American conservatism as of late has faced a schism largely centered around a debate between New York Post Opinion Page Editor Sohrab Ahmari and David French of the Dispatch (disclosure: I write for the Post). It began with Ahmari’s critique of what he called Frenchism, which loosely means a conservatism that relies too heavily on court decisions and liberal procedure to protect the common good.
This week’s decision in Bostock in which the Supreme Court, according to many conservatives, did the legislature’s job for them in defining “sex” to include sexual orientation and gender identification seems irrefutably a vindication for the army of Ahmariism. The common good conservative argument championed by him and others such as Adrian Vermeule is obviously bolstered any time the courts veer away from original intent and procedures towards the incorporation of public opinion.
As is so often the case, American history shows us a situation similar to this. There are no roads in the American journey that we have not passed by before, and this time the subject of use is James Madison. During the Constitutional Convention and the ratification process, Madison believed that the structure of the document and new government it framed would be strong enough to protect against public opinion, party, or faction.
So diffused was the representation he thought, and so limiting of power the checks and balances that no one interested party or set of interested parties would be able to steer the ship of the state alone. But by the early 1790s, Madison found himself in Congress as the leader of the opposition to the Washington administration and the Alexander Hamilton-led Federalists. The mercantile class, in Madison’s view was running roughshod over the agrarian South and he believed violating the constitution.
It is at this point that Madison makes an astounding reversal. Suddenly he needed public opinion. Furthermore, the founder who most detested political parties was about to found one with Thomas Jefferson. What Madison learned was that no system, regardless of how magisterial, could on its own secure the freedom and liberty of its citizens. The best it can do is to offer a fair marketplace of ideas.
Conservatives need to ponder and understand this Madisonian moment. The fault of Frenchism is that it relies upon the structure of the Constitution, just as Madison had, to protect against government overreach. But it does so at a time when the marketplace of ideas is shrinking into a progressive media culture that brooks no opposition. The Constitution is a backstop, but it does not in and of itself create the common good, it leaves that to us.
Conservatives must demand to be part of the conversation about drag queens performing for toddlers, or kids being taught they are inherently racist. We have to be loud when addressing those who would censor newspapers or defund websites. A robust and effective conservative movement founded on the reverence of Western values cannot be achieved by treating the Constitution as the Alamo, just waiting to get wiped out.
For decades conservatives have relied on the courts to protect them from an onslaught of progressive culture war victories. Too shy to announce a full-throated defense of American values, conservatives have veered into a relativism that the left does not reciprocate. We disagree with their ideas, they just call us racist. There is no court in the world that can redress that imbalance.
Just as Madison came to realize that he had to fight for his vision of America, even if it meant succumbing to politicking and party, American conservatives today must commit to a war of public opinion in which we spell out plainly the disaster that progressives are promising for the country. This is not the time to make the other side’s best argument for them, it is the time to crush illiberal and immoral ideas that will leave us bereft of our rights.
If the events of the past two weeks, from the toppling of statues to the banning of movies to the retiring of brand ambassadors and yes, to the Bostock decision, do not wake up the sleepy conservatives snuggled in judicial gowns then nothing will. America and what it stands for is under assault.
It’s time to stop playing defense. Like Madison, we must open our eyes to the fact that politics is inherently about power, not just resisting power, but also asserting it. If we go too far, let the other side rely on the courts and the constitution for a little while.
Madison would go on to become president, but perhaps more importantly his Democratic-Republican Party would as the name suggests eventually branch into both of our modern parties. He knew when to fight. That is a lesson the right is badly in need of today.