While 2020 was a terrible year due to Covid-19, the results for classical liberalism were more diverse. The appointment of Amy Coney Barrett has made the court more originalistic, and thus classically more liberal, than it has in over a century. The results of the 2020 elections were mixed. The candidate, resolutely hostile to classical liberalism, won, but his party fared far worse than expected when the recession and pandemic could have predicted an outbreak in their favor. Even so, the culture has become even less hospitable to classical liberalism, as alertness infects not only our universities but also our companies. Since electoral politics and justice are ultimately changed by culture, these cultural changes create a negative balance sheet for classical liberalism at the beginning of a new decade.
For decades, Supreme Court appointments have promised to turn it from a dynamo of progressivism into one that will uphold the Constitution as written. And these promises have remained unfulfilled for decades. The Burger Court was known to be the revolution that it wasn’t. Most of those appointed by President Nixon voted to create a whole-cloth right to abortion. Sandra Day O’Connor turned out to be more of a politician than a lawyer, dividing the difference instead of reading the text. Anthony Kennedy uttered aphorisms that were worth fortune cookies instead of locating his reasoning in the original meaning of our constitution. Chief Justice John Roberts seems very focused on maintaining the institutional capital of the Court even at the expense of sound reasoning. A fundamental reason for all of these failures is that many Republican-appointed individuals have moved left during their tenure, while no recently-appointed Democrat has moved right.
However, the long period in which the court was not fundamentally changed ended with Barrett’s confirmation. Chief Justice Roberts is no longer the Swing Justice. Originalists are a multitude, if not a majority, of the court, and as the judges themselves recognize, originalism will be the framework for constitutional decisions.
Originalism promotes classical liberalism because the constitution is largely a product of applied and practical classical liberalism. Their rights are negative freedoms vis-à-vis the state, not positive claims to state support. It creates a three-chamber structure that requires the passing of a law by two houses, whose members are elected for different terms and mostly at different times, and the signature of the president or a two-thirds majority in order to overcome his veto. Federal government measures are therefore deliberately difficult to achieve. While the legal delegation doctrine of the Court of Justice has allowed administrative authorities to fiat rule without compromising certain rules, this doctrine is likely to be changed by the new Court of Justice.
The difficulty of falsifying federal law makes the states more central in politics and creates the beginning of subsidiarity. This structure is also classically liberal, as states (and cities within them) have to compete in a market for governance.
The constitution does not directly instantiate a series of classic liberal policies such as the free market economy, but rather creates a structure of limited government in which such policies have a better chance of being upheld. 2020 thus marks the return to a real possibility of a constitution that is friendly to classical liberalism – a great achievement that is not least thanks to Donald Trump.
The classically more liberal candidate lost the election for president. Trump’s appointments to both the Supreme Court and the Lower Court would have further advanced originalism and a classically liberal governance framework. Bidens will do the opposite. Biden wants to expand the state enormously. While Trump is not a solid steward of finance, he is not that wasteful. Trump is by and large a deregulator, Biden a regulator. Specifically, Biden will increase government engagement in healthcare to the detriment of innovation and efficient pricing, and pave the way for single payers. Even without a congress, he promises to get involved in the job market. Classical liberals were rightly concerned about some of Trump’s trade policies. But Biden has already announced a moratorium on pacts that would create freer trade.
The attack of the left on merit is ultimately an attack on freedom because only a legally enforced hierarchy can prevent the development of a meritocracy in a modern society.
While there were reasons for a classical liberal to vote against the president, they revolved mainly around his failure to adequately fill the office of head of state, which undermined the essential symbolic and unified function of the presidency.
While Trump was clearly the better, if anything but perfect, candidate for politics from the classical liberal perspective, his shortcomings as head of state often brought this politics into disrepute. So his loss to classical liberalism is not quite as much of a blow as usual. And the rest of the election was anything but a catastrophe. The classically more liberal party won sizeable seats in the House of Representatives and could keep the Senate – despite a pandemic and recession that typically favors a party with large government.
In addition, the results of the most important referendums – the most direct expression of the will of the people – were oriented in the classical liberal direction. Most importantly, voters in California – a state that regularly elects leftists to office – voted firmly to uphold the prohibition of racial and gender preferences in government agencies and state university admissions. In my own state of Illinois, the electorate opposed a progressive income tax because it was disgusted by its bloated and corrupt government – a problem it shares with many other jurisdictions based on principles contrary to classical liberalism.
Despite the great improvement in the judiciary and the tolerable election results, classical liberalism remains in danger due to the ongoing cultural revolution. Classical liberalism was driven by the culture of the Enlightenment – its appreciation of the individual, its celebration of merit, and its adherence to an empirical view of the world. All of these principles of Enlightenment thinking are threatened today, and classical liberalism can only survive as a philosophy of government if it remains dominant.
First, identity politics is increasing its hold in the United States. Universities, including my own, declare themselves “anti-racist” institutions, making race and gender the preferred prism of all thought outside of the hard sciences. Part of our corporate culture today resembles elite universities. This is not surprising, because these universities are the pipeline to high-level companies. And unfortunately, some aspects of Trumpism itself have adopted an aspect of identity politics, mistakenly viewing the United States as an ethnic polity like France or Germany rather than an ideal devoted to ideals consistent with classical liberalism.
Individualism is closely related to the creation of a meritocracy that embodies the Enlightenment idea that the individual ascends according to their talents. An open society determines which talents are most needed. Today, however, meritocracy is being criticized for a long time. The attack on merit is ultimately an attack on freedom because only a legally enforced hierarchy can prevent a meritocracy from developing in a modern society. We are seeing the first proposals to reflect this onslaught stemming from efforts to get slots allocated in select racial public schools to abolish private schools.
After all, a deeply anti-empirical spirit haunts the country. This development is in part related to identity politics because, despite all the evidence, this policy assumes that any different outcomes between different groups are the result of different treatment (although sophisticated analysts such as Thomas Sowell have shown that the causes are in fact very complex). But this anti-empirical twist goes beyond identity politics and has its roots in the need for many to live by a secular myth that will explain the whole world. The persistent inability of some Donald Trump supporters to accept the reality of his defeat could also reflect the need to live in a world of fantasy. Social myths uncomfortably match complicated facts that must be suppressed.
The future of culture is unpredictable. Moral relativism, for example, increased until 9/11 seemed to make it untenable. But the main features that undermined the Enlightenment culture on which classical liberalism is based have long grown in strength. The political correctness on which the more virulent identity politics of our time is built began in the 1980s. The decline of mainstream religion has lasted for a century. It is these underlying trends that worry me most about the future of classical liberalism, even if it has now gained a redoubt in our judiciary and has retained a place in our politics.