Johnathan O’Neill joins host John Grove to discuss his recent book, Conservative Thought and American Constitutionalism Since the New Deal. 

John Grove:

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org and thank you for listening.

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty. In his recent book, Conservative Thought and American Constitutionalism Since the New Deal, Johnathan O’Neill chronicles the conservative movement’s response to and development following the New Deal’s Constitutional Revolution.

Conservatives found themselves in a unique situation, one in which the old constitutional order had not been utterly destroyed, but one in which, to use the author’s words, a new dispensation was laid over its predecessor without fully undoing the reality or the memory of what was defeated. The New Deal and subsequent constitutional developments gave birth to a more self-conscious conservatism, but it did so in circumstances of uncertainty. How should one respond to this new situation? What should we make peace with and what should we fight? What touchstones do we appeal to in resisting this encroaching Leviathan?

Tradition, philosophy, written law, the so-called principles of the regime, be they democracy, natural rights, natural law, or some other fundamental principle? Self-described conservatives did not have a unified answer and various approaches sometimes led to interesting and consequential differences. Joining me to discuss the dynamics of 20th-century conservative constitutional visions is Professor of History at Georgia Southern University, Johnathan O’Neill. Jonathan, thanks for coming on.

Johnathan O’Neill:

Oh, wonderful to be here. I very much appreciate the invitation. I’ve been looking forward to this talk for a while now.

John Grove:

Great. This book is structured around four basic groupings of conservatives, traditionalists, neoconservatives, Straussians, and libertarians. You walk through very systematically how these groups addressed questions like the expansion of the administrative state, the decline of federalism, their vision of the presidency, judicial review. Let’s start, why these four groupings? What are the distinctives of these four groups? And what did each see as the essential threat that this New Deal political order posed? All we’re concerned with it, but maybe sometimes for slightly differing reasons?

Johnathan O’Neill:

I start the book out, as you know, by defining in a thumbnail way the major commitments of each of the schools that you named, and from there try to look at how the post-New Deal developments, how they assess them and responded to them. While it’s hard to quickly summarize each of them, I attempted to do it in the beginning of the book. I think that traditionalists’ primary focus is on the local custom, oftentimes with a religious basis, but not exclusively so, and tending towards a conception of American political order as inherited from the long tradition of Western civilization, more particularly the English and the common law Christian humanist tradition.

Libertarians focus on individual liberty and suspicion of the state as inherently coercive and dangerous, an orientation towards private ordering through the market and spontaneous order. Straussians, a little harder to pin down in part because they argue so much amongst themselves, but an orientation towards the great debates of Western civilization, in particular, biblical morality versus ancient philosophy and trying to understand America as in some sense and its constitutionalism as a place where this vitiating tension can still exist and be argued about and improve people at the individual level of virtue, but also improve our politics in America, while a modern regime still has an openness to this kind of input, and therefore they find American constitutionalism worth defending.

Neoconservatives, again, an always definitional problem, in part because they gather so much from preexisting forms of conservatism and oftentimes resolutely refuse to define themselves. But I think for my purposes, the characteristic element of neoconservatism that I’m interested in is its assessment of post-1960s progressive liberalism as just asking too much of the state. A great word that they always used in the period was overloading, that the state is overloaded, and the polity is asking you to do things that just can’t be accomplished by a government.

Another element of, which we’ll talk about more I’m sure, of the neoconservatives is the idea of a new class, of a managerial conception of politics in which elites in various kinds of institutions, media, government, cause lawyering are pursuing… They have an inherent interest in the growth of the state because it gives them something to do and something to direct. I think that that plays very much in their assessment of modern post-New Deal conservatism.

John Grove:

You distinguished pretty clearly between Straussian and neoconservatives. A lot of times those two are lumped together. Why has that conception developed, and why do you think that’s wrong?

Johnathan O’Neill:

I talk about this a fair amount in the chapter on the presidency, and of course, I mean, the behemoth in the room here is the debate about the post 9/11 foreign policy and the George W. Bush administration invasion of Iraq. I think very quickly the media conflated Straussian and neoconservatives in part because there were some people with somewhat attenuated Straussian connections or influences in the Bush administration. But it quickly became this conspirational notion that Straussians were directing American foreign policy by hijacking neoconservatism, which no one was really good at defining anyway.

It just became this post-modern media firestorm without a lot of basis and fact. I spent a couple, well, at least a section of one chapter sorting this out and trying to show that there are many neoconservatives who are not Straussians. There are Straussians who condemned the Bush administration foreign policy. There are Straussians who explicitly rejected the invasion of Iraq. There are Straussians who use one of Strauss’ masses or concepts of the regime or politeia as this fundamental ordering of society, its norms, its mores, not simply its laws, its institutions that is pervasive and hard to change.

If you understand that, you would understand why just writing a new Iraqi constitution isn’t necessarily going to remake the place. There were Straussians making that argument against the gist of Bush administration policy. I think it took me a lot of pain and suffering to sort through all of that and make sense of it for myself, but I became increasingly convinced that this conflation of Straussians and neoconservatives is just mistaken and was a media bubble that a lot of people made a lot of for a short time. You don’t really hear much about it anymore.

John Grove:

How did some of these groups differ in terms of the way they thought about constitutionalism and political order? I draw out one distinction, it’s partly just it’s a pet interest of mine, but the traditionalist, you talk a good amount about the traditionalists’ nomocratic vision of constitutionalism, very much process oriented about the establishment of particular rules, very much went along with a heavy emphasis on federalism and the division of authority versus some conservatives that had more of an emphasis on fundamental principles, more ends oriented vision of constitutionalism. How did their overarching vision differ before we get into some of the specifics?

Johnathan O’Neill:

I learned a lot in writing about this about some of the deeper more principle basis for traditionalist or customary conservatism, which oftentimes is just dismissed as it’s ours and therefore it’s good or unquestioning, thoughtless loyalty to one’s own. The distinction which comes initially from Michael Oakeshott between a nomocratic regime and a teleocratic regime. Telos, end, right? A teleocratic regime is a regime with a kind of uber value that it tries to instantiate and permeate because it’s loyal to it, but as a pervasive political program, whereas a nomocratic regime, as you suggested, is more about process, about deliberation on a small scale.

It doesn’t have an ambition to remake things in the name of a teleocratic concept. It’s much more modest in its understanding of what politics is capable of and what institutions are for. On some level it’s because it is rooted in people’s customary shared moral understandings. Therefore, because we are rooted as a civilization in this way, we don’t need to ask institutions to remake our civilization. We just need to use them to abide together and make common decisions together.

I think that a lot of traditionalists would say that, and this is one of the fundamental cleavages in American conservatism, would say that the release of the equality idea, the egalitarianism that comes a lot of these people would say from the Declaration of Independence and from Abraham Lincoln’s ratcheting up of the idea of equality has derailed their understanding of the way the regime really should be. As I’m sure you have some familiarity with, this is a major conflict between people like some Straussians and some traditionalists. You see it come up in the book.

One of the things that certainly became clear to me over time thinking about traditionalists and studying people like George Carey or Russell Kirk is a sense of loss. The regime as they knew it, they just see as, in some basic sense, irretrievable. You see