The Burdens of Belonging: Roger Scruton’s Nation-State

From his position as the dean of English conservatism, Roger Scruton explains the ideas, habits, and traditions that made the West a civilization not only of immense learning and wealth, but also one of love and mercy. A philosopher, musician, environmentalist, novelist, aesthete, and former literary smuggler in Communist-ruled Czechoslovakia, Scruton’s depth of learning enables him to speak with unique authority on how the West’s achievements opened it to democracy, the rule of law, and profound loyalty to the nation-state. It is this last topic, the nation-state, that has attracted Scruton’s attention in recent years precisely because of its precarious standing on the world stage. Scruton’s defense of the nation-state engages its many critics on their own ground. To their insistence that the nation-state is the wellspring of insularity and rapacious nationalism, Scruton underscores that the nation-state is the pivotal seat of tolerance, prosperity, and democratic accountability.

In explaining the importance of the nation-state, Scruton offers a just and humane articulation of how this political form can join a liberal spirit of self-government with public accountability of rulers to the ruled. The nation-state in Scruton’s formulation represents an inheritance of authority, loyalty, liberality, and tradition that engages the consent of the people with political responsibility to a social contract that transcends the present age. As such, the nation-state is a record of the social, religious, and political history of a people, conserved and revised by collective governing bodies.

Scruton has articulated his particular understanding of the nation-state, however, in relation to its most powerful foe: the European Union. Opposition to the pomps and works of the European Union has marked Scruton’s writings for years. In A Political Philosophy: Arguments for Conservatism (2007) he predicted that Europe would be under dire threat of losing its national jurisdictions and courts, along with all the customs, habits, and laws that have formed its various nations. The empire of Brussels, he argued, refuses to recognize either the common or the particular heritages of the European peoples, and substitutes the centralized order of a human rights–based bureaucratic governance that would rule the continent through the EU’s various unaccountable bodies. The EU views Europe not through its constituent nations but through the lenses of humanitarianism and the rights of autonomous individuals with very thin political duties. To this challenge, Scruton responds that the people of Europe, who are the only barrier to the wishes of the EU, must “choose whether to go forward to that new condition, or back to the tried and familiar sovereignty of the territorial nation state.”¹

In response to Scruton’s foreboding, we might say that an accumulation of transformative events has partly curbed the enthusiasm of the transnationalists: from the attacks of September 11, 2001, to the global financial meltdown of 2008, from lingering economic stasis in most Western countries to the shock of “Brexit,” from Mideast disintegration to Islamic migration. These events have served to inspire various nationalist movements of opposition both in European countries and in the United States. The hopes for a common European citizenship, or of the spread of global democracy that inspired many in America during the post–Cold War period, have waned. But if the story has turned unpredictable as of late, this should lead to an opening for the arguments Scruton has been trying to make for years with regard to the legitimacy of the nation-state versus transnational governance.

Brexit, Political Disruption, and Social Trust

Scruton’s articulation of the nation-state’s merits and its achievements appears most clearly in his commentary on Brexit and its meaning for the United Kingdom and the European Union. The earthquake of Brexit has shaken the belief in the inevitability of the widening of the European project. The EU logic of ever-greater integration, achieved largely apart from democratic means (and sometimes in the face of democratic resistance), has now received immovable opposition from the British electorate. Their insistence that the United Kingdom invoke Article 50 of the Lisbon Treaty means that a very significant country within the EU believes its sovereignty as a nation-state outweighs the benefits that come from the surrender of sovereignty to the institutional architecture of the European Union.

The harsh aftermath of the Brexit referendum in June 2016 revealed that much of the British elite, whom Scruton calls the “consultant class,” had formed a close association to the EU governing class. This group mimicked the EU class, Scruton thought, by their call for a new vote—the primary tactic used by the Brussels set when certain nations rejected the Constitution of Europe. A related tactic was to suggest the vote for Leave was illegitimate no matter what, as its supporters were uneducated, old, working-class racists and xenophobes.² That is, one does not argue with such people, but reeducates them, or failing that, repudiates them. This spirit certainly prevailed in media outlets as the earthquake of Brexit continued to send tremors across the UK and Europe at large. In short, Scruton observes, those in British academia, media, banking and finance, and its converging political elites, appear to have rejected democracy itself.

Scruton, however, pulls from this episode of political recrimination a larger lesson—one that weighs in favor of the nation-state—on why Western democracies survive closely contested and fraught political outcomes such as Brexit. Democracies hold together, Scruton argues, because they represent the nation which constitutes the first person plural of the membership of a people. This bond holds together a diverse people in a political union. We belong together (this reasoning goes) because of our shared language, customs, public spirit, and habits of suffering results we don’t like because we know that we have the ability to change our government. The absence of social trust permits the deep disagreements and various identities of citizens to manifest themselves, inaugurating the witches’ brew that sets people against one another.

What the Brexit campaign and its unpleasant aftermath revealed, Scruton notes, was two groups of people who had built social trust differently. An urban, consultant elite, had built trust on the basis of international networks that facilitated “career moves, joint projects, cooperation across borders and what John Stuart Mill called ‘experiments of living.’” “Like the aristocrats of old,” Scruton added, “they form their networks without reference to national boundaries. They do not, on the whole, depend on a particular place, a particular faith or a particular routine for their sense of membership, and their language is the international language of commerce.”³ However, this class’s forgetfulness of local place is short-sighted, Scruton says. While their upper-class incomes are dependent on contributing a highvalue profile to business and commercial transactions, they cannot escape their dependency on those who constitute a local, producer class, “for whom attachment to a place and its customs is implicit in all that they do.” Their lives and jobs are intimately tied to the social trust generic to the United Kingdom and the traditions that communicate its meaning to the present generation. The split between these two classes reflects a more foundational disagreement concerning whose social trust and thus whose United Kingdom should prevail.

The charge of “xenophobic grudges” leveled against the local producers lacked merit precisely because the question of “who we are” had not been raised by locals so much as answered through the EU’s open borders commitment and by elites’ refusal to permit discussion of the question, except on their terms.⁴ Of course, the issue became acute for two reasons: Muslim immigration that proceeded apace without sufficient evidence that its adherents were actively integrating into the social trust of the nation, and low-wage immigration from eastern European countries that continuously brought down the price of labor for the working class. But when conversations with words are forbidden, we get conversations with deeds. Scruton puts forward the countercharge of “oikophobia,” or fear of home, which he claims holds the British Europhile elite in its grip. Their hatred of home leads them to undermine the UK’s domestic sovereignty as well as the prepolitical loyalties that generate the social trust of a modern democracy. In its place, they desire the endless expansion of the EU’s “acquis communautaire,” ignoring the domestic burdens of incorporating all EU law. Most people outgrow a certain youthful rebellious aversion to home, but for many intellectuals, Scruton notes that oikophobia guides their thinking and conduct. Somewhere between xenophobia and oikophobia rests the political middle ground of the nation-state. When its powers are not asserted to the detriment of other peoples, nor in a manner forgetful of its loyalties and customs that give support to liberal government, then it becomes a proper political home where we participate and flourish as citizens and relational beings.

What really widened the chasm of affection between the local producing class and the EU, Scruton notes, was the democratic deficit and the related intrusion of the European courts. That intrusion has been experienced as a foreign invasion that the people had not consented to and could not control. There was, many sensed, another sovereign whose laws governed the UK. The EU has a particular answer to these charges of a democratic deficit: signatories to the Treaty of Rome only consented to laws that would regulate trade and not local matters. There is also a promise embedded in the EU project of subsidiarity, a term whose origin lies in Catholic social thought’s argument that power should be exercised at the lowest level appropriate to its purpose. But since trade among nations can be rightly seen to touch many areas of life, the remit of the EU has been constantly expanding, making the principle of subsidiarity largely a shrinking violet. It is, Scruton says, “EU Newspeak,” whereby the normal meaning of subsidiarity is effaced to mean “local rule where the EU will permit.”⁵

Likewise, the EU Commission body, which possesses the most power of any EU organ, consists of unelected members who issue rules without public debate, and who are not directly accountable for their actions. And how could they be? Scruton inquires, for there is no We or first person plural for them to be accountable to. The EU has singularly failed to transplant loyalty to its laws and institutions from the loyalties that local citizenries still accord their states. But, with Brexit, the EU is faced with a reality from which it continues to hold itself aloof: political forms of attachment cannot be forced on a people if these forms aren’t proper to their life.

The European Union, Scruton says, is stagnating. Here, Scruton isn’t referring to its lackluster economic growth, aging populations, or its unworkable monetary policy, but to the fact that the European Treaty can only be changed by a majority vote of signatories. There is no real way for a bloc of nations to challenge its inner workings. The path of the EU cannot be publicly debated and shaped; it must always be towards “more Europe” or ever closer Union. The only choice has been an ongoing diminishment of the national body that once provided a framework for liberal democracy. But this deterministic path is now under threat from the rising sentiments of the various peoples of Europe who increasingly view the surrender of their national sovereignty as an absolute loss. In the absence of the ability to change, and under ever-increasing populist pressure, the Union cannot be reformed. It can only snap. And that makes the near defeat of the Conservatives in the June parliamentary election called by Prime Minister Theresa May even more unfortunate. At present, it appears that May’s position—assuming she holds on to power—will be reduced to negotiating for a “soft” Brexit that will not likely take advantage of the opportunity for a full recovery of UK sovereignty.

Losing the Nation-State

Much of modern thought insists that we study and understand human beings only as objects. Indeed, much of the EU’s transnational governance model relies upon this insistence on a scientific construction of politics. But Scruton replies with the language of the subjective person who is relational and yearns for home, for family, for country, and for those things to which he can give his love and obedience and thus personalize them. Modernity, Scruton insists in his satirical Xanthippic Dialogues (1993), “peels away the personality of the world, and then complains that what it finds is meaningless.” This situation results from its insistence that man can be known and explained in scientific terms as a game piece in the hands of ideologies: communism, nationalism, fascism, progressivism, behaviorism, feminism, and extreme forms of individualism, among many others. The one thing most needful, Scruton suggests instead, is the language of personhood, freedom, and love that can remove our blindness to the human world and reveal us to each other. In the dialogue of personhood, we distinguish ourselves from “the rest of nature” and, therefore, from the unyielding lens of the scientist who is unable to capture the full person. Most importantly, as Scruton writes in Death-Devoted Heart (2003),  such a dialogue produces “the basis for those moral, legal, and political relations in which our freedom is exercised and fulfilled.”

Scruton’s perspective on nationhood began to change when, as a young man down and out in Paris, he was brought face to face with May 1968’s eponymous soixante-huitards. Scruton’s later reflection on this event in his 2005 book Gentle Regrets tells us that this was not only the moment where he crossed over into the haunted wood of Burkean conservatism, but where he put his finger on the thread of national loyalty. Contrary to the well-worn complaint that national loyalty was the source of the West’s undoing in two continental wars, Scruton understood that it actually is the precondition for the gifts of constitutionalism, the rule of law, citizenship, learning, and free enterprise. Scruton’s reflections provide us with a justification for each element—but first we must go to the barricades.

There was something unnerving, Scruton notes, about observing a group of policemen grow hesitant and fearful in a Parisian alley right before they were struck down by a hail of cobblestones, their attackers cheering as additional security and medics arrived to take their place and tend to the wounded. Storefronts were shattered, as each smashed pane indicated the limitless taste for destruction on the part of the rioters. Amid this orgy of repudiation by French students, Scruton the Englishman read the French patriot Charles de Gaulle’s Mémoires de guerre (1954). The “old fascist,” as de Gaulle was called by the protesters, said that when the French 2nd Armored Division and the U.S. 4th Infantry Division liberated Paris in 1944 and he took control of the city, one of his first acts was to visit Notre Dame Cathedral, even though German snipers were still firing onto the streets. Scruton notes that while the nihilism of the ’68ers unfolded before him, reading of de Gaulle’s valor incarnated for him what membership in a nation is and what goods it holds in hand. He intimately understood the affirmation of the national idea in de Gaulle’s willingness to brave death by sniper fire in order to uphold French patriotism. Conversely, Scruton also witnessed the denial of the national idea by Marxist-inspired rioters whose attack on police and property was an attempt to destroy bourgeois French society. What crystallized in Scruton’s mind was the Gaullist vision that a nation is not only defined by borders or institutions but by prepossessions of language, high culture, memory, religion, shared purposes, and the loyalty they inspire and which can be drawn on in moments of political crisis.⁶ It was these prepossessions that the ’68ers meant to repudiate. They knew where the real treasure was kept.

Having walked in de Gaulle’s footsteps, an inspired Scruton confronts a friend who had participated in the mayhem:

What, I asked, do you propose to put in the place of this “bourgeoisie” whom you despise, and to whom you owe the freedom and prosperity that enable you to play on your toy barricades? What vision of France and its culture compels you? And are you prepared to die for your beliefs, or merely to put others at risk in order to display them?⁷

Scruton now asks these questions to contemporary detractors who refuse to accord any intrinsic worth to the nation-state as an inheritance and gift of Western freedom. And the threats come in multiple directions: from European Union bureaucrats bent on “ever more union” without qualifying what this means and what powers will be needed to achieve it; and from much of the American intelligentsia who, though currently out of government, yearn for the opportunity to squander American constitutional identity with an unbound foreign policy, and by enshrining a rights-driven culture that removes us from our mutual obligations as republican citizens. In a wholly different manner, Islamist terrorists challenge the nation-states they see as idolatrous replacements for the one loyalty that truly matters.

Scruton’s defense of the nation-state is ultimately a defense of home and family, neighborhood and village; these are the intimate things that make a national community possible and which are, in turn, protected by country. But Scruton’s wisdom, borne of experience and reflection on the conditions that Britain and other European countries have faced, carries deep lessons for Americans. We must put back together a constitutional, economic, and foreign policy understanding of our country that displays what Scruton refers to as the first person plural of civic membership. That is, our belonging together as a constitutional people, defined by law and citizenship, must be accorded primacy of place as we attempt to regain our footing in these unsettling times.

Going Home

Scruton’s immediate problem, one that Americans face as well, is that much of England’s cultural, social, religious, and political history has been ignored or dismissed as irredeemably imperialist, racist, sexist, and intolerant. These politically incorrect sins, bred in the bone of the nation, could not be washed away, it was believed, but could be covered over by a new public teaching of egalitarianism, multiculturalism, and social justice. Such reeducation, Scruton says in England: An Elegy (2000) was already becoming evident in his own boyhood schooling in the late 1950s. He innately rebelled against it, desiring “to be reconciled with the thing that everyone denounced, which some called England, some Britain, some the ruling classes and most just ‘them.’”⁸ Such reconciliation is, he thinks, a way of reintroducing neighbors and fellow citizens to the shared “language, customs, territory, and common interest in defense . . . which enable people to call on the sacrifices that make communities durable.”⁹ Why do we have a culture of the rule of law? Look to the loyalties of place, home, and membership, and the expectations of respect that these forge, and there lie the origins of the legitimacy of law. When people know to whom they belong and to whom they are accountable, the social and political aspects of our personhood find their legitimate space for trust and devotion to a public thing.

Modern political theory assumes, according to Scruton, that our peace and prosperity have their roots in a fictitious contract somehow consented to by members of a generation long ago, and to it we should repair for an understanding of our liberties. This useful fiction, though, is only plausible on the basis of our common-sense knowledge that a social contract presupposes a preexisting membership. We need the “burdens of belonging and membership” for a social contract to be conceivable in the first place. Its unique role is to preserve and carry forward more explicitly the allegiance a people have already struck together. And this understanding certainly applies to the United States, a country commonly thought to have begun with the Declaration of Independence. But this sidelines the fact that a preexisting “we” in the colonies were together under the Crown, though largely self-governing, with their affairs regulated by an adapted English common law. We discovered that independence had to be declared and forged in unity. But this unity could only have happened if unwritten norms of territorial loyalty in each colony undergirded an emerging understanding of law of the land, constitutionalism, and citizenship that could be shared. We had to know that we belonged together before the Declaration’s terms could be drafted and agreed to. Scruton, I think, would have us affirm two complementary truths: the Declaration’s stirring appeals to natural rights, though grounded in philosophical truth, could also be so readily received by the colonists because their experience in living the “rights of Englishmen” had prepared them to affirm these essential truths of the American founding.

The nation as the artificial product of the invisible hand is nowhere seen more clearly than in the United States, where it shaped “the most vital and patriotic nation in the modern world,” Scruton observes in The West and the Rest (2002). To produce the U.S. Constitution through negotiation between such varied parties, the Constitutional Convention depended on preexisting colonies whose interests, affections, and loyalties could help to forge “a more perfect Union.” Or as Scruton remarks, the Constitution begins with the words “We, the people.” Who? “Why, us. We who already belong, whose historic tie is now to be transcribed into law.”¹⁰ Membership in a place is the essence of territorial jurisdiction: the common territory that grounds our loyalty allows us to create a shared political identity through the political process. This is the nation-state. Its formation, Scruton says, can be seen through the political history of the United States—“people settling together, solving their conflicts by law, making that law for themselves, and in the course of this process, defining themselves as a ‘we,’ whose shared assets are the land and its law.”

Scruton’s observations on the emergence of the American Constitution strike a common chord with those of the unfortunately neglected nineteenth-century New England thinker Orestes Brownson, who anchors the written Constitution in the unwritten constitution—what he also terms the providential constitution. Brownson’s constitution has less to do with divine intervention than with the observation that no written constitution could emerge ex nihilo, and is predicated on the “givens” that are provided to a people in a particular time. What Brownson means by “providential” is that a constitutional people are inherently guided by custom, tradition, philosophy, theology, and prior political experience. The corollary is that no government can endure if it is a willful construction that defies the historical, spiritual, and cultural materials that have been given to a people. As such, we can see that the progress a people makes depends on loyalty to its territorial jurisdiction and the law that has settled and affirmed its deep commonalities. This observation finds support in Publius’s observation in Federalist No. 2: “Providence has been pleased to give this one connected country, to one united people . . . attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms and efforts . . . have nobly established their general Liberty and Independence.” Such counsel does not deny the existence of a constitutional founding of a country, but underscores the web of ties that make one possible. In this regard, Brownson and Scruton expressly depart from Joseph de Maistre’s claim that even a constitutional founding is impossible.

Critics of nation-states argue that nations are better understood as political constructs, made merely in the image of the powerful—in the interests of “men of property and wealth,” as President Obama once labeled the Founders. National failures are but artificial failures, ones that arise from the greedy and narrow interests that created them and lead them to act selfishly in domestic and foreign policy. Centralizing power in transnational forms of governance is, it follows, a better way to manage the atavistic tendencies of nation-states, by forging international agreements on any number of issues. While Scruton grants that every political settlement is artificial in some respect, the real question concerns what kind of artificiality is at stake. Artifacts that result from centralized decisions differ from “artifacts” that combine the fruit of extended social interactions with the prudence of a new political settlement. The criticism of rationalism which Scruton’s response implies is not a critique of political reason per se but of the ideological tendency to construct a political order apart from actual experiences and contexts of human persons.

Nations, Scruton says, are only properly nations when they are the spontaneous by-products of social interaction. This obviously applies to England, where a homeland became the focus of loyalty because the territory held an array of local political entities, private memberships, customs, traditions, and commerce as ratified by the law. English life was not handed down by the sovereign, but emerged out of social life itself as an attempt to solve immediate problems and preserve peace. The common law was its own tradition that ratified and protected the customs of the English, shielding them from the sovereign and enabling strangers to interact with one another, thus providing a sturdy foundation for markets. The law settled the people to the land that it governed and became the law of the land that judges were duty bound to uphold. For these reasons, Scruton reminds us, the Enlightenment’s rationalist and universal political terms are unable to explain the English political experience.

The Conditions of Enlightenment

Not content merely to prove that the European Union lacks the ability to make an ultimate claim on the sentiments of European peoples, Scruton undermines it on its own terms. There are several bonding principles that history discloses for political solidarity and membership: empire, creed, tribe, and family loyalty. Of these elements, which are capable of providing for tolerance, learning, and trade? Scruton claims that these aspects of enlightened modernity rest on loyalty to the national thing. Enlightenment requires borders—that is, feelings of sentiment and loyalty that are not to a family, tribe, a religious doctrine or a person, but are for a country “defined by a territory, and by the history, culture, and law that have made that territory ours.” It is land and the “narrative of its possession” that enables the peoples of Western nations, despite their many differences, to exist side by side with one another in peace and prosperity, with deep respect for each other’s rights. This occurs without bonds of kinship, family, or tribe to maintain feelings of goodwill and cooperation. For that, we look instead to attachment to the territory and its laws and institutions. These shared possessions form our identity as citizens of a nation-state. If these are taken away, new memberships will form, Scruton argues, but they will most likely be on the basis of tribe, race, or religion, with all of the violence and narrowness of outlook that accompany such loyalties. Empire can certainly achieve these parts of enlightenment, but Scruton adds that only a particular kind of empire, like the Roman or British, generates a profound set of attachments and pride for the metropolitan center and its laws, radiating outward to the provincial territories while also incorporating their local forms. Does the transnational rule of the EU resemble this kind of empire in any substantial way? To ask the question is to answer it.

Territorial loyalty, then, undergirds the durability of the Western state and provides something crucial for immigrants to immigrate into as citizens. One cannot logically migrate into a tribe or a family, but one can migrate into a country if one is “prepared to obey the rules that make that country into a home.”¹¹ Political communities built on a national and not a religious understanding of membership are far more inviting to newcomers. An immigrant to a state built on a religious community must be ready to convert, but an immigrant to a Western national community has only one responsibility: to obey the law. Thus, national loyalties facilitate and forge compromise across interests, classes, and religions, and open us to democracy and consensus-building. Curiously, the European Union is fully aware of these realities, even as it consumes the territorial loyalties that provide the sclerotic Brussels bureaucracies with their only real basis of strength.

These other alternatives to national loyalty can all serve as bonding agents for various peoples, but they leave much to be desired in terms of prosperity and gentility, as well as enlightened thinking and living. The reasons for such diminished, if not horrific outcomes, when compared to the Westphalian nation—ushered in by the Treaty of Westphalia of 1648—are not too hard to understand. Consider one of the most potent forms of loyalty currently bearing down on Europe and America—namely Islam in its aggressive forms.

Scruton raises the alternatives to national loyalty by taking us to the heart of militant Islam in the case made by Sayyid Qutb, the intellectual godfather of the Muslim Brotherhood in Egypt. Educated at the Colorado State College of Education (now the University of Northern Colorado), Qutb argues that the nation-state “is an anti-Islamic idea.”¹² When you dwell in “the shade of Koran,” as Qutb states, you submit to God and not to law made by mere mortals. Such laws have been buried by God’s jurisdiction. Scruton compares Qutb’s statements with those of Iran’s Ayatollah Khomeini, who “dismissed patriotism as paganism.”¹³

While some might ascribe these arguments to an aberrant few, Scruton notes that the contemporary Middle East shows one scenario in which there are states but no real nations. The tragedy of the so-called Bush Doctrine was in the attempt to rebuild a “fissiparous” Iraq composed of Kurds, Sunni Arabs, and Shiites who “identify themselves in opposition to each other,” and who place tribal or sectarian loyalty first. Thus, an Iraqi national loyalty that could emerge would always remain under threat from these three primary identities.

Would that Scruton could have been the Bush whisperer both with regard to the Iraq and Afghanistan campaigns. Likewise, with regard to Syria, a nation many in our foreign policy elite now desire to reconstitute, Scruton underscores that the country has never been more than a collection of sects, ruled by the minority Alawites. The current civil war is really “a war between the sects, with Christians as the principal victims.” What, currently, is there for American forces to do with such a sectarian mess?

The Law of Bad Empires

In crucial respects, the United States would seem exempt from the transnational and multicultural troubles plaguing Europe as well as Scruton’s United Kingdom. America is a country with a powerfully shared identity rooted in its constitutional history and its devotion to the rule of law. And while we seem unable to upend the murky extralegal maneuverings of our administrative state, it is not for nothing that we endlessly discuss it and campaign against it. A new and more restricted settlement with regard to its public acts may very well be in the offing.

Scruton’s distinction between good and bad empires is in one sense the thread that could reinvigorate our extraconstitutional practice. A good empire features a ruling class devoted to the rule of law, but a law that permits and incorporates local forms and authorities across the empire. In this way, it allows the far-flung territories a real sense that they can see themselves in the empire and thus be devoted to it. But a bad empire aims to extinguish local authorities and legal usages and imposes an overarching law that constantly grows the center at the expense of the provinces and peripheral territories. And this, Scruton observes, is the essence of the European Union—a bad empire which, among many things, has twisted the meaning of subsidiarity to allow home rule only if Brussels deems the policy area insufficiently worthy of centralized rule-making. Brexit is a significant comeuppance to the Brussels ruling set, but how or whether it has changed their political calculations remains difficult to discern.

Has America become a bad empire? I ask not in terms of foreign policy, but in terms of judicial and regulatory authorities acting without regard for the deliberate consent of the people as it is given in self-governing bodies across the country. The costs to national loyalty appear to be high because such rule alienates our attachment to the country, as we sense that barely accountable governmental organs reject our political voice. Perhaps the reemergence of our local governing forms and authorities can come about only with the defeat of the rights culture that progressive individualism has put at the center of our law and understanding. Rather than understanding individualism to be an artifact of social order and the duties we have to that order, which also entail rights to protect it, the rights culture places the individual at the center, an individual whose only real obligation is to be true to himself. The praise of autonomy necessarily harms the relational and patriotic obligations that we have formed as a constitutional people, if only because such notions look superfluous to the new model citizen that has been and is being formed.

The boldest manifestation of this rule is fundamental rights jurisprudence, which sees the Constitution as a never-ending occasion for promiscuous rights deployment rather than a document that enshrines a framework for self-government. As such, the progressive individualism it proclaims as definitive of our constitutional order is nothing less than the attempt to dismiss the relational responsibilities and rights of self-government by grounding our Constitution on the unencumbered individual. This ahistorical being is said to possess rights apart from the only thing that can give them meaning: a durable community of citizens who, though strangers, devote themselves to one another’s care. But such devotion is fully activated only when the laws represent and uphold our deep intuitions and judgments about political membership and what constitutes honorable and dishonorable behavior in a community.

At such “moralizing” judgments the unencumbered individual can only snarl, seeing these as threats to an emancipated identity that has been justified by airy appeals to certain words in the Constitution. As Justice Anthony Kennedy proclaimed in Lawrence v. Texas, the word “liberty” in the Due Process Clause of the Fourteenth Amendment is an opportunity for the Court to define progressively in each age what is constitutionally protected conduct. Liberty grows, and we the people are not allowed to consent to what this might mean. Such emancipation has produced a sense of release for many Americans, loosening the inhibiting bonds of various communities and their claims upon citizens.

Scruton distinguishes between “individualism” as an artifact of bonded familial, social, and political communities and the individualism constructed to bring about liberation. The bad American empire projects the latter form of individualism, but it can only persist if the prior communities that ultimately shape us permit the law to undermine their existence. If we desire to live as citizens, rather than to be “administered,” it will require that our political nature reawaken, as it seems to be doing in America. But for this to happen in a way that will reconstitute our country, we must learn to give loyalty to the nation as binding our “togetherness in a shared land” and as “the way forward for all who would live as citizens.”

The individual constructed by a rights-based legal culture is ultimately apolitical in the deepest sense, and consequently unable to give life to a political community. His form is made by the turn inward, separate and apart from those practices and bonds that constitute any community. Thus the rights-constructed order allows individuals the authority to make endless claims on things, but no corresponding obligations. As Scruton notes, this alone explains its attractiveness, but also its political emptiness. There is a presentism in the autonomously made individual that finds it difficult to sacrifice on behalf of a greater collective “we.” A partnership of the dead, the living, and the unborn, which perpetuates the life of a social order, takes on for these individuals a sucker’s bargain. When the law neglects these deeper habits and allegiances, they will begin to fracture and fade. The authority of law depends on social cohesion that “affirms our patrimony” and “its legitimate claim for sacrifice,” and if such cohesion is no longer recognized in law, then democratic institutions will lose their ability to recruit our sentiments. This decline will prove to be the ultimate legacy of the debilitating individualism we now practice, unless our loyalty to America and its best institutions rallies our affections for a constitutional order that will engage our mutual responsibilities as well as our rights in self-government. In attempting such a civic revival, we don’t have a moment to spare.

This article originally appeared in American Affairs Volume I, Number 3 (Fall 2017): 92–108.

Notes