Thirty years ago, US liberal democracy declared itself immortal. Today, it is gasping for breath. Francis Fukuyama’s End of History (1992) promised final triumph; Patrick Deneen’s Why Liberalism Failed (2018) reads like a funeral sermon. That swing—from paean to elegy – demands that we examine Deneen’s autopsy and ask what holds true.
For Deneen, liberalism is the ‘new science of politics’ carried to its fullest expression in America. In the eighteenth century, the Founders designed a state that would take no stand on the good life but instead erect a neutral scaffolding of rights, within which each individual – autonomous, rational, and choosing – might pursue happiness as they pleased. Such a framework promised harmony by steering citizens away from the violent quarrels of an overtly religious public life back in Europe to the safer realms of private life. But the promises have collapsed. Americans are left isolated, polarised, and distrustful. For Deneen, the culprit is our founding political philosophy, which has failed not by betraying itself, but by realising itself. In refusing to articulate any shared moral goods, liberalism corrodes the solidarity without which a republic cannot stand.
If Deneen were simply critiquing liberal theory – John Locke’s natural rights, John Stuart Mill’s liberty, Immanuel Kant’s autonomy, and John Rawls’s justice as fairness – he might be correct. But Deneen goes further, applying his criticisms to American liberal practice. The Founders, in building the American regime, did not simply enact liberal theoretic precepts. They were very much alive to the tension – which Deneen gestures at – that liberal theory does not attend to: citizens must be, on the one hand, free to pursue individual conceptions of the good (solitude), yet on the other, embedded in a common life that both cultivates the virtues that self-government requires and attaches those citizens to the political community (solidarity). The Founders offer distinctively American innovations in liberal practice – most importantly federalism – that do not figure into Anglo-American liberal theory and so are neglected by Deneen.
President John Adams, reflecting on the original Thirteen Colonies, observed that their variety of religions, nations, customs, and manners, coupled with their limited intercourse and imperfect knowledge of each other, made the problem of American unity ‘a singular example in the history of mankind’. Could quarrelsome pluralism be harnessed into a united republic? Some, like the Antifederalists, thought no. The Antifederalist Brutus, in classical republican fashion, argues that in such a country, ‘there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other’. For the Antifederalists, only a small, morally homogeneous people could trust one another enough to rule and be ruled in turn. Diversity would corrode civic virtue until self-government itself collapsed.
In Federalist 10, James Madison retorts with liberal glee. For Madison, the biggest danger was a majority faction oppressing a minority. The remedy, Madison says, was not to cultivate virtue but to enlarge the republic: to ‘make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult . . . to act in unison with each other’. Diversity is not a problem but a solution.
Madison here is clever, but he ignores the most important concern of the Antifederalists. The large and diverse republic excels at preventing domination but is reticent about the substantive moral goods that citizens ought to share. So, in Federalist 55, Madison moderates his argument. He concedes that republican government ‘presupposes the existence of [virtue] in a higher degree than any other form’. Prudence, moderation, courage, wisdom, public-spiritedness—these were the very virtues that American liberalism would depend on but, at a large national scale, did not seem capable of generating.
The Founders faced an apparent either-or: a large, diverse republic or many small, homogeneous ones. Their answer was yes-and: federalism. National powers would be ‘few and defined’, focused on war, peace, and foreign affairs; state powers ‘numerous and indefinite’, encompassing most of daily life. The federalist logic would, paradoxically, enable unity through division. The national government would be more liberal, protecting individuals from rights violations. The state governments would be more republican, taking up the role of substantive moral and civic formation. Contentious moral questions would be fought out in statehouses, where people knew each other better and consensus was more plausible, rather than in Washington, where thin majorities would paralyse politics by trying to force one solution on the whole Union. To send an issue to the states would not be to trivialise it, but to recognise just how difficult it is to settle the same way for all people, and to protect the principle of self-government by bringing that debate closer to the people.
That Americans today rarely think in federalist terms shows how thoroughly nationalised our politics has become. National debates, by their scale, are abstract and symbolic—reducing statesmen to celebrities and citizens to spectators, mobilising passions without building judgement. At the local level, however, citizens must look one another in the eye, negotiate compromises, and shoulder consequences together. Alexis de Tocqueville, the most famous observer of American democracy, called Americans’ preternatural tendency for banding together to address public problems ‘the mother of science’ in 1830s America. Parents fighting over curricula in school gyms, congregations debating budgets at length—these were the crucibles of civic virtue now hollowed out by centralised politics. What remains is a politics at once totalising and thin: perpetually contentious, yet incapable of forming character or friendship.
A revival of federalism, then, would be an essential first step to building solidarity while respecting solitude in our political practice. But first, people’s hesitations around federalism must be addressed. Most widespread is the criticism that federalism is procedural and morally empty; when asked a question of right or wrong, it strategically shrugs—I’ll let you decide! If something is unjust, it cannot be just in the next state over. Federalism, in this telling, is not rational or consistent.
Slavery is the defining example. It was Senator Stephen Douglas who famously shrouded his neither-pro-nor-anti-slavery argument in the language of an ambivalent federalism, or ‘popular sovereignty’, asserting that states and territories should be able to decide for themselves whether to be slave or free. But slavery is a particular kind of issue, so at odds with human equality – the fundamental principle of the Union – that tolerating it in some jurisdictions destroyed the coherence of the entire project. A house divided against itself, in truth, cannot stand, and federalism reaches its limit.
But for those most uncomfortable with federalism, the temptation has been to treat every controversy like it involves fundamental Constitutional rights. This treatment would demand uniformity at the national level, either through judicial activism or legislation passed narrowly by taking down supermajority requirements. Anything less is a betrayal of political convictions, an unacceptable compromise on matters of ‘basic human rights’.
Such an approach is understandable. But endemic to free politics is disagreement over what constitutes ‘basic human rights’. For many matters, there are not silent national majorities whose views are just waiting to be represented; large and durable majorities do not yet exist, and they will have to be built through the difficult work of persuasion. Federalism is not relativism or spinelessness but the necessity of living in a free and diverse liberal democracy: some matters must bind everywhere, like the abolition of slavery, while others can afford to be governed differently. The Declaration of Independence (1776) captures this notion in a subtle way:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Natural rights are real, but they are secured only through consent. Detached from consent, rights cannot be derived justly; detached from rights, consent degenerates into whim. The founders understood that both dangers were real, and so rights must be rooted in political soil, worked out among citizens.
None of this denies that some rights must bind everywhere. The Bill of Rights and Civil War amendments to the Constitution enshrine principles so fundamental that no state may gainsay them, and the Supreme Court should ensure as much. But if every political dispute is treated as a matter of these rights, federalist self-government, and its attendant solidarities, vanishes. Whether or not one prefers the progressive policy holdings in Roe v. Wade or Obergefell v. Hodges—the rulings that established constitutional rights to abortion and same-sex marriage, respectively—the Court struck down laws enacted by democratic majorities in the states. The live debate around the controversial political questions were removed from the work of federalist public deliberation and settled from above, nationally, by nine lawyers.
The Court did not see themselves as substituting their preferences for the public. They believed they were acting neutrally – in the spirit of liberal theory – by extending more rights to more people. If an individual does not want an abortion or a gay marriage, they can just refrain from getting one! But this neutrality is a lie. These verdicts offer decisive, nonneutral answers to heated political and moral questions. For Roe, when does a human being acquire a right to life, and therefore cannot be justly terminated? For Obergefell, is marriage as a public good defined by procreation, and therefore justly denied to same-sex couples, or defined by love and commitment, and so denied unjustly?
Roe and Obergefell very well may have been decided correctly, and, as precedent with serious reliance interests, should be left standing. But we should be extremely careful about settling difficult questions using the Court in the future. Political verdicts that arrive without persuasion are problematic. They breed resentment and populist backlash. They contribute to people’s sense that a government very much unlike them is enforcing its views top-down without bothering to convince them bottom-up. Disagreements, however ultimate they feel, must be worked out through the discipline of federalist politics, through persuasion, coalition, and compromise in state legislatures—a path that is slower and less satisfying than a Court decision, but yields settlements citizens can truly own.
More fundamentally, though, to keep believing that the only goal of our politics is to maximise individual freedom while trampling on communal freedom – the freedom of communities to govern themselves – is to keep deciding in favour of solitude and against solidarity. Brad Littlejohn, a fellow of the Ethics and Public Policy Center, points to an often unnoticed fact: Many Americans, conservatives and progressives included, ‘have no problem advocating a role for government in pushing society towards what they consider a more just and virtuous order, and in excluding . . . views and actions that are seen as hostile to that order’. Progressives might want stricter Title IX and civil rights enforcement; conservatives might want tighter school curriculum oversight and abortion restrictions. Federalism, rightly understood, provides a stage for these sorts of contested goods to be pursued without collapsing the Union, especially at a time when it feels like both sides do not have the skills, or numbers, to pursue them at the national level.
In the end, the critics who charge American liberalism with failing to sustain substantive moral community are correct in a sense. Our federalist practice, and the solidarity it enables, has fallen by the wayside. Yet if practised properly, federalism could secure a basic measure of rights across the Union while sustaining a plurality of communal ways of life – experimental and time-tested, popular and minority – in different corners of the republic.
Tocqueville noted that democratic citizens often dismiss inherited forms like federalism as arbitrary. Forgetfulness liberates, but it also tempts us towards pride – to believe we are unbound by history. In truth, we are heirs before we are inventors. Our institutions are imperfect, but they are also gifts: reminders of our limits, and of the need to govern humbly, together.