Countering Contemporary Criticism of America's Founding Principles

0:00Peter Berkowitz:This is a special episode of Stanford Legal, a recording from one of the many special discussions that take place here at Stanford. Keep following the feed for our regular programming.

0:26Welcome to The Declaration at 250, a special series from the Stanford Constitutional Law Center, presented by Stanford Legal. I'm Michael McConnell. The Declaration of Independence proclaims a revolutionary idea that all people possess equal and unalienable rights. For two and a half centuries, the American experiment, a multi-religious, multi-ethnic nation built on this principle, has expanded freedom, legal equality, and prosperity in ways unprecedented in human history. Yet today, the Declaration's core principles face renewed criticism from unexpected quarters, Progressive scholars argue its language obscured the reality of slavery and justified cultural domination.

1:12Voices on the New Right reject the very concept of natural rights as dangerously abstract or historically naive. In this episode, Peter Berkowitz, senior fellow at the Hoover Institution, takes on these contemporary critiques directly. He restates the Declaration's foundational ideas in clear terms, examines the intellectual merit of recent objections, and explores what the Declaration's logic means for American political life and U.S. engagement with the world today. He will be in conversation with Stanford professor Stephen Haber, a scholar in political science, history, and economics. In an era of polarization and historical revisionism, can the Declaration's principles still command our allegiance?

1:59Let's find out. Our next session is going to feature a talk by our colleague Peter Berkowitz, who is the Tad and Diana, Diane Tobey Senior Fellow at the Hoover Institution stationed in Washington, D.C. He's a former head of policy and planning at the State Department, has lectured widely both in the United States and in a number of foreign countries about the principles of American constitutionalism. Former, used to teach political philosophy and government at Harvard University and And along with Peter is Professor Stephen Haber. He is a, he basically, we don't need multidisciplinary studies when you have Steve Haber on the podium because he teaches political science, history, and economics.

3:05And so I'd like to welcome Peter Berkowitz and Steve Haber to the podium. I see Steve. Where is Peter? There he is. So please, please join me in welcoming Peter Berkowitz and Steve Haber. And they're going to be addressing an interesting problem. And for much of American history, I think it could be said that there was broad consensus that they at least got the principles right at the beginning. and the question is how do we live up to them. The question was application. But more recently, on both the left and the right, there is at least a more noticeable, maybe more strident criticism that maybe the founding principles were wrong from the beginning.

4:03And that is the topic that Peter and Steve are going to be addressing for us. Thank you, Michael, for the opportunity to talk about the Declaration, what new can be said. My short answer to the question is new things have to be said in response to new criticisms. Here's my longer answer. With the signing of the Declaration of Independence 250 years ago, America's founders accomplished something new under the sun. They brought into existence a nation-state based on the belief that human beings are equally endowed with unalienable rights, the rights inherent in all human beings. This year marks another achievement for the Declaration.

4:56Never before has a nation dedicated to unalienable rights endured for 250 years. And not only has the United States endured, notwithstanding the social and political turbulence roiling the nation, no multi-religious, multi-racial, multi-ethnic nation state in human history has more successfully secured for its citizens freedom and equality under law, economic prosperity, and the ability to defend itself by projecting military power abroad. No small credit for the nation's enduring and flourishing, I think, goes to America's enduring principles. Yet in recent years, critics on both left and right have subjected the Declaration's central principles to harsh and strangely overlapping criticisms.

5:51Eminent figures associated with the postmodern progressive left accuse the Declaration's principles, the principles of freedom and equality, of obscuring, if not empowering, the evil institution of slavery. Meanwhile, prominent members of the post-liberal right charge that the self-evident truths set forth in the Declaration are neither true nor beneficial, but rather constitute the chief source of the multifarious maladies afflicting the nation. Postmodern progressives blamed those principles for the perpetuation of systemic racism. Post-liberal detractors condemned them for the systemic degradation of men and women of all races and ethnicities who live in the United States.

6:41both finding the Declaration's affirmation of universal rights a pretext for colonizing other countries, suppressing foreign cultures, and imposing America's ways and rules on other peoples and nations. And both indulge extravagant speculations about founding new forms of government untainted by the basic rights and fundamental freedoms promised by the Declaration. Let's take a step back. The American journey from 1776 to 2026 has been marked by the struggle, almost defined by it, to honor more fully the Declaration's promise of equality and fundamental rights. America has benefited from a common language, abundant natural resources, the protection afforded by vast oceans to the east and to the west, by peaceful and stable borders to the north and south for much of our history, and a moral and political heritage entwining biblical faith, classical thought, and the modern tradition of freedom.

7:47At the same time, America has been compelled to grapple with the legal institution of slavery at its founding and, despite the Civil War and the ratification of the 13th, 14th, and 15th Amendments, slavery's poisonous legacy, to wage war abroad repeatedly, and to reckon with the churn and turbulence generated by a free people and free markets. American citizens' appreciation of this complex and inspiring journey is waning. The nation's educational system bears heavy responsibility for the diminished understanding of the American experiment in order to liberty, for the loss of perspective concerning the merits and shortcomings, its merits and shortcomings, and for the popularity of extreme criticism emerging from both sides of the political spectrum.

8:39All levels of the American educational system have been derelict in their educational duties, but colleges and universities are especially to blame. They train K-12 teachers. American colleges and universities do advance the public interest in a variety of ways. They furnish pre-professional and professional education. They provide a credentialing service for employers. They train scholars. They conduct vital scientific research. And not least, they offer liberal education, the education for free citizens. Liberal education, however, is the least successful part of higher education these days.

9:25In recent years, reformers have justly given more attention to colleges and universities' impairment of free speech and the need to improve viewpoint diversity on campus. The disrepair of the curriculum also deserves attention. In most cases, colleges and universities believe themselves to comply with the imperative of liberal education by requiring students to fulfill distribution requirements. Rarely do the nation's leading institutions fire education mandate courses that all students must complete or identify substantive bodies of knowledge that all students must master. Instead, students meet their obligations by taking a few courses in the humanities, a few in the social sciences, and a few in the sciences, often picking and choosing among dozens of offerings.

10:17Two students Students can fulfill their distribution requirements without reading a single book in common. This from our colleges and universities point of view is not a problem, but rather a source of pride. They believe that they demonstrate their concern for students' individuality and uniqueness by allowing them to choose their own courses and design their own curricula. At the same time, by exposing students to a variety of disciplines and approaches to knowledge institutions of higher education claim to produce open-minded and well-rounded graduates expertly trained to lead once they graduate in changing the world.

10:59Apart from exemplifying liberal education its finest, colleges and universities' failure to impose structure on and give content, give coherent content to the curriculum, betrays it, betrays liberal education. liberal education's traditional aim is to cultivate students capable of exercising the rights and discharging the responsibilities of freedom. Such an education involves the organized introduction to an array of vital topics. Liberal education in America should be rooted in this study of American ideas and institutions, the nation's founding principles, constitutional traditions, cultural cross-currents, economic arrangements, and diplomatic and national security requirements.

11:47Since the nation was not born out of nothing, liberal education America must also concentrate on study of the great books and seminal events of the larger Western civilization from which the United States has emerged and to which it has made a decisive contribution. And since all serious moral and political study must be comparative, liberal education in America should include study of other peoples and nations, their language, their culture, their economic relations, their religious beliefs, and more. America's colleges and universities, though, have abandoned liberal education under the compulsion of three ideals.

12:29One is political, a second is methodological, a third is professional. When suitably refined, each of these ideals is a worthy ideal. However, contemporary academic life has radicalized all three to the great detriment of liberal education. First, contrary to liberal education's imperatives, many faculty members believe that their job is to instill correct views about the pursuit of social justice in America and enlist students in the cause of progressive transformation of politics and society. Liberal education in America, of course, should not be neutral toward fundamental political principles.

13:10It assumes, after all, the goodness of individual freedom and human equality. But to prepare students for freedom and democratic self-government, liberal education must exclude partisan politics from the classroom while fostering appreciation of contending views on fundamental moral and political questions. Yet many of today's classroom crusaders recognize no pedagogical duty to present fairly the other side of the argument. Some even believe themselves obliged, since classroom time is short, to ignore views, regardless of their historical significance and relevance to contemporary politics, that they deem distasteful, demeaning, or destructive.

13:53They are unaware of or unmoved by John Stuart Mill's indispensable observation in On Liberty, that a person who knows only his own side of the case knows little of that. Second, contrary to liberal education's imperatives, many faculty members in the social sciences believe that the scientific method represents the one true approach to knowledge. While the application of the scientific method to the natural world has produced astounding increases in knowledge and know-how, the application of a method designed to account for matter and motion has been decidedly less successful when applied to the world of self-interpreting human beings.

14:38The conduct of social and political animals, that is our conduct, whose beliefs are formed in part by inherited custom and opinion, and whose actions are motivated by fallible human judgment about right and wrong, this conduct cannot be fully captured by methods designed to describe matter in motion. Nevertheless, setbacks in illuminating morality, politics, and society have driven many social scientists to double down on the study of method. Their bewitchment by techniques for counting, measuring, and weighing at the expense of the substance and texture of human affairs has produced disciplines that have less and less to say to citizens about self-government and justice, even as they elaborate more and more intricate methods for studying politics and society.

15:28Third, contrary to the imperatives of liberal education, many professors operate on the assumption that the purpose of undergraduate education is to train the next generation of scholars. Instead of drawing on their expertise to transmit to students the knowledge about America, the West, and the world needed for good citizenship, these professors provide intellectual tools and socialization into the sensibility and behavior required to succeed in the professoriate. Curricula that answer to the imperatives of liberal education would put the Declaration of Independence at the core. The Declaration states in lofty language the principles of freedom on which the United States was founded.

16:15The ideas, the principles that human beings are by nature free and equal. They are endowed with inalienable rights. The chief purpose of government is to secure these rights, and that among these is the right to alter or abolish governments that undertake to systematically deprive them of their basic rights and fundamental freedoms. Rare today, though, is the graduate of the nation's most selective colleges and universities who has been exposed to serious study of America's founding principles, the constitution that institutionalized these principles, and the political struggles throughout our history to realize them.

16:54Few of these students will be conversant with the major ideas and defining events of Western civilization, out of which emerged the American experiment in ordered liberty. And only a small number will have studied the culture, languages, economic systems, politics, and religious beliefs of another civilization, without which a well-rounded assessment of the United States is impossible. Not least among the costs of colleges and universities' betrayal of liberal education is it produces graduates ignorant of the principles and legacy of the Declaration and oblivious to the costs of that ignorance to themselves and the nation.

17:40I want to talk now about, and specifically about, new criticisms of the Declaration. But first, a few remarks about so-called critical thinking, which we specialize here at the university. Humanities and social sciences professors tend to regard critical thinking as the highest part of thinking, or even equate critical thinking with thinking itself. the apotheosis of critical thinking has spawned a rage to criticize. Among other deleterious effects of the rage to criticize are the comprehensive attacks from the postmodern progressive left and the post-liberal right on America's founding principles affirmed in the Declaration of Independence.

18:25All-worthy thinking about ethics and politics, of course, involves a critical component. The conviction that critical thinking represents the exercise of thinking, however, induces professors to concentrate exclusively on the defects of inherited beliefs, customary practices, and established institutions. It is one thing, though, to recognize that human beings are self-interested and fallible, that language is imprecise, ambiguous, and always open to interpretation and contestation, and that laws, institutions, and policies routinely fall short and rarely work is promised. It is quite another to insist that the principal task of thinking is to pinpoint people's and institutions' shortcomings and that the supreme intellectual accomplishment is to expose the wickedness of the civilization of which one is a part.

19:22Critical thinking should be combined with, there are terms for it, I prefer the term generous thinking. Grasping the needs met and purposes served by inherited beliefs, customary practices, and established institutions is also essential to understanding ethics and politics. Plato and John Stuart Mill, two great pioneers of liberal education, well understood that comprehending the merits of ideas and institutions is no less important than assessing their deficiencies. Some examples, quickly. In Book One of the Republic, Plato's Socrates exposes the limitations of three familiar opinions about justice.

20:04Some say that it consists in keeping promises. Others that it revolves around helping friends and harming enemies. And others still maintain that in practice, justice consists of nothing other than the advantage of the stronger. Justice really means might makes right. Socrates does not, as is commonly supposed, refute these opinions. Rather, he shows that each is inadequate, capturing aspect of justice, but misleading by purporting to state the whole truth about justice. To understand justice in its complexity and fullness, Plato's Republic teaches, it's necessary to understand why the most common opinions about it are partly true and partly false.

20:51Peter Berkowitz:Hi, this is Pam Carlin. I want to tell you about Amicus, Slate's weekly podcast about the U.S. Supreme Court, hosted by our friends Dahlia Lithwick and Mark Joseph Stern. It's officially the end of the term, and their perspectives on the Supreme Court are essential listening. In addition to their weekly episodes, they'll be doing special episodes about some of the most consequential decisions, sharing incisive analysis of the court with some of the smartest court watchers out there. Dahlia and Mark are there to make sure you truly understand what's going on and what we can do about it. For nearly 30 years, Slade has pulled back the curtain on the justice's motives.

21:24Peter Berkowitz:And with the court now rewriting American life as we know it, you need to know exactly what those decisions will mean for you and the people in your life. Listen now to Amicus. That's A-M-I-C-U-S, wherever you get your podcasts. For example, it is usually just to keep promises, but sometimes returning what is owed would harm the recipient. Especially in war, justice requires helping friends and harming enemies, but we make errors about who are our friends and enemies, and harming people leaves them less just. And although some of what goes by the name of justice in any given society serves the selfish interests of the powerful, the very notion of selfish interests reflects a conception of fairness and appropriateness that transcends short-term goals and love of dominion.

22:11John Stuart Mill showed a similar appreciation of the need for moral and political thinking to combine criticism and generosity. In his tribute to the progressive rationalist Jeremy Bentham, this was published in 1838, and in his tribute to conservative poet Samuel Taylor Coleridge, published in 1840, Mill argues that both thinkers, the progressive and the conservative, provided lessons crucial to understanding human affairs in modern society. Mill observed in his tribute to Bentham that to him, to Bentham it was, I quote now, Now, it was given to discern more particularly those truths with which existing doctrines and institutions were at variance, to Coleridge, the neglected truths which lay in them.

22:58In his tribute to Coleridge, Mill adds that both deserve the title Great Questioner of Things Established, Great Questioner of Things Established, but for questioning different aspects of established things. Quote,

23:41it has ever since been rendered continually credible, has seemed to a succession of persons to be a faithful interpretation of their experience. Leading postmodern progressive and post-liberal critics of America's founding principles do actually know how to think critically like Bentham and generously like Coleridge, but not as applied to the same set of beliefs, practices, and institutions. When it comes to America's founding principles, they discern nothing but intellectual fraud and political injustice. Concerning their preferred blueprints for fashioning novel institutional arrangements or for restoring past glories, however, they see faithful expression of human emancipation and flourishing.

24:33The postmodern progressive critique of America's founding principles derives in large measure from Karl Marx and his 20th century Frankfurt School acolytes. This is not to say that the postmodern progressives have studied Marx or heard of the Frankfurt School, or to deny the often subterranean influence of Nietzsche, Heidegger, and Karl Schmidt, along with Derrida, Lacan, and Foucault, but with its characteristic conviction that ideological blinders hide the nation's systemic injustices, its telltale terminology of oppressor and oppressed, and its utopian version of fundamental moral and political transformation that overcomes injustice and ends oppression, postmodern progressivism betrays its debt to Marx's enormously influential repudiation of political and economic freedom.

25:25Like Marx, postmodern progressives overlook the self-correcting powers of rights-protecting democracies, the benefits of limited government, and the disadvantages of concentrated state power. The postmodern progressive critique comes in several versions. Here at the law school, people will be especially aware of critical legal studies theorists who argue that far from serving freedom and equality, the American system of equal rights under law rationalizes and insulates from scrutiny an unjust status quo in which the wealthy oppress the poor. Law professor Catherine McKinnon championed a radical feminism according to which the fundamental divide in America stemmed not from class but from sex.

26:16This created a, her term, male supremacist society that afflicted women physically and psychologically, leaving it doubtful whether women could meaningfully consent to sex. And critical race theorists contended that the American political tradition sustains and is sustained by a structuralist or systemic racism that so thoroughly permanates the nation's norms and which is so deeply inscribed in its laws and institutions that only measures that discriminate based on race today can overcome the nation's systemic racism. Meanwhile, on the other side, the post-liberal critique of Americans' founding principles takes its bearing from pre-modern thinking, particularly Aristotle and Thomas Aquinas, or I really should insist, a certain interpretation of Aristotle and Thomas Aquinas.

27:12The post-liberal right embraces the idea that the highest aim of politics is to care for souls by fostering virtues and guiding people toward salvation. At the same time, it overlooks the warnings advanced by both classical philosophy and Christian thinking that while the best regime should serve as a standard, it is for all practical purposes unattainable, and therefore, politics consists for the most part in preserving and improving imperfect regimes. The post-liberal critique of America's founding principles also comes in several versions. The two most influential have been developed by University of Notre Dame political scientist Patrick Deneen and Harvard Law School professor Adrian Vermeule.

27:55In a 2018 book, Why Liberalism Failed, Deneen argues that the fatal flaws of the principles of freedom that undergird American constitutional government should now be visible to all reasonable people. The fundamental flaws of the principles on which our nation is based. Foremost among those principles is the Lockean contention, central to the American Declaration, that human beings are by nature free and equally endowed with fundamental rights. In Deneen's view, notwithstanding Locke's insistence on the distinction between liberty and license, the belief in equality and basic rights and fundamental freedoms entails a pure or total freedom that is impossible to achieve even as it is dehumanizing to pursue.

28:41To escape the corruption and decadence of contemporary society, Deneen constructs a retreat, sorry, Deneen counsels a retreat into small, tight-knit, self-governing communities. He does not notice that his counsel embodies the founding American idea of a nation of small, tight-knit, self-governing communities protected from despotism by a limited constitutional government. Subsequently, Deneen performs an unexplained about-face in regime change in 2023, arguing that the proper response to the failure of the American constitutional order is the creation of a new regime, which marries aristocracy and populism in order to promote virtue and care for the soul.

29:29In common good constitutionalism, Vermeule agrees with Deneen. that classical liberal principles deform our politics and damage our humanity. In contrast to Deneen, Vermeule argues that America was not founded on those principles, on Lockeyn principles, but rather on classical legal principles deriving from Aristotle, Cicero, and Thomas Aquinas. Accordingly, Vermeule would have the legislative branch make law, the executive branch execute the law and the judicial branch decide cases and controversy that arise under the law, all with the view, not to the principles of individual freedom and human equality, but rather with a view to the highest truths of moral excellence and human salvation.

30:16But that is to deny, contrary to the stark evidence of the Declaration, that Lockean principles played a decisive role in the thinking of America's founding generation, and is to suppose, contrary to experience, that those who govern will be well endowed with the wisdom to discern, the prudence to fashion and enact, and the piety to implement laws that minister to the needs of citizen souls. For the post-liberal right, as for the post-modern progressive left, little, if anything good, deserves to be said about America's founding principles. while neither sees in its own ideal imperfections and downsides.

31:00Both fail to consider conscientiously the neglected truths within America's founding principles and to explore the reasons why so many have found them not merely credible but choice-worthy, and as the earlier session indicated, not only in the United States but around the world. and both overlook the disadvantages of their schemes for transforming America and the dangers endemic to radical change, be it by the left or by the right. In sum, one-sided thinking blinds the postmodern progressive left and the post-liberal right to the dependence of improving America on conserving the principles the nation's Declaration of Independence set forth 250 years ago.