His Liberal Hour
Deconstructing the imaginary world of Alan Wolfe.
May 25, 2009, Vol. 14, No. 34 • By PETER BERKOWITZ
For liberals, a disposition to be open to religion showers benefits all around. It supports religion because it gives believers the right to practice something so important to them. It benefits religion's critics because it removes from them the ugly and illiberal temptation to denounce people with whom they disagree as mad or illusory. And it benefits the society both of them share because it gives them something they can hold in common even if they disagree, not only over which gods they hold sacred, but whether any gods should be held sacred at all. There are few such really great bargains in politics. Religious freedom is one of them. Whatever the future of liberalism, a place for religion must be guaranteed.
Would that Wolfe had been able to consistently maintain this scholarly sobriety and fidelity to the liberal spirit.
Peripheral opinions in this book contain troubling signs. Wolfe glibly portrays Thomas Hobbes as an opponent of procedural fairness who denies human equality and thinks that sovereignty's only benefit to individuals is protection. In fact, Hobbes is a father of modern proceduralism, who argues that men are by nature equally endowed with inalienable rights; that the laws of nature, which are immutable and eternal, provide universal rules that, when enforced by a sovereign authorized by the people, bring peace; and that among the benefits of peace are agriculture, industry, travel, trade, technology, arts and letters, and society.
In addition, despite the liberal tradition's determination to distinguish scientific reasoning from moral and political reasoning--which, of course, draws on the truths of science--and his own insistence that liberalism demands a clear-eyed assessment of how the world actually works, Wolfe, not unlike crude religious critics of Darwin, dubiously suggests that evolutionary psychology must be rejected on moral and political grounds. Instead of engaging the science and social science that lies behind it, Wolfe dismisses evolutionary psychology in large measure because it shares conservatism's "pessimistic views about human nature," teaching that our instincts, passions, and fundamental cognitive faculties impose significant constraints on what can be accomplished politically.
And Wolfe recklessly attacks Paul Berman, whom he introduces as a prominent liberal thinker who supported the war in Iraq. According to Wolfe, Berman "leaves no doubt" in a long 2007 essay on the European Islamic philosopher Tariq Ramadan that "anyone like Ramadan, who tries to negotiate his way between Islamic roots and modern liberal democracy will fail." Yet Berman says nothing of the sort. He carefully avoids ultimate claims about Islam and modernity. Instead, his probing analysis shows how Ramadan uses the language of European leftism to exploit the credulity of European leftists and gain a foothold in Europe for Islamic extremism.
These disturbing lapses presage the lengths to which Wolfe goes to distort conservative ideas and practice. In the chapter "Mr. Schmitt goes to Washington," he aims to discredit contemporary conservatism by demonstrating the illiberal sensibility it shares with the German political and legal theorist Carl Schmitt who, Wolfe explains, was "a consistent political reactionary" and "in many ways more Nazi than a number of prominent Nazis." To be sure, Wolfe tones down the arguments he introduced in "A Fascist Philosopher Helps us Understand Contemporary Politics" in the April 2004 issue of the Chronicle of Higher Education, which I criticized in these pages two years ago. Although he qualifies his condemnation in various ways and highlights the postmodern left's explicit and enthusiastic embrace of Schmittian ideas, it is Wolfe whom his chapter discredits.
Scorning liberal democracy's freedom under law, Carl Schmitt maintained that politics is about vanquishing your enemy through violence. This requires a sovereign who is above the law and decides when an emergency--the ordinary state of affairs, according to Schmitt--demands suspension of the law.
For Wolfe, Berkeley law professor John Yoo, who served from 2001 to 2003 as deputy assistant attorney general in the Justice Department's Office of Legal Counsel (OLC), epitomizes the Bush administration's Schmittian belief that the executive is above the law. Certainly, in his official capacity, Yoo wrote legal opinions, and in his scholarly capacity has written books and articles, arguing that the Constitution gives the president expansive powers to conduct foreign affairs and lead the nation in war, including the power to disregard those laws which, in his judgment, encumber his duties as commander in chief. Most controversially, Yoo authored OLC opinions in 2002-03 defining torture narrowly and affirming the president's wide latitude to order highly coercive interrogation of unlawful enemy combatants.
It is wrong, however, to make Yoo, who served in the first two years of the Bush administration, the embodiment of its jurisprudence. Wolfe notes that Jack Goldsmith, whom Bush named to head OLC in 2003, resigned in 2004 after clashes with administration lawyers concerning constitutional questions. But Wolfe omits to mention that, before resigning, Goldsmith withdrew two of Yoo's opinions on coercive interrogation.
Notwithstanding its early overreaching in grappling with the novel and difficult legal issues presented by the threat of terrorists armed with weapons of mass destruction, the Bush administration (contrary to Wolfe) exhibited its fundamental belief that the executive branch was subject to law through its compliance with Supreme Court decisions in 2004 and 2006 concerning the treatment of detainees.
But, perversely, Wolfe treats Yoo's harsh criticism--three years after he left office--of the Supreme Court's 2006 ruling in Hamdan v. Rumsfeld that military tribunals required congressional authorization as a faithful reflection of the Bush administration's disdain for law. Surely a more obvious and accurate measure of the administration's opinion about the executive's legal responsibilities was its actual response to Hamdan, which was to ask Congress to authorize military tribunals, which Congress promptly did!
More generally, Wolfe obscures that, from 2005, the Bush administration clearly affirmed the constitutional separation of powers by requesting and receiving express congressional approval of detention, habeas corpus, surveillance, and military commission plans.
Wolfe's condemnation of conservatism would not be complete without establishing that the political philosopher Leo Strauss, and those neoconservatives who learned from him, are guilty of "adopting Schmittian ways of thinking from time to time." For proof, Wolfe quotes from Strauss's Natural Right and History:
In extreme situations there may be conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law.
This, Wolfe asserts, "could just as easily have been written by Schmitt." Except that it couldn't. Wolfe never bothers to inform his readers that the passage contains not Strauss's view but his exposition of Aristotle's teaching on the relation between justice and war. What's more, the Aristotelian teaching Strauss is expounding--that even war is governed by justice--could not be further removed from Schmitt's view that politics, whose defining moment is war, is an autonomous sphere beyond morality.
Wolfe gives the game away by acknowledging that the liberal tradition itself teaches the need for what John Locke called prerogative: "The power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it." This recognition of law's limits was embraced by Thomas Jefferson, Abraham Lincoln, and Franklin Roosevelt, to name three presidents in the liberal pantheon. What distinguishes the liberal tradition's understanding from Schmittian power politics is that prerogative's exercise must be rare and is legitimated by the public interest in preserving freedom and democracy.
Beyond this, although Wolfe is pleased to cite Jack Goldsmith's 2007 Senate testimony criticizing Bush administration lawyers' penchant for secrecy, he fails to confront the evidence Goldsmith provides in his book, The Terror Presidency, that top Bush administration lawyers rejected the appeal to prerogative, believing instead that they were following the law--mistaken in particular cases though they may have been--out of respect for the law, and acting on principle to protect the Constitution and defend the nation.
Given the violence he does to texts and to the historical record, you have to wonder what purpose could legitimate Wolfe's suspension of ordinary scholarly norms to contrive an intellectual affinity between today's conservatives and a fascist political theorist.
His ugly caricature is about more than bashing George W. Bush and convicting neoconservatives of a "propensity toward Schmittism." Occasionally, he throws a bone conservatism's way, declaring, for example, that "followers of Leo Strauss . . . have done so much to help us to appreciate the importance of the American founding." Yet by insisting that progressive politics is the one true heir to which the founding gave birth, Wolfe betrays a profound misunderstanding of the nation's founding--and stigmatizes the varieties of conservatism in America as foreign and illegitimate. While a return to the broader liberal tradition, rightly understood, would temper our polarized politics, Wolfe, regrettably, abuses our common liberal heritage to widen the partisan divide.
Fortunately, The Future of Liberalism contains the seeds of its correction. By cultivating the liberal temperament and liberal dispositions--that "intellectual openness" and "commitment to fairness" of which he writes--Wolfe can put his understanding of the liberal tradition on a theoretically sounder, historically more accurate, and intellectually more scrupulous foundation. The liberal tradition so understood will provide fewer lessons in what to think, and greater lessons in how to think, about politics. It will make room for the conservative case for freedom, attend to freedom's excesses and progress's disadvantages, and appreciate that, understanding one's rivals' words and deeds in context, and as they intended them, is not only a scholarly virtue but also a liberal virtue.
The aim is not, perish the thought, to compel liberalism to yield agreement between progressives and conservatives. The aim is to forge a liberalism that, true to its worthiest aspirations, advances the cause of freedom by fostering the indispensable debate between them.
Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution at Stanford.