Lobster or Frog?

Maybe Paine, not Burke, is Right for Our Times

Consider, if you will, that Thomas Paine, not Edmund Burke, may be right for our time, not in the particulars but in spirit.

In conservative intellectual circles, you are taught that Paine is the bad guy, the unmoored revolutionary. In a word, the radical. Burke is the good guy, standing athwart history.

Paine’s anti-monarchism, irreligion, Francophilia, and egalitarianism—I reject it all. Contra Paine, the American assertion of independence was not for “liberty” in the abstract, but for a particular expression and expectation of it, non-transferable to other contexts. In short, a way of life, not Paine’s universalism. Paine and Burke alike speak too much of “principles” albeit Paine rightly criticizes Burke for not distinguishing between “men and principles” even as his own assertions are often couched in abstract principles.

And yet, a real question, one that conservatives don’t like to consider, is whether Burke’s advice is perennial or confined in its wisdom to circumstance. A conservative sensibility would demand the latter. Conversely, the question is whether Paine is right, in principle, in certain times, even in our times.

Forget conservatism, whatever that means now, for a moment. A true and nimble statesman, like our founder were, would ask whether it is the Frog or the Lobster for this moment?

In their “great debate,” Paine argues that,

“Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated.”

[…]

“I am not contending for nor against any form of government”

[…]

“I am contending for the rights of the living, and against their being willed away, and controuled and contracted for, by the manuscript assumed authority of the dead; and Mr. Burke is contending for the authority of the dead over the rights and freedom of the living.”

Now, Paine goes on to deny any continuity, in principle, any obligation for maintenance, between generations. This is extreme and he often caricatures Burke for polemical effect, or out of sheer spite. But there is something to it.

“Do the living have an obligation to any and all decisions, enactments, whatever, of the dead? Does obligation to the unborn supersede obligation to the dead. How long must the dead be passed to acquire such permanence?”

Paine exposes how sentimental Burke is, and how said sentiment, however noble in theory, is not workable in all circumstances. Burke’s position makes a hundred years impenetrable, unalterable (“an insallible [sic] parliament of former days”). What is done becomes “divine authority.”

What happens if century old promulgations are bad, unconducive to present needs of the people, to the preservation of the nation, or if the same were marked departures from a good once established but then abrogated by the generation in question? What if the historical chasm between what was once had, what has been done, and what is now had is too great to bridge?  

There is a question here of infinite regression. More detrimentally, it hamstrings action unto renewal—or, yes, revolution—accommodated to pressing circumstances. Is there any time when Burke would accept that overhaul and alteration was required? Or is it all purely historicist? “[W]hatever appertains to the nature of man, cannot be annihilated by man.,” so where does it begin and end? And should this abstract principle, however appealing, be absolute? Is revolution, to stick with the parlance of Paine, illegitimate if it lacks sufficient continuity with the preceding generation—two, three, four of them?

Paine’s anthropology is evidently underdeveloped, but his inquiry retains merit all the same.

“It requires but a very small glance of thought to perceive, that altho’ laws made in one generation often continue in force through succeeding generations, yet that they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent.”

Can this tacit consent ever be rescinded? That’s the question. Need things be as they are? Or are we bound by prior decisions because they are prior: “The parliament of 1688 might as well have passed an act to have authorized themselves to live forever.”

For us, must the parliaments and their enactments of 1868 or 1947 or 1965 live forever? A Burkean—an identity erroneous imported to our national tradition by American conservatives because he said something nice once about the War for Independence—outlook tends to elevate the forms, the way of doing, over the way of life, over the nation.

Now, to be sure, a significant amount of weight in the right’s calls to alteration and repudiation is derived from appeals to American history, text, and tradition. What is at issue is the logic of repealing alterations to the original form and expression of those things, an alteration now perpetuated via tacit consent for well over a hundred years. How is that hurdle to be cleared? Moreover, a simple return is unviable. Recovery or renewal must be accommodated to present conditions and demands.

When a regime becomes irredeemably corrupt, to the detriment of the people and their historic way of life, is there no remedy after the fact? Or must they be punished for having not acted a hundred years sooner? Are regimes lawful simply because they have been tacitly confirmed?

Our apathy thus far is to our chagrin, but that embarrassment needn’t prevent awakening now.

Surely, we cannot be “men who can consign over the rights of posterity forever on the authority of a mouldy [sic] parchment.”

What if this was the scenario (per Paine):

“When despotism has established itself for ages in a country, as in France, it is not in the person of the King only that it resides. It has the appearance of being so in show, and in nominal authority; but it is not so in practice, and in fact. It has its standard everywhere. Every office and department has its despotism, founded upon custom and usage.”

We have seen a regime change over the past several years—in the making generations before. Subtleties gave way to explicit overthrowal, viz., vandalization of monuments to the prior regime always marks the inauguration of a new one. Charles Kesler points this out at the beginning of his Crisis of Two Constitutions. Imagery of Stalin and Lenin was defaced after the Iron Curtain fell; Saddam was toppled following shock and awe; Geroge III was decapitated and shot following the public reading of the Declaration in New York City. The foot soldiers of our present regime began with Confederates and worked their way to Lincoln, Jefferson, Washington, and, in some cases, churches, any testaments to the original American way of life. New ghastly monuments have been erected around the country in places of prominence to represent the aspirations and morality undergirding the new way of life. The old monuments that survived are shuffled off into museums, like Philistines taking the Ark into their pagan temples, a sign of conquest over the spirit and God of their enemies. As Paine says, People learn their mode of retaliation “from the governments they live under, and retaliate the punishments have been accustomed to behold.” How could January 6 seems strange given what preceded it?

But defacement and riots are insufficient without more substantial preparation, otherwise the effect of the former would be immediately thwarted. Political and legal justifications for lawlessness must be asserted first. “Values” like equality and inclusion must become the predominant conditioners of all other pieties, commitments, and laws. Indeed, the entire constitutional order must be rejiggered for these purposes. This kind of thing happens slowly and then quickly. Seeds were planted early, usually for defensible or seemingly good ends, always justified on the basis of accepted commitments. And so, as Christopher Caldwell and others have argued, the new constitutional order enacted between 1868 and 1965 is not only markedly different from what preceded it, but nearly unassailable. The riotous activity pushing the new constitution to its furthest logical conclusions is merely its full incorporation, the final act of things begun over 100 years ago.

With Paine, we might ask contra Burke whether these things must live forever; at some point Burkean “principles” cannot continue to circumvent well-established developments tacitly accepted. Appeals by any school of thought to something standing back of our third and fourth republics cannot do so on the basis of continuity or conservation. All that can be asserted is revolution, overhaul, radicalism.

It is a mistake to think these assertions per se faulty, ruinous, or evil. The question is one of fruit and ends. The French Revolution was decidedly rotten, and Paine’s attempts to vindicate it are pitiful, even then. Again, however, the impulse itself is not negated by misuse.

We must recognize that our situation is not the same as our late-eighteenth century ancestors. Our losses are less recent, the train of abuses and usurpations longer. We cannot grasp anything from yesterday, last year, or even last decade; the chronological gulf between what we have and what we’ve lost is vast. And so, our case is not that our inherited privileges and immunities were violated by the last session of parliament, but that they were scuttled generations ago.

In other words, if we want recovery, a re-founding of the American way of life, the original constitutional order, et cetera—adjusted for present circumstances—then we should think more in terms of inaugurating a new republic, not quibbling over the norms and normalcy of the current one, not trying to preserve the seeds of our own undoing, and not longing for the preconditions of our ills like Israelites in the desert. If we really want the kind of thing the founders had, both politically and culturally—for simple return is impossible—then we should expect nothing less drastic than what was required of them.

After appeals to more recent precedent and expectations failed them in their case with parliament, and then the Crown, they were forced to begin anew, which is not to say wholly new. But we must recognize that in terms of intellectual and moral proximity, our citations of the founders are about as remote as their invocations of the Romans. The founders’ constitution is, in fact, dead, just as Justice Scalia said. And that’s the problem. Law must be living if it is to govern people, and its life must derive from their way of life. It is not a contest between dead and living constitutions, but a question of what kind of living constitution we will have. There can only be one. And life cannot be supplied by bare precedent, however rightly selective, but the true nature of things.

“Those who lived a hundred or a thousand years ago, were then moderns, as we are now. They had their ancients, and those ancients had others, and we also shall be ancients in our turn. If the mere name of antiquiry is to govern in the affairs of life, the people who are to live an hundred or a thousand years hence, may as well take us for a precedent, as we make a precedent of those who lived an hundred or a thousand years ago.”

Erroneous in his grasp of man’s origin, nature, and end as he might have been, Paine is onto something here, however provocative. It is not enough to appeal to yesterday, or yesteryear. This is another way of saying positivism is weak in an environment foreign to its enactment. The Federalist Papers are irrelevant to a place and time that lacks the socio-political expectations, moral assumptions, and constitutional order for which they were written. Today we have a different constitution and are a different people, a multiplicity of nations, tribes, and tongues. I wish it weren’t so, but it is. Appeal to Madison, Hamilton, and Jay are futile unless something is done to reconstruct conditions wherein they will possess relevance and sense. It may be that we can no longer effectively think and do what they did, but only like they did. Maybe the best path to filial piety is in being revolutionary ourselves. Whatever we do, we will be called that anyway.   

Paine wanted to interpret the American novus ordo seclorum to be more radical, pristine, and universal than it was. Skewed analysis aside, his insistence over and against Burke that there are times when a regime is so corrupt and ill-suited to a people that there is nothing now living worth conserving should be something American conservatives ponder more carefully. They should dare to entertain the notion that Burke may have been right for his own people at his own time but might not be right for ours.

Image: Washington Crossing the Delaware by Emanuel Leutze, 1851.