The Basic Symbols of the American Political Tradition by Willmoore
Kendall and George Carey (Washington, D.C.: The Catholic
University of America Press, 1995).
The Conservative Affirmation by Willmoore Kendall (Chicago:
Henry Regnery Company, 1963).
John Locke and the Doctrine of Majority-Rule by Willmoore
Kendall (Urbana, IL: University of Illinois Press, 1965).
Despite Willmoore Kendall's (1909–1967) status as a leadingfigure in the early conservative movement and a preeminentpolitical theorist, his work has fallen into relative obscurity. Thisneglect is attributable in part to the nature of his scholarly output.The bulk of Kendall's production consists of essays and reviews.Apart from John Locke and the Doctrine of Majority Rule,1Kendall's only book-length projects were The Conservative Affirmation2(itself a collection of thematically related essays) and TheBasic Symbols of the American Political Tradition,3 adapted froma series of his lectures, co-authored with George Carey andpublished posthumously. Kendall also served as a founding editorof National Review, to which he contributed many essays. Inaddition, he was an enthusiastic writer of letters, an activity thatconsumed a great deal of his time.4
Additionally, Kendall's thought is not easily categorized anddoes not sit comfortably at home even among his fellow conservatives. Kendall rejected free-market absolutism, the Tory traditionalismof Russell Kirk, and those who he found to be excessivelyapprehensive of the state. Unlike conservatives of a morepessimistic or aristocratic bent, Kendall at heart was steadfastlyoptimistic about the basic virtue of the American people and theircapacity for self-government. This confidence stayed with Kendallas his scholarly investigations took him from left to right, andfrom the value-neutral constructions of modern political scienceto a political philosophy grounded in classical conceptions ofjustice and morality.
Central to Kendall's writings throughout his career was hissuspicion of institutional arrangements that place governmentaldecision-making regarding the rights of individuals outside of thepower of majorities to mediate and regulate. This can be seen inKendall's first major work, John Locke and the Doctrine of MajorityRule,5 which was immediately recognized as an important reassessmentof Locke's thought and secured Kendall's reputation asa leading political theorist.
In John Locke Kendall seeks to address what he sees as theinadequacies of the current state of scholarship on the issue ofmajority rule, which Kendall sees as "the central problem inmodern politics and of modern political theory.""6 He intends tostudy the problem through a ""series of monographs"" focusing onthe development of thought on majority rule, of which John Lockeis the first (regrettably, it was also to be the last).
Despite the centrality of the problem of majority-rule topolitical theory, it is has been heretofore dealt with only peripherally,Kendall argues. One reason for this is that, ""since 1789 (orthereabouts),"" theorists did not deal with political and economicquestions as separate concepts, identifying democracy ""now withcapitalism and now with socialism, and men unhesitatingly take itfor granted that majority-rule is merely another expression for theeconomic emancipation of the poor.""7 Another is the historicaldeterminism of thinkers such as Marx, Hegel, and Spengler andtheir followers, who posit the inevitability of political and socialdevelopments. In doing so, they ""reduce the issue at stakebetween the defenders and opponents of majority-rule to a meretriviality.""8 Yet another obstacle to the theoretical treatment ofmajority rule is those who believe in the possibility of discoveringimmutable and just laws (or Law), for whom the discovery andenactment of such laws, rather than question of rule by majoritiesversus minorities, being of central concern. This idea runs fromPlato and Aristotle through the natural-law theorists of theMiddle Ages to modern constitutionalists.
Finally, confusion regarding key terms and concepts poses anobstacle to effective study of the issue. ""Although 'majority-rule,''principle of majority-rule,' 'majority principle,' etc. have for along time been familiar to students of politics and sociology, noattempt has been made to define them with scientific precision.""9Thus, writers who employ those phrases may be describing ""(a)the rule by which . . . organized bodies are committed to decisionsby majority-vote, (b) the theory according to which politicalpower should be vested in the numerical majority of the 'people,'[or] (c) the form of government by which the defenders of (b)would like to see adopted wherever it does not yet exist, andcontinued wherever it does exist."" Kendall seeks to add clarity tothe subject by defining terms such as ""doctrine of majority-rule""and ""the majority principle,"" and by investigating the relationshipsbetween these and other associated concepts.
Kendall offers the following definitions: ""majority principle""describes the rule by which majorities exercise power in a givengroup. ""Majority-rule"" is the state of affairs that prevails when athe majority principle holds sway in a political society, and the""doctrine of majority-rule"" a theory regarding the normativestatus of such a state of affairs. And the apologists for the doctrineof majority rule are ""majority-rule democrats.""
Majority-rule democrats are not only proponents of themajority-principle's application to political society, they alsonecessarily advocate ""formal political equality, formal popularsovereignty, techniques for discovering the . . . popular will, [and]reception of majority-decisions as the equivalent of . . . unanimousones.""10
Kendall chose John Locke as the starting point of his studybecause Locke's theory represented, for various reasons, ""theearliest moment at which [the doctrine of majority-rule] can beshown to have assumed the form"" in which Kendall presents it.11
While John Locke is rightly considered to be a pioneeringexpositor of the proposition that individuals have certain inherent,indefeasible natural rights that exist prior to the state,Kendall's reading of Locke uncovers other crucial themes ofLocke's thought and reassesses Locke's teaching on the nature ofrights. Most importantly, Kendall finds Locke's view of naturalrights (along with coordinate duties) to be essentially instrumentalist,with their proper object being to further the collective goodof society. In fact, Locke's view of political society is strikinglycollectivist; his ideas have more in common with Rousseau (whoseteaching Kendall admired) than modern exponents of an individualistview of rights and an atomistic conception of society.
Nevertheless, Locke did find duties and rights individuals oweto one another to be ""enjoined by what he calls variously the lawof God, the law of reason, and the law of nature.""12 However,Kendall sees a source of Locke's apparent ""confusion"" in Locke'sconception of the law of nature and finds that Locke is workingunder various contradictory premises. For example, while naturallaw is held to be immutable and absolute, Locke seems to argueelsewhere that its content can change according to circumstancesand be amended by agreement. ""[D]id Locke really mean that themajority has a right to (e.g.) maintain in power a governmentwhich oppresses or treats unjustly the 'rest'? Did he really believethat it is the fact of majority support which makes right inpolitics?""13
Furthermore, Kendall finds that for Locke the sovereignty ofthe community is not restricted to a limited sphere of action, asa more orthodox reading of Locke would have it. Indeed, Lockeposits ""unlimited sovereignty,""14 where ""even the individual'sright to life is valid only to the extent that it is compatible with thegood . . . of his community,""15 and the individual ""owes to thecommonwealth . . . a duty of obedience which is absolute andperpetual.""16 Moreover, the sovereignty of the majority is coextensivewith the sovereignty of the community.
Yet, Locke ""did believe in the existence of objective moralstandards.""17 How can this be reconciled with a theory thatperpetually subjects minorities to the rule of majorities whosescope of action is seemingly unlimited?
Kendall proffers a solution to these apparent contradictions:that an unstated assumption underlay Locke's thought, whichrendered the seemingly contradictory strands in that thoughtintelligible. Locke's latent premise, according to Kendall, is hisassumption that the majority is rational and just:
If Locke had written across the top of the first page of the SecondTreatise the words, ""All theoretical demonstrations included inthe following argument are predicated upon the assumption thatthe chances are at least 50+ out of 100 that the average man isrational and just,"" . . . most of the difficulties to which we havedirected attention above would automatically disappear.18
John Locke and the Doctrine of Majority Rule is perhaps Kendall'smost difficult work to read. The complicated construction of hisargument is made necessary, perhaps, by its reliance on a closestudy of the text in question, but remains needlessly opaque.Perhaps most frustrating to the less-educated reader is Kendall'sfrequent use of untranslated and often lengthy quotations inLatin, Italian, French, and German. Kendall's writing is at itsstrongest in his later works, such as The Conservative Affirmation,in which he employs a more flowing, conversational prose style,liberally peppered with Midwestern idiom.
The Conservative Affirmation19 is a collection of related essaysgathered by Kendall himself. It represents Kendall's explorationof the central defining characteristics of American conservatism.In the introduction and first chapter, he explores and rejectsvarious prevailing definitions of American conservatism. Forinstance, he rejected the contention of libertarians such asLudwig von Mises and Ayn Rand that the ""dividing line"" betweenconservatism and liberalism can be described in economic terms,with the ""virtuous"" placing their faith ""in the free market, in freemarkets, in individualism,"" and opposed to ""collectivism"" and""our enemy the state.""20 Nor should it be defined as ""mistrust ofpolitical authority,""21 anti-Communism, or defined according tothe belief in ""a God-centered universe.""22 On the contrary:""Attempts to resolve the religious-society-secular-Constitutionin either the one direction or the other, are not only divisive, butcontrary to the American tradition itself.""23
For Kendall, liberalism represents a ""full-scale revolution""against America's political tradition, and conservatism is bestunderstood as a defense against the liberal onslaught. The revolutionariesand defenders are divided by a central question: ""Is thedestiny of America the Liberal Revolution, or is it the destinyenvisaged for it by the Founders of our Republic?""24 The aim ofthis ""revolution"" is to transform America's regime from a representativerepublic into a plebiscitary democracy, and to remakesociety according to ""the egalitarian principle,"" which holds thatmen are to be made equal. ""Indeed,"" Kendall writes,""[conservatism's] objection to Liberal proposals for the 'reform'of our political system is precisely this: Those proposals would (byeliminating deliberation) render impossible the expression of thatdeliberate sense—or, for that matter, any sense that would be,properly speaking, that of the community.""25
Willmoore Kendall's definition of conservatism, then, isinseparable from his conception of America's founding (andcontinuing) political tradition: that of a virtuous people governingitself through deliberative institutions. While liberals have selfconsciouslyorganized themselves in an overarching struggle tooverthrow America's social and constitutional order, conservatives,according to Kendall, are often only are dimly aware of thestruggle they are in. (Kendall would presumably approve of theself-conscious political strategy of the conservative movementtoday, if not its aims and doctrines.)
Kendall explores this struggle in more detail in the chapter""The Two Majorities in American Politics,""26 perhaps the mostsignificant essay in The Conservative Affirmation. He explores thepersistent tensions between Congress and the presidency and the""two numerical majorities"" of the same American electorate thatput them in office. The legislature is ""'nervous' about internalsecurity""27 (e.g., the House Un-American Activities Committee)and ""adheres unabashedly to the 'pork barrel' practices for whichit is so often denounced.""28 Additionally, it is protectionist,suspicious of foreign aid, fails to act in accordance with ""enlightenedopinion among intellectuals"" with regards to civil rights, andapproaches foreign affairs based on considerations of expediencyrather than high principle.
In contrast, the executive, is committed to, for example,foreign aid regardless of its relevance to national-security objectives,idealism in its foreign polity, ""world government,""29 egalitarianism,and free trade, and seeks to ""bring our immigrationlegislation under, so to speak, the all-men-are-created equalclause of the Declaration of Independence.""30 With regards to thereform of the American political system, the executive ""tends tofavor each and every component of the current program (theproduct of what is generally regarded as enlightened opinion . . .)for transforming the American political system into a plebiscitarypolitical system, capable of producing and carrying throughpopular mandates.""31 In this regard, it supports the elimination of""undemocratic"" features of the political system, such as thefilibuster and the electoral college system.
The differences between the legislative and executive, ingeneral, ""bear very nearly indeed upon the central destiny of theUnited States—on the kind of society it is going to become ('open'or relatively 'closed,' . . . 'welfare state' or a 'capitalist' society);[and] on the form of the government the United States is tohave.""32
The root of the differences in the natures of the legislative andexecutive, according to Kendall, is that the executive is elected bya national plebiscitary process that has been ""'engrafted' onto ourpolitical system: it was not intended by the Framers.""33 In presidential campaigns, in order to appeal to a majority of votersin a vast electorate concerned with myriad complex issues,candidates of both parties are forced to speak platitudes andgeneralities, and when elected must endeavor to fulfill mandatesbased on high-minded rhetoric. Congress, on the other hand, ischosen according to the structure described in The Federalist,wherein smaller communities elect representatives based on theirperceived virtues rather than ""issues."" The choice of a representativeis influenced by the complex hierarchical structures of theirconstituencies and the elected representative must be cognizantof them when in office. Members of Congress accordingly are ""farmore dedicated to the 'status quo'"" than the candidate that samecommunity helps elect to the presidency. Additionally, the localpolitical discussion process is necessarily more rooted in theconcrete problems and interests that are relevant to the community,and their representatives deliberate with such considerationsin mind.34 The executive's idealistic hopes are thereforeoften dashed on the rocks of congressional intransigence. Kendallidentifies conservatism with the Constitutional order and thecongressional majority, resisting the ""liberal,"" egalitarian executive,with its plebiscitary majorities.
In the chapter ""The Social Contract: The Ultimate Issuebetween Liberalism and Conservatism,"" Kendall broadens thescope of his study by examining the place of conservatism withinthe larger story of political philosophy. Here, the influence ofStraussian teaching, which Kendall had encountered at a relativelylate stage in his career, comes into full display. Kendallviews the social contract philosophers as representing a revolutionarybreak with the ""Great Tradition"" of political philosophythat began with the classical thought of Plato and Aristotle. Theclassical philosophers viewed society as ""natural to man,""35 andman as having an innate ""duty to subordinate himself to justice,""which is discovered through reason, rather than determined byconvention.36 The contractarians—Locke, Hobbes, and Rousseau—broke with the classical tradition by placing consent andagreement at the center of political thought, thus discardingconcern with justice, duty, and the proper aims of human life andsociety. (Locke's role here has been recast in light of Kendall'sStraussian narrative of the history of political thought.) Thecontractarian philosophy lives on in modern thought and politicalpractice, which is rooted in ""the natural right of self-preservation,which is to say, only self-interest.""37 Moreover, moderncontractarians view the American founding as an expression ofLockean philosophy, and thus cast themselves as the protectorsof the American political tradition: ""In America, of course, thesestruggles are struggles between Conservatives and Liberals:Conservative affirmation and Liberal denial, Conservative faithin the growing Great Tradition . . . and Liberal relativism.""38
Perhaps the most extraordinary aspect of Kendall's thoughtwas his willingness throughout his career to honestly subject hisown thought to the test of other thinkers, and accordingly revisehis own thinking if he found it to be wanting. To call Kendall's egohealthy would be an understatement.39 Nevertheless, Kendall'sthinking was transformed by his encounter with the teaching ofLeo Strauss and Eric Voegelin to the extent that he re-oriented hisown scholarly work in response to their writing. In fact, Kendalladopted a remarkably deferential posture in his relationship withStrauss at a time when Kendall was probably the more renownedscholar in academic circles and among the public.40 An aspect ofKendall's thought that underwent significant change was his viewof was his transformation from the political scientist, a proponentof localism and plebiscitary democracy, and the skeptic ofMadisonian constitutionalism, to the student of political philosophy,scholar (and defender) of America's founding institutions,and enthusiastic proponent of The Federalist. The full course ofthe evolution of Kendall's thought can be seen in the collectionWillmoore Kendall Contra Mundum.41
Contra Mundum gathers Kendall's most significant previouslypublished essays, and also includes several unpublishedspeeches, essays, and book chapters. The included works, whoseoriginal publication dates range from 1939 to 1968, span Kendall'scareer. The essays contained in Contra Mundum provide usefulinsight into the evolution of Kendall's thought as well as the fullrange of his scholarly interest. Included are early works such as""The Preservation of Democracy in America,"" in which Kendall'searly enthusiasm for plebiscitary democracy and his distrust ofAmerican constitutionalism are on display. Essays such as""Prolegomena to Any Future Work on Majority Rule"" show hisconsistent opposition to the idea that the freedom of action ofdemocratic government should be institutionally constrained inthe name of protecting individual rights. And Kendall's explorationof the Madisonian republic and The Federalist can be foundin ""How to Read 'The Federalist,'"" ""The 'Intensity' Problem andDemocratic Theory,"" and ""The Two Majorities,"" which alsoappears in The Conservative Affirmation. In ""The 'Open Society'and Its Fallacies"" Kendall criticizes the view that unlimitedfreedom of expression should be society's supreme purpose, andin ""The Bill of Rights and American Freedom"" he traces theorigins of the First Amendment and freedom of speech inAmerica. Also included are three chapters from the unfinishedSages of Conservatism, in which Kendall assesses and criticizes thework of Russell Kirk (""The Benevolent Sage of Mecosta""), ClintonRossiter (""The Part-Time Sage of Ithaca""), and John CourtneyMurray (""The True Sage of Woodstock""). Contra Mundum alsoincludes many other significant essays, all of which it would beimpossible to discuss here.
Kendall's early writing was marked by a profound cynicismabout the American constitutional system and the possibility ofself-rule over an extended republic. This can be seen most clearlyin his 1939 essay ""On The Preservation of Democracy inAmerica.""42
The Kendall of '39 adopts what he sees as Rousseau's ""enthusiasmfor the city-state"" as holding out the only possibility for""government based on the general will"" rather than ""governmentbased upon force.""43 For the ""general will"" to exist, it is necessarythat the polity ""possess a moi commun, a sense of common destinysufficiently intense to bind them to each other in what we todaywould call a genuine group or community.""44 Without such asense of shared purpose, democracy—which Kendall defined as""a form of political organization which lodges absolute power inthe numerical majority of the adult population of the area whichthe organization is expected to serve""45—is not a viable method ofgovernance. ""[A] mere aggregate of individuals, brought togetherby chance or by compulsion,"" will not do.46 However, Kendallsuggests, the United States under the Constitution is preciselythat.47
As Kendall argues for the necessity of deeply felt bonds ofcommunity for majority rule, he makes a point that would becomea principal theme in his writing throughout his career: that ""ifdemocracy involves majority-rule, it involves also acceptance bythe minority of all decisions behind which a majority can berallied.""48 Otherwise, the government is one of force, rather thanpersuasion, with the minority acquiescing to majority decisionsbecause, in the face of the majority's ""overwhelming force,"" it hasno choice.
In the 1939 Kendall's view, such a situation can only arise atthe local level and extend outward if at all. However, the possibilityof a ""democratic movement"" arising in America is forestalledas a result of our ""undemocratic constitution,""49which resulted ina political system in which the possibility of democracy at the locallevel is forestalled by the placing of the real political control overtowns and cities in the hands of ""the larger political unit of whichthey form a part—that is, by the state.""50
To explain how this dismal state of affairs arose despite the""genius for self-government"" Americans had shown in the yearsleading up to the drafting of the Constitution, Kendall—echoingprogressive historians—offers an interpretation of the Foundingthat sees the architects of the Constitution as propertied oligarchsfurthering a conspiratorial scheme to destroy democracyin order to forestall local self-government and consolidate nationalpolicymaking in the hands of elites. It is ironic, then, thatKendall's arguments regarding the necessity of consensusbuilding,goodwill among political actors, and the necessity forthe minority's acquiescence in majority decisions closely echo theimperatives of The Federalist's ""constitutional morality"" thatKendall himself would later describe so lucidly.
In Kendall's early skepticism of America's constitutionalgovernment, as George Carey notes, he ""comes close to acceptingan Anti-Federalist line that a true republic . . . is only possible overa small territory with a relatively small population and fewinterests.""51 Additionally, Kendall seems to be speaking in thepositivist language of ""contemporary political scientists,"" who, asJohn E. Alvis describes it, ""often speak as though they believe thatwhat men think is the mere 'epiphenomenon' of what they do,"" forexample, arguing that ""the long debates in the summer of 1787were not thoughtful activities pursuant to framing a just constitution. . . but clever exercises in constructing a basis in law for thevarious economic interests of the Framers.""52
The essay ""Prolegomena to Any Future Work on MajorityRule,"" written in 1949,53 illuminates another aspect of Kendall'smajoritarianism that would remain a consistent theme of histhought: his opposition to institutional constraints on the actionof the majority that would restrain the scope of permitteddecision-making, thus placing certain critical issues, particularlythose involving ""rights,"" outside of the purview of democraticgovernment.
In ""Prolegomena,"" Kendall seeks to rebut the argument (asput forward by political scientist Herbert McClosky) that certainpolitical decisions should be held to be outside the purview oflegitimate democratic decision-making. He focuses particularlyon ""the political rights traditionally associated with democraticthought and practice,"" such as the rights to speech, assembly,association, and participation in the political process.54 Thesechecks on democratic action are necessary, the argument goes, inorder to ensure the perpetuation of democratic government: themajority must be enjoined from taking action that would bedestructive of majority rule itself, through destroying the veryfreedom by which majorities are achieved.
To this argument, Kendall responded first, that it makes littlesense to place ""a unique and exclusive value to the preservation ofmajority rule,"" while allowing the majority free rein in othercritical areas, such as rights to property or freedom of religion.More importantly, though, is the problem that setting such formalrestrictions on the sovereign power creates additional unansweredquestions, such as, ""Who decides whether the standard [oflegitimacy] is being respected? Who adapts the standard tochanging circumstances? The majoritarian's answer to both thesequestions is: The majority.""55 McClosky's answer is unstated andKendall leaves it at that. But one suspects that if not the majority,an undemocratic institution such as the Supreme Court wouldhave to step into the standard-setting role.
While Kendall recognized that a majority-rule regime couldsurrender its legitimacy by its actions, he nonetheless realizedthat ""democracy can commit suicide,""56 and if it wishes to do so,no institutional check on its actions can stop it. However, he hintsat greater dangers of antidemocratic governance that lie in suchinstitutional checks than any that lie in their absence.
For Kendall, the ability of a community to make such judgmentsregarding the issues most crucial to the continued vitalityof self-government should not be banished from the purview ofdemocratic decision; on the contrary, such decisions are crucialto majority-rule government:
one of the things a community has to decide and keep ondeciding in order to function as a community is the question:What kind of collective action shall be regarded as ultra vires?A community, that is to say, makes its own standard as it goesalong; it will presumably be well-advised to adopt, for thispurpose as for other purposes, the ""best"" of the methods availableto it.57
Preventing the community from ""making its own standard""only neutralizes the mechanisms of self-government when itconfronts the problems that are the most critical to the politicalcommunity, and the most difficult to resolve, where the judgmentof the democratic process is needed most.
For example, when the community is confronted with politicalmovements that have the potential of destroying democratic rule:
one wonders why the obligation to do nothing to prevent[majorities from] being free-arrived-at thus hogs the footlights atthe expense of the obligation to take positive action to assure theirbeing freely-arrived-at? Why, for example, should the Communistmovement, which as McClosky recognizes looks precisely tofuture prevention of majorities being freely-arrived-at, not enjoyanyhow equal status with permitting all individuals, includingpresumably the Communists, to speak and publish, and soforth?58
A ""rule of legitimacy"" can place such a dilemma, whoseresolution is critical to the regime's survival as well as its nature,outside of the purview of the democratic process. For this reason,""it is democracy's inherent capacity to commit suicide that makesthe question of where it is to lodge the power to decide life-anddeathmatters so very urgent—which is why those of us whose betsare on majority rule hold that these matters, above all others,must be decided by majority rule procedures. . . .""59
A curious feature of ""Prolegomena"" is that Kendall adheres tothe model of the positivist political scientist while at the same timepresenting his unflagging defense of communities' robust selfgovernment.This seems to betray a not-so-hidden conviction thatsuch arrangements amount to a positive good, a good whichcannot be severed from the normative ""value-judgments"" thatsuch societies pursue through their governments. Thus Kendall'sobvious prejudice towards certain human arrangements as simplybetter than others coexists uneasily with such strange formulationsas the following:
Sound methodology . . . calls for rigorous separation between theproblem of the method of making community decisions . . . andthe problem of the standard of legitimacy . . . [political theory]must choose . . . which method is indicated on this or that valuepremiseor set of value-premises . . . (on whose validity it has, quapolitical theory, no means of pronouncing) . . . The majoritarianis the man who finds the majority principle more congenial to hisvalues than any other, but his finding on this point is, or shouldbe, value-free.""60
And so on. Kendall refrained from making such distinctionsin his later writings, perhaps as a result of his late-career encounterwith the work of Eric Voegelin and Leo Strauss, or simply froma greater appreciation for classical philosophy.
Nevertheless, from Kendall's earliest writing, his thought wasanimated by his conviction of the central importance of community,good will, and shared norms to the viability of selfgovernment.He also consistently argued against institutionalchecks to delimit the majority-rule government's legitimate sphereof action. These themes would carry through to Kendall's laterwriting on the founding, The Federalist, and the American constitutionalorder. However, his views on the American constitutionalsystem would change dramatically. Kendall's former deepcynicism about the nature and purposes of the extended republicof The Federalist gave way to a profound appreciation of theConstitutional system's unique solution to the problem of selfruleover an extended republic.
To the later Kendall, an understanding of The Federalist wasessential to understanding not only the constitution, but also theessential character of American self-rule. In the essay ""How toRead 'The Federalist,'""61 Kendall and his co-author GeorgeCarey62 make the case for the singular importance of The Federalistto the serious student of the American constitutionalism.The essay provides a corrective to the view that The Federalist ismerely a loose collection of propagandistic newspaper editorialsintended to secure ratification of the Constitution, and thereforeworthy of study principally for historical purposes. On the contrary,Kendall argues: ""The Federalist is a 'must' for anyone whoseeks an 'intellectual' understanding of our tradition and of thepolitical system under which we have governed ourselves, happilyand well some of us would say, for nigh onto two hundred years.""63
To the charge that the fact that the division of authorship ofThe Federalist between three authors detracts from its importanceas a unified work, Kendall answers that in fact this missesthe point—assigning authorship of each paper to Jay, Madison, orHamilton misapprehends the nature the project, which wasintended to be read and understood as the work of a single author,Publius.64
This is so first, simply because a consciousness of the authorshipof a particular paper would distract from its argument. Bytreating the papers as the work of a single author, the reader ""willbe able to approach each individual paper, as the original readerscould, without his opinions concerning the author getting 'between'him and the argument.""65 More crucially, the authors werewriting not as themselves but as Publius, making the project of TheFederalist ""a re-enactment, in miniature, of the miracle of thePhiladelphia convention itself.""66 The convention produced aConstitution that no one present wholeheartedly wanted, yeteveryone supported it without reservation. So did the authors ofThe Federalist shelve their personal viewpoints, writing as one toilluminate the Constitution's philosophy. Therefore the authorshipof The Federalist reflected the shaping of the Constitution,which in turn reflected the operation of the constitutional governmentthat was the object of The Federalist's argument.
To the argument that The Federalist was simply propagandaintended to secure the ratification of the Constitution, Kendallresponds first, that certainly, The Federalist is ""polemical"" in thesense that ""it is the affirmative 'side' of a 'debate' (between theopponents and critics of the proposed new Constitution),""67 butin fact, the ""ratification of the Constitution was . . . already 'in thebag'"" at the time of The Federalist's publication. To be sure, theConstitution's supporters may have hoped to secure its passage inVirginia and New York and The Federalist was ""nominally addressedto the People of New York,""68 but the arguments of TheFederalist were addressed ""to the American people as a whole""with the purpose of ""[making] sure that the peoples of the severalstates, in ratifying, fully understood what exactly they werecommitting themselves to, what exactly they were doing.""69 Additionally,Publius lays down ""an ethos as to how public discussion,worthy of gentlemen, should be conducted by a sober, intelligent,and intellectually honest self-governing people.""70 Therefore, thenature of The Federalist is ""pedagogical"" rather than propagandistic.71
Moreover, those pedagogical purposes of The Federalistamounted to more than simply instructing the electorate on themachinery of the Constitution as it was written: The Federalist putforward but one ""of the numerous alternative 'readings' of theConstitution, but precisely the one which we, for good reason. . .,are in the habit of 'seeing' in it.""72 Because of the success ofPublius's venture, our understanding of the Constitution is inseparablefrom the particular interpretation of the Constitutionthat The Federalist promulgated. For example, Kendall notes theConstitution ""does not provide 'judicial review' . . . but also doesnot exclude the possibility of it.""73 Also, nothing in the Constitutionprohibits Congress from ruthlessly enforcing its supremacy,forcing the other branches to submit to its will through its use ofits funding or impeachment powers, for instance. Nevertheless,the norms set out in The Federalist have become inseparable fromour assumptions of what the Constitution requires. Therefore,Kendall goes so far as to suggest that ""the Philadelphia Constitutionand what we might fairly call ""The Federalist Constitution""can be distinguished, and ""that it is under the latter . . . that wehave lived and governed ourselves since 1789.""74
Kendall describes the operation of The Federalist's model ofgovernment and defends it from its critics in ""The 'Intensity'Problem and Democratic Theory."" In that essay, also written withGeorge Carey, Kendall's specific aim is to address the problem ofdemocratic governance over a large, heterogeneous population.In particular, he outlines The Federalist's solution to ""the intensityproblem"": the dilemma of whether and how a government ofmajority rule addresses the situation where the preference of anapathetic or marginally interested majority conflict with thewishes of an intensely interested minority. To state the problemdifferently, the question is whether the ""individual preferences ofmembers of the community . . . [should ] be merely counted, orboth counted and weighed.""75 More generally, though, many ofthe observations Kendall makes in this essay could operate asdefenses of the Madisonian extended republic against the criticismsof Kendall's earlier ""Prolegomena.""
The problem is that ""populistic"" or plebiscitary democracycannot account for intensity: ""For a theorist of populistic democracyeven to flirt with the idea of giving the minority its way is toappeal to 'values' . . . and this he cannot do because the theory hascut itself off, once and forever, ab initio, from such considerations.""(Here, it seems as if the older Kendall could be writing inresponse to the Kendall of 1949 who wrote ""Prolegomena."") ""Ifit is justice we are interested in,"" he continues, ""or stability . . . thenwe had best . . . build from the first moment with those goods inmind.""76
Kendall argues that in order to survive a majority-rule systemmust foster a ""general atmosphere of willing cooperation and'good feeling'"" by integrating ""the majority-principle"" with ""theunanimity-principle"" in such a way that the majority makes itsdecisions ""in such fashion that those decisions elicit what amountsto unanimous, or virtually unanimous, support or acquiescence.""77
Accordingly, to account for the problem of intensity, a politicalsystem must provide a mechanism for its constituent groups andindividuals to have the information necessary to anticipate oneanother's reactions. If they can do so, then all of the members ofthe society will have accurate information, which is necessary forfurthering the cooperative decision-making atmosphere that is inall parties' self-interest. Without such accurate information, theyare liable to take ""action . . . that will prove self-defeating, and thatmight lead to the breakdown of the system itself.""78
The ""weighing"" of the intensity of preferences takes place notthrough some formal mechanism but by each participant in thesystem, who must have the personal knowledge, experience, andrapport with the other participants necessary to weigh their likelyreactions.
So far, none of these points has conflicted with the argumentsKendall made in ""Prolegomena"" regarding the necessity of communityand consensus for functional democratic governance.However, Kendall had come to appreciate how The Federalist'sdesign allows for such a consensus-based process of governanceover a large, heterogeneous republic.
A close-knit community requires little institutional machineryto ""facilitate mutual knowledge and understanding.""79 However,""the more 'diverse' or 'heterogeneous' the political society,the greater need for elaborate and complex 'machinery' to facilitatemutual knowledge and understanding of the kind here inquestion.""80 This complex constitutional machinery encouragesdeliberation that affords ample opportunity for consensusmaking.Similarly, the various checks in the Madisonian systemmake action based on slim majorities difficult, and so furtherencourages consensus.81 Additionally, the function of the electorate,in choosing representatives, is to select the best (wise,virtuous) decision-makers rather than to weigh and choose amongpolicy alternatives. Further, the norms of the decision-makingprocess—The Federalist's ""constitutional morality""—encouragesconstitutional actors to act wisely, and discourages ""ignoring thefeelings of losers in elections.""82
Kendall's belief in the necessity of society's defense of itsshared basic assumptions and norms and comes to the forefrontin his essay ""The 'Open Society' and Its Fallacies,"" included inWillmoore Kendall Contra Mundum and also published in TheConservative Affirmation as ""Conservatism and the 'Open Society.'""Here, Kendall attacks the doctrine John Stuart Mill announcesin the essay On Liberty, that ""there ought to exist thefullest liberty of professing and discussing, as a matter of ethicalconviction, any doctrine, however immoral it may be considered,""and Karl Popper's development of this idea in The Open Societyand Its Enemies.83 Kendall's concern is that the doctrine of theopen society elevates freedom of speech and expression from oneof the goods that a society will seek to advance to ""society'sultimate standard of order.""84 In such a society, all questions mustbe treated as open questions in public, including in public schoolsand universities. For example, even if all members of the societyespouse a particular religion or church, in the public sphere eachmust nevertheless ""treat all religions and churches as equal.""85The community is denied any capacity to promote any ""publictruth"" or ""orthodoxy.""86 Therefore, ""[t]he open society confers'freedom' upon its members, but does so at the cost of its ownfreedom as a society.""87
Mill's proposal, Kendall argues, rests on the ""false conception""that assumes that ""society is . . . a debating club devotedabove all to the pursuit of truth.""88 In fact, society is devoted toa number of goods, including ""the living of the truth they believethemselves to embody already, and the communication of thattruth . . . to further generations . . . these are preconditions to thepursuit of truth.""89
In fact, a society built on Mill's precepts will fragment intoincreasingly bitter divisions, leading ultimately to ""violence andcivil war,"" with the community unable to impede the process by""giving preferred status to certain opinions . . . for by definitionit places a premium upon dispersion by inviting irresponsiblespeculation and irresponsible utterance.""90 The paradigmatichistorical example of the open society, Kendall warns, is WeimarGermany.
Kendall contends that the Mill-Popper open society wouldparadoxically become intolerant towards those who disagree withits precepts. Such a society, ""dedicated to a national religion ofskepticism,"" must silence the person who ""challenges the veryfoundations of skeptical society.""91
But did America not proclaim the open society to be itsfounding ideal with the enactment of the First Amendment?Kendall addresses this question in the essay ""The Bill of Rightsand American Freedom.""92 Preliminarily, Kendall notes that thePhiladelphia Convention that drafted the Constitution unanimouslyvoted down a proposal to include ""a declaration or bill ofthe natural rights of man.""93 Kendall also runs through thearguments against a Bill of Rights that were offered in TheFederalist and offers additional anti–Bill-of-Rights arguments ofhis own.
A central question, then, is what James Madison, Federalistand chief author of the Constitution, was ""up to"" when he draftedthe Bill of Rights and convinced his congressional colleagues toenact it.
Kendall answers by taking us through the time of the adoptionof the Bill of Rights. After the ratification of the Constitution,Madison sought to bring those who opposed its passage into theconsensus by enacting a bill of rights. He took as his starting pointthe ""recommendatory amendments"" set forward from the Virginiaconvention.94 But he stripped from them the language of naturalrights, and replaces them with straightforward ""rules of law.""95 Forexample, the Virginia draft of what would become the FirstAmendment originally read, in part: ""That the people have a rightto freedom of speech, and of writing and publishing their sentiments,but the freedom of the press is one of the great bulwarks ofliberty and ought not be violated.""96 The passage becomes: ""Congressshall make no law . . . abridging freedom of speech, or of thepress."" The grandiloquent declaration of an abstract right is gone,and the people, through Congress, are left to determine forthemselves the particulars of the ""freedom of speech"" through theConstitution's deliberative process. Moreover, the specific directiveto Congress leaves the abridgement of rights ""as amonopoly of the State governments.""97 Therefore, Madison hasdefused the First Amendment's potential to fundamentally alterthe nature of the state that the Constitution established.
Furthermore, Kendall dismisses the possibility that Madisonor his congressional colleagues contemplated that the provisionsin the Bill of Rights would be enforced by the judiciary: had thatbeen the case, the record would show debate and controversy itsenactment, when in fact there was virtually none.
Kendall's final published work, The Basic Symbols of theAmerican Political Tradition,98 is based on a series of lecturesKendall delivered in 1964, which were expanded developed as abook by its co-author, George Carey.99 In Basic Symbols, Kendalllooks beyond The Federalist and the founding to trace thedevelopment of America's political society to its earliest formativestages and examines the impact of moral and religiousaspiration on its governing institutions. While the Kendall of TheConservative Affirmation had placed the American foundingwithin a Straussian template that conceived of the foundinginstitutions as emerging from a ""Great Tradition"" now underattack from latter-day positivists, the Kendall of Basic Symbolsanalyzes the American republic in terms of Eric Voegelin'sconception of the core ""symbols"" that express a political society'sself-understanding.
To chart the development of the American political tradition,Kendall employs Voegelin's conception of symbols as the hermeneuticmethod by which he examines the important documents ofAmerica's development during the colonial and revolutionaryperiods. According to Voegelin, in order to gain a meaningfulunderstanding of any political society, it is first necessary to studythat society's self-understanding. To do so, it is critical to examinethe symbols and myths by which a people represents and interpretsitself. These symbols are the mechanism through which asociety conceives its ""place in the constitution of being and of itsrole in history.""100 The symbols relate to each other and aresometimes in tension with one another. As a society develops andmatures, its system of symbols also develops and new symbols areformed from the old through a process of differentiation.
A political community's self-understanding necessarily expressesa relationship to transcendent truth, ""even if only thenegative relationship of denial.""101 Moreover, ""[i]n WesternCivilization basic symbolizations tend to be variants of theoriginal symbolization of the Judaeo-Christian religious tradition:variants . . . of the tale according to which a founder, Moses,leads the people out of the realm of darkness, Egypt, into thedesert . . . toward a Promised Land.""102Kendall's project is toexamine the roots of America's political tradition in light of thisbasic symbolization and show how it has been willfully and widelymisunderstood in the years following the Civil War.
Basic Symbols is perhaps Kendall's most forthright challengeto the notion that American's founding creed is based on egalitarianismand the protection of individual rights. Kendall presents hisproject as a corrective to an ""official literature"" that grosslymisapprehends the nature of the American political tradition. Indoing so he also wades into the debate over the meaning andsignificance of the Declaration of Independence.103 This officialliterature holds that our political tradition begins with the FoundingFathers' drafting of the Declaration of Independence, whichset forth our ideals as a nation: the equality of all men, and ourpossession of sacred, inalienable rights that cannot be abridged bythe government.
The Declaration also, the official literature teaches us, signaledour emergence as a unified nation.104 The structure of ourgovernment was then set down in the Constitution, in which thesupposed fundamental ideals of the founding were curiouslyabsent: progressive historians would teach that its aim was tofurther the economic interests of the landowning class. Finally,the Bill of Rights was enacted, adding to the Constitution acommitment to equality and individual rights that Congress couldnot abridge, thus bringing the Constitution in line with the idealsset forth in the Declaration.
Kendall contends that this narrative, although now cherishedas a national myth, was actually invented after the fact and iscontradicted by the historical record. Rather, he argues, the""defining principles and practices central to the political traditionof the Founding Fathers"" were ""those associated with a selfgovernmentby a virtuous people deliberating under God.""
In order to chart the development of the American politicaltradition, Kendall closely examines public documents ""that haveat least the look of ventures in self-interpretation by a politicalsociety.""105 This allows us to trace the development of ourpolitical society's symbols from the earliest settlements throughthe adoption of the Constitution. Specifically, Kendall examinesthe Mayflower Compact, the General Orders of Connecticut, theBody of Liberties of Massachusetts Bay, and the Virginia Declaration of Rights.106 In them, we see the development of ""thesupreme symbols of the American tradition, that is . . . the symbolsof a virtuous people through deliberative processes striving toachieve and advance their declared purposes which involve, interalia, better ordering with justice.""107 Related are the symbols ofthe consent of the people, the supremacy of their deliberativebody and its commitment to act for the general good of society,and the submission of society to a higher law.
Kendall begins his analysis with the Mayflower Compact,where these symbols begin their development. The Compactbegins with a ""traditional Christian invocation: 'In the name ofGod'""108—an oath is being taken. In the next section the signersidentify themselves and state the purposes of their undertaking(e.g., glory of God, advancement of the Christian faith). A bodypolitic is then created by oath (""solemnly . . . covenant andcombine ourselves together into a civil Body Politick"").
Finally: ""for our better Ordering and Preservation, and Furtheranceof the Ends aforesaid; And by Virtue hereof to enact . . . suchjust and equal Laws . . . as shall be thought most meet andconvenient for the General good of the Colony; unto which wepromise all due submission and obedience.""109
One apparent symbol is the glorification of God. Additionally,the ""supreme 'values' of this system,"" Kendall argues, are ""justiceand general good.""110 Finally, the language ""laws thought to be justand equal"" and the very solemnity of the unanimous adoption ofthe document under an oath suggest deliberation and consensus.Importantly, individual rights do not come into the equation, butit may be implied that individuals may derive rights through thecommunity's commitment to make ""just and equal laws,"" throughdeliberation, in furtherance of justice and the general good.
Moving to the Fundamental Orders of Connecticut, we seethe ""Mayflower symbols"" in ""differentiated form.""111 Most importantly,the ""better ordering"" and ""enact, constitute, and frame. . . just and equal laws"" symbols have differentiated into thesymbols of a written constitution with a supreme legislature.There is no longer any mention of ""just and equal laws,"" and nosymbols differentiate in the direction of individual rights.
The Massachusetts Body of Liberties, enacted two yearslater, introduces the symbol of ""liberties, immunities, and privileges. . . due to every man,"" which seems to approximate ourcontemporary understanding of individual rights.112 However,the document states that the freedoms are ""due to every man inhis place and proportion""—suggesting that the drafters areconcerned with justice rather than equality.113 Also, the libertiesare either guarantees against courts or executive officials, orthose that are guaranteed against the General Court (the legislature).The rights that would constrain the legislature contain""escape clauses,"" e.g., ""unless . . . grounded by some act of theGenerall Court [legislature].""
This raises the question of why certain rights would be spelledout if these rights did not legally constrain the legislature. Theanswer lies in the relationship between the symbols of the virtuouspeople, bound by consent, deliberating in subordination to transcendenttruth. The people of Massachusetts, who have attainedthe habit of self-government, are entrusting their rights to thelegislature—placing their rights in their own hands, in a sense, andthus implicitly asserting their right to self-government (throughtheir legislature).114
The legislature, though ""supreme,"" does not rule by whim.The Body of Liberties was enacted by a people binding itselftogether into a body politic dedicated to the glorification of God.In doing so, they commit themselves to being ""'servants' ofhumanity, civility, and Christianity, and as such servants, accepttheir call of humanity, civility, and Christianity.""115 As a deliberativebody, the legislature is bound, therefore, to draw upon ""thegreat tradition of Western man's thought about the humane andcivil . . . appeal[ing] . . . to the transcendent truth of the soul andsociety as continuously explored . . . through the experience ofphilosophy and religion.""116
The need to solve complex problems causes the symbol of thelegislature to be further differentiated. The commitment of thelegislature requires well-thought-out measures for choosing representatives. A good ""machinery through which representativesare chosen . . . will channel the virtue of the virtuous people, theirsubordination to a higher law, into the decisions arrived at,through deliberation, by the virtuous people's representatives.""117
Although individuals unquestionably have rights, individualrights have not yet been expressed as an essential symbol of theAmerican tradition, Kendall contends. Instead, the central symbolsare the supreme legislature and the ""higher law that thesupreme legislature must apply to day-to-day problems."" This isbecause, first, the common or general good was seen to be theprimary concern, and second, because the legislature, through itsdeliberations and with the consent of the people, was seen as thebest and most appropriate institution to deal with these problems.118
Moving ahead almost 150 years to 1776, just before theDeclaration of Independence was enacted, the Virginia Bill ofRights was passed. It declared that all men, being ""by natureequally free and independent,"" have ""inherent rights.""119 Nevertheless,Kendall argues against any Lockean influence, and assertsthat the document most centrally asserts the right of thepeople to govern itself. He notes that the rights ""are rights thatpertain not to all men, not to individuals, but to the ""good peopleof Virginia,"" and pertain to them precisely as ""the basis andfoundation of government.""120
He also shows that a close reading of the individual rights thedocument lists shows that, as with the Massachusetts Body ofLiberties, none of them are individual rights that can be wieldedagainst the legislature: they are either common-law rights ofprocedure or provisions that express the right of people to governthemselves through democratic processes—thus reinforcing thesymbols of deliberation and the legislature.121Kendall next sets out to demonstrate that the Declaration ofIndependence is also (if read correctly) fully consistent with themain symbols of the American tradition, while at the same timecautioning that it should not be viewed as the principal foundingdocument of the nation. According to the official literature, theDeclaration's second paragraph sets forth our basic nationalcommitment to equality and liberty: ""We hold these truths selfevident,that all men are created equal, that they are endowed bytheir Creator with certain inalienable Rights.""122 However, Kendallargues that the inclusion of the phrase ""all men are created equal""did not signify that we, as a nation, had adopted an egalitarianethic as a binding national commitment. He argues that read as awhole, the Declaration reinforces the symbols of self-governmentthrough deliberative processes,123 and that it is inappropriate to""wrench from it a single proposition and make that our supremecommitment."" Moreover, the Declaration, as a document with alimited purpose, is not a constitutional document; it is a unanimousdeclaration, by independent states, of their intentions tobreak their bonds with Britain.124 It follows, then, that we cannotinfer national commitments from a document that was createdbefore the states had self-consciously formed themselves into aunion—which didn't happen until the adoption of the Constitutionin 1789.
The commitments set out in the preamble to the Constitution,unlike those of the Declaration, do establish a ""new politicalorder,""125 Yet they do so in a manner that is fully consistent withAmerica's native symbols.126 Study of the preamble is now neglected,yet it ""still serves as our finest statement of purpose.""127The language of the preamble places the source and ends ofgovernment with the people, rather than deriving them fromabstract, theoretical notions of natural rights:
To say that ""We the People"" do ordain and establish a government""in Order to"" promote desired ends is quite different fromsaying, as does the Declaration, that ""Governments are institutedamong Men"" to secure certain ""rights."" The words of thePreamble tell us that men, ""We the People,"" are institutinggovernment in order to promote purposes or ends to which ""Wethe People"" subscribe . . . . [T]he Preamble suggests that thisentire process is not predestined: Rather it is a matter ofdeliberate choice… the people . . . have a ""right"" to establish theirown ends or purposes when constituting a government, not endsderived from a source other than the people.128
An understanding of the symbols of the American tradition isalso relevant to The Federalist and the structural provisions of theConstitution. When we think of the core design of the Constitution,we bring with us certain assumptions, such as the idea thatthe branches are separate and equal. Kendall maintains that whenreading the text of the Constitution without preconceptions aboutits operation, one finds that Congress in fact has extraordinarypower: it can, among other things, impeach judges, impeachexecutive officials, remove issues from the jurisdiction of theSupreme Court, and torment the other branches with its controlof the power of the purse.129 In Kendall's formulation, thelegislative branch is in fact the most powerful branch. Therefore,the Constitution is a majoritarian document, despite variouschecks meant to encourage consensus and deliberation anddiscourage rash action.130 Besides which, a habitual ""selfrestraintand cooperation"" is necessary in dealings between thebranches—thus the ""constitutional morality"" that The Federalistprescribes is not the Framers' innova