’s phrase, “the Americans could have no sort of security for their laws or liberties.”[12]

Where the French sought to enshrine the new Enlightenment principles of “Liberté, égalité, fraternité” to replace the outmoded ideas of their French past, the Americans sought a return to the chartered rights of Englishmen[13] and a return to the old modes of living that Americans had lived under for more than 150 years prior to the Revolution. In essence, the Americans wrote for themselves a “conservative constitution.”[14]

This view is bolstered by a survey of the governing document that the Founding Fathers drew up. When one reads through the Constitution, especially the Constitution originally ratified – one lacking a Bill of Rights – one finds a document of extremely practical application. It does not contain the high language one would expect to find in a document extolling a new ideology as one finds in so many governing documents of recent vintage, like the so-called European Constitution establishing the European Union. Rather, it is a functional document, creating a national government that was to coexist with pre-existent state governments – a government which would sit atop these prior governments and exercise only those delegated powers which it was given by the states.

Even once the Bill of Rights was added to the document, it could still be fairly called a conservative document, since every single one of the rights offered for ratification could already be found in one or more of the various state constitutions. Indeed, some of the rights identified by the Bill of Rights could lay claim to a history that stretched back hundreds of years to the Magna Charta.[15] Simply put, there is little, if any, innovation present in the Constitution. Continue Reading »