Meditations of a Militant Moderate

Guest Blogger

Jack Balkin has invited his colleagues to weigh in on Balkinization, and I hope to do so in the future. For now, he is allowing me to engage in the following bit of shameless promotion for my new book, Meditations of a Militant Moderate: Cool Views on Hot Topics (Rowman & Littlefield 2005), which is a collection of short essays (averaging around 2000 words) on a wide variety of subjects: affirmative action; Owen Fiss's flawed theory of groups and equal protection; the incoherence of Cornell West; slavery reparations; housing integration; the Pledge of Allegiance; school vouchers; military recruitment on campus; groups and expressive speech; professors and the profession; class actions; punitive damages; lying in law; civil juries; impact litigation; gun control litigation; tort reform; surrogate motherhood; preemptive strikes and Iraq; etho-racial profiling; victim compensation; the 9/11 Victims Compensation Fund; a model for adjudicating terrorism; immigration; refugee protection; reforming the 1996 immigration law; citizenship after 9/11; immigrant voting; developing giants (China and India); rethinking liberalism (written just after the 1980 election of Reagan); the virtues of diversity; punctilios for a diverse society; incivility; and the 2004 elections.

So what is a militant moderate? Damned if I know * but I think that I am one. Here is my short answer in the preface to the book:

Preface: Why I Am a Militant Moderate

Barry Goldwater was wrong: Extremism in the pursuit of liberty * even liberty -- is indeed a vice, and moderation in its pursuit is truly a virtue. I have written these essays for those readers who lack Goldwater's strident certitude * about what liberty is, how it can best be attained, and which other values must be sacrificed to attain it.

What does it mean to be a militant moderate, and why do I think that it is a good thing to be? These are important questions and thus the answers are not at all obvious. At first blush, one might even think that militant moderate is an oxymoron. When we think of militants, after all, we may conjure terrorists in Iraq, Crusader armies pillaging the Holy Land, or dead-enders holed up in Waco and Ruby Ridge. These are not pleasant images, much less icons of reasonableness. And Goldwater's motto remind us that moderation has no intrinsic merit; its value depends on what it is being moderate about. But I find no inherent contradiction in being a militant moderate. Moderation refers to an orientation to a substantive issue relative to other orientations to that issue, while militancy denotes a high level of conviction about that position and a willingness to act on it.

So much for definitions. Now let us set aside militancy for a moment and consider why one might want to be a moderate in the first place. Some reasons are not particularly admirable. We all know complaisant people who are prepared to pay almost any price in order to avoid offense or controversy. Some insipid politicians seek compromise, any compromise, for its own sake. Somewhat less contemptible are those who believe that (or act as if) the truth of any matter is always located in the middle of the space between contending positions. These people are blind to certain stubborn realities: that radical evil and heroic goodness exists, that some extreme positions are actually correct, and that even incorrect extremes can exert salutary pressures on status quos resting on little more than political inertia and embedded injustice.

But not all reasons for being a moderate are misguided. Approximately 2500 years ago, the Greek philosopher Aristotle offered the (literally) classic defense of moderation, arguing that the nobility of individual character depends on achieving a middle point between the antipodal excesses of human conduct and feeling to which humans are inclined. For Aristotle, cowardice and rashness are vices but courage is a virtue. Surliness and flattery are vices, friendliness a virtue. Moderate temperament and disposition, in this view, are constitutive not only of private morality but of civic virtue and social health.

Aristotle's theory of the golden mean was intended to cultivate the character needed by a good society and polity. While sharing this goal, I embrace moderation for a somewhat different reason: the design of sound public policy requires it even (perhaps especially) when Aristotelian virtue is in short supply. Whether the issue is foreign relations, the war on terrorism, health care, tort reform, illegal immigration, tax simplification, Social Security, homelessness, AIDS, or deficit reduction, policymakers and ordinary citizens alike stumble in the dark, groping their way through what seems like crisis after crisis. In this daunting policy milieu, neither the simple ideology nor the simple morality of those on either end of the political spectrum provides much useful guidance for the hard work of social problem-solving. Ideology lacks the suppleness needed to apprehend and act on complicated, changing social facts, and morality in such matters almost always cuts in more than one direction. Ideology and morality may provide useful starting points for the pursuit of policy solutions, but the roads they mark quickly run out when they enter the morass of political and social complexity and conflict.

This morass, of course, is the best argument for incrementalism, one of moderation's vital techniques. If we are uncertain about where to go or how to get there but know that we are in quicksand, we are well-advised to take small steps until reaching terra firma. But although incrementalism is very common, it is not exciting; it seldom makes the heart race or the spirit soar. And this timidity puts it at a severe political disadvantage. Americans are drawn, perhaps preternaturally, to novelty, boldness, self-confidence, and decisiveness. Politicians naturally try to exemplify these appealing traits. So do businesses seeking capital, scientists stalking research grants, and policy entrepreneurs looking for political openings. Indeed, all who yearn to make a big splash and be noticed tend to use a marketing style that features extreme but unsustainable claims of novelty and certainty. At this rhetorical dance, moderation is usually a wallflower.

Yet most really new policy ideas are, alas, bad ones. This statement is neither cynical, churlish, nor reflexively conservative. Consider that the same policy problems, more or less, have been around for a very long time * at least since the advent of the modern administrative state in the New Deal and especially with its vast expansion during the 1960s. Unlike scientists and engineers who often discover new facts and techniques enabling them to solve problems with large social payoffs, public policymakers must work with a limited set of familiar tools. Most plausible policy ideas are not really new; they have been proposed and debated before in some form or were already tried somewhere and found wanting. They are old wine in new bottles.

Indeed, if a policy idea is truly new, there is a good chance that it will be politically or administratively unworkable. Even policy ideas that are attractive in principle are often unsound, sometimes even disastrous, in practice. As numerous case studies demonstrate, implementation of a new idea in a complex, political, and decentralized policy environment inevitably produces many unforeseen consequences, some of which may perversely undermine the policy's goals. In this environment, even the most astute policymaker cannot predict most of what will actually happen once the policy is actually operating in the field. She comprehends few of the numerous implementation-relevant variables and exercises effective control over fewer still.

The hard realities of implementation mean that even creative policymakers are well advised to proceed with extreme caution. They do best not by instituting large, synoptic change in a single stroke but by muddling through. This fact, which only the most unregenerate ideologue will deny, is reason enough to turn even innovative and reformist policymakers into moderates * and it should do the same to the rest of us. We moderates should grow more militant as we recognize that every policy implementation failure today dims the prospects for genuine reform tomorrow.

The social value of militant moderates is also underscored by the 2004 elections. As both parties conspicuously played to their closed-minded, dug-in extremes, the broad mainstream of opinion -- Schlesinger's "vital center" -- received less attention and representation than it should have. As I explain in the final essay, the voters are more centrist on the issues than the politicians and the mass media pundits are, and this gap, which is worrisome for our democracy, can and must be remedied. Americans deserve better from their public intellectuals than axe-grinding, score-settling, and smug certitudes. The bitterness on all sides of the election testifies to our desperate need for calming, thoughtful, trustworthy interlocutors who understand complexity, respect diverse values, want to solve real problems, and (as Learned Hand put it) are not too sure that they are right.

The 37 essays (and one poem) that follow are written in this pragmatic, reformist, non-ideological, empirically-minded spirit.