Andrew C. McCarthy, a former federal prosecutor and New York Times bestselling author, has joined PJ Media as a PJ Columnist. Read his inaugural column here and watch his interview with Roger L. Simon at PJTV.
by Andrew C. McCarthy
May 13, 2012
Detail of a portrait of Edmund Burke by James Northcote. Photograph: Courtesy of Royal Albert Museum/Bridgeman Art Library
For Edmund Burke, liberty was the distinguishing feature of the British constitution. He did not, however, mean liberty in some vacuous, hopeychangey sense. “The only liberty I mean,” he wrote, “is a liberty connected with order; and that not only exists with order and virtue, but cannot exist at all without them.”
When we hear the term “ordered liberty” nowadays, it is generally in a legal context. It has become famous — we might better say “infamous” — in the Supreme Court’s jurisprudence of “incorporation”: the doctrine holding that Bill of Rights protections that restrict the federal government are also validly asserted against the state governments, through the Fourteenth Amendment. The doctrine’s premise is dubious: state sovereignty is the foundation of our form of constitutional governance; if it had been the purpose of the Fourteenth Amendment to undo that basic assumption, one might have expected that incorporation would be clearly prescribed — and that it might have taken less than sixty years for the Supreme Court to start enforcing it.
That said, though, the real infamy lies in the doctrine’s inconsistency. It does not apply all of the Bill of Rights against the states; only those rights that the judges, in their wisdom, determined to be “implicit in the concept of ordered liberty,” as Justice Benjamin Cardozo put it in Palko v. Connecticut (1937). That is to say, there is an arbitrariness to “ordered liberty” as judicially manufactured. Caprice, even if it piously flies under the “rule of law” banner, undermines the very idea of order.
Still, it would be foolish to insist that liberty is not a dynamic concept or that our perceptions about it do not evolve. To take two powerful examples, our notions of equality and cruelty have dramatically changed in just the last three centuries. Both are now attuned as never before to the dignity of each human being — at least, once a person is born.
We can argue, and do and will argue, over the sufficiency of our evolution and over the means of achieving it — I happen to think we are a body politic not a body legal, and that change brought about by the consensus of the community is far to be preferred to change imposed by law, and especially by unaccountable judges. Plainly, however, our expectations about liberty, and thus about ordered liberty, do not stand still. Not all change is progress, and lots of it has been downright destructive. But no one strives to be … the same. We want to be better, and when we are, change can be healthy.
This is no doubt why Burke thought liberty and order inseparable. This was not a unique insight on his part, of course. Leftist radicals and the Islamic supremacists who, in many ways, are their mirror image, speak incessantly of “freedom” … but always with the caveat that it can thrive only after submission to their totalitarian societal schemes. Therein is the inexorable path to such absurdities as Rousseau’s insistence that one would be “forced to be free” – i.e., forced into compliance, if he dared deviate from the “General Will.” Talk about caprice!
Burke’s was an order of a very different kind: an order rooted not in autocratic power but in the power of virtue. It was not statutes, regulations, legislators, bureaucrats, judges, or self-interested proclamations of what the “rule of law” called for that enabled society to flourish, to strive for the possibilities that freedom unleashes. It was the society’s inherent virtue — the people’s perception of right and wrong, their character, their sense of honor and shame.
“Only a virtuous people are capable of freedom,” Benjamin Franklin observed. “As nations become more corrupt and vicious, they have more need of masters.” What is it that makes us virtuous? What slides us toward corruption and viciousness? I look forward to a long deliberation on those questions. It is a privilege to be able to explore them here at PJ Media, among friends and colleagues I so admire, and readers I feel like I already know — after all, I’ve been one for a long time!