The Constitution and the Antagonist World

From Rights and Duties: Reflections on our Conservative Constitution, Spence Publishing Company, 1997. 

Once upon a time it was the assumption of most of the people in the world that the fundamental constitution of their society would endure to the end of time, or at least for a very great while, or certainly for the lifetime of those who recently had become adults. But events since 1914 have destroyed that expectation, mercilessly, in country upon country, culture after culture.

Whole peoples have been uprooted or transplanted, or perhaps extirpated; complex patterns of life have been devastated or totally supplanted; political systems have vanished almost without trace; classes have been effaced, ancient rights abolished, the cake of custom ground to powder. Constitutions written and unwritten have been subverted almost overnight by conventions of political fanatics, and innovating substitute constitutions in their turn have been expunged within a few years, making way for yet more novel political structures—no less evanescent. Even Britain has experienced much constitutional alterations during the past quarter of a century, especially in local government.

Among great powers, only the American Republic has not deliberately altered its general frame of government—neither the formal written Constitution of the United States nor the unwritten constitution that, in the phrase of Orestes Brownson, “is the real or actual constitution of the people as a state or sovereign community and constituting them such or such a state.” I say “deliberately,” implying that the American people, as represented in the Congress and in the state legislatures, have not approved very large changes in the political structure. Nor have they, as a people, endorsed large innovations in the complex of customs, conventions, and prescriptions that compose the unwritten constitution. It is true that several amendments to the federal Constitution have been ratified, but none of these, not even the two extending the franchise, greatly altered the general political structure. Many state constitutions have been revised, and of course technological, economic, demographic, and moral alterations outside the strictly political pattern have produced large social consequences. Nevertheless, the formal federal Constitution framed in 1787 still functions for the most part, and the large majority of American citizens still take for granted the mass of customs, conventions, mores, and social beliefs that amount to an unwritten constitution, and which generally are older than the written Constitution of 1787. In short, Americans have known no political revolution, either violent or accomplished without bloodshed, for two centuries; nor have we consciously swept away old ways of living in community so that we might conform to some brave new ideological design.

Americans stand politically strongly attached to old ways of managing public affairs, rejecting all proposals for thoroughgoing constitutional revision, holding inviolate documentary and even architectural symbols of the national experience. Probably the considerable majority of Americans today assume that our national constitutions will endure for time out of mind, that the political order, at least, which the present generation knows will be known also by their grandchildren and great-grandchildren, that in time past other nations may have fallen low even as Nineveh and Tyre, but that the United States of America, as a system of order and justice and freedom, is immutable.

This is a natural presumption, the power and prosperity of this nation in the closing years of the twentieth century considered. Not since 1814 has the continental United States had to repel foreign troops. There has not occurred a catastrophic interruption of domestic tranquility since 1865, and the American economy has become a cornucopia, with only infrequent, occasional, and partial interruptions of its bounty. How could this constitutional order ever come to an end?

Such, no doubt, were the sentiments of the inhabitants of the Roman empire near the end of the Antonine age, although already Marcus Aurelius had great difficulty in raising revenue sufficient to defend the northern frontiers and greater difficulty still in repelling, sword in hand, the barbarian hosts. Roman history no longer being taught in American schools, the public is unaware of such parallels. There are few readers of such studies as Freya Stark’s Rome on the Euphrates, which traces convincingly the fashion in which a great power decayed for lack of imagination.

In my seemingly complacent account of America’s conservative ways, then, I have omitted something important: the strong tendency of our courts of law, the Supreme Court of the United States in particular, to remold our political and social institutions nearer to the judges’ hearts’ desires. The courts, joined by the Congress, the state legislatures, and the executive branch, busily have conferred new rights, entitlements, and privileges upon large classes of citizens. New constitutional rights are discovered or proposed annually; next to nothing is said about constitutional duties. Most professors and publicists still appear to fancy that more emancipation from oldfangled moral restraints, not to mention more generous public largesse—so like the old Roman liturgies—would relieve us of worry and work. Yet just now we perhaps perceive a reaction against large scale constitutional alteration by a judicial aristocracy or council of elders—the Ephors of Washington.

But I lack time to cry O temporal O mores! adequately. Kipling’s lines must suffice, a single stanza:
On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: “The Wages of Sin is Death.”

No civilization endures forever; no national constitution can of itself sustain a people bent upon private pleasures, asking not what they can do for the country, but what the country can do for them. So I venture upon some speculations concerning the future of American politics—signifying by the word politics not partisan controversies, but constitutional establishments, custom and convention, political principles.

I speculate in the manner of Edmund Burke, at once the most imaginative and most practical of writers and doers in our political tradition of the English-speaking peoples: Burke, the philosopher in action. I do not mean that you and I can peer through dead men’s eyes. Rather, I am asking you to put on the mind of Burke with me, to look at the future of American politics as he looked at the future of European politics in his day—with wonderful prescience, as affairs turned out.

I choose Burke as our guide for this time travel because, in the words of Harold Laski, “Burke has endured as the permanent manual of political wisdom without which statesmen are as sailors on an uncharted sea.” Or, to quote Woodrow Wilson, “Burke makes as deep an impression upon our hearts as upon our minds. We are taken captive, not so much by his reasoning, strongly as that moves to its conquest, as by the generous warmth that steals out of him into our hearts.”

In his Reflections on the Revolution in France,his Appeal from the New to the Old Whigs, his Thoughts on the Present Discontents, and other writings and speeches, Burke has much to say about constitutions, the British Constitution in particular—though not one word, friendly or hostile, about the American Constitution of 1787. Very succinctly, though I hope not superficially, I offer you some observations of Burke upon healthy and unhealthy constitutions of government. We will confine ourselves to four of Burke’s constitutional arguments; then let us try to apply these reflections, so far as they are pertinent to our own age, to prospects for the constitution (in its larger sense) of the United States.

Burke’s first constitutional principle is that a good constitution grows out of the common experience of a people over a considerable elapse of time. It is not possible to create an improved constitution out of whole cloth. As he declared in his “Speech on the Reform of Representation” (1782), “I look with filial reverence on the constitution of my country, and never will cut it in pieces and put it into the kettle of any magician, in order to boil it, with the puddle of their compounds, into youth and vigor. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent’s breath.” An enduring constitution is the product of a nation’s struggles. . . .

A truth that Burke emphasizes almost equally with the preceding “organic” concept of constitutions is the necessity of religious faith to a constitutional order. “We know, and, what is better, we feel inwardly, that religion is the basis of civil society, and the source of all good, and of all comfort,” he writes in Reflections on the Revolution in France. “We know, and it is our pride to know, that man is by his constitution a religious animal; that atheism is against, not only our reason, but our instincts; and that it cannot prevail long.” An established church is required—parallel with “an established monarchy, an established aristocracy, and an established democracy…All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.” The first clause of the First Amendment to the Constitution, and the American circumstances which produced that clause—Burke’s “dissidence of dissent, and the Protestantism of the Protestant religion”—had forestalled any established national church in the United States, three years before Burke published his Reflections. But the First Amendment, and curious interpretations of its first clause by the Supreme Court in this century, leave us today in some perplexity.

I am asking you to put on the mind of Burke with me, to look at the future of American politics as he looked at the future of European politics in his day—with wonderful prescience, as affairs turned out.

A third point in Burke’s constitutional principles which needs to be noted here is his emphasis upon the function of a natural aristocracy, in which mingle both “men of actual virtue” (the “new” men of enterprising talents) and “men of presumptive virtue” (gentlemen of old families and adequate means). It is this aristocracy, “the cheap defense of nations,” that supplies a people’s leadership. (In a more grudging fashion, a similar apology for aristocracy is advanced by John Adams.) Burke asserts also the necessity for an “establishment of democracy”; he is the most practical eighteenth-century advocate, indeed, of popular government. Nevertheless, “A true natural aristocracy is not a separate interest in the state, or separable from it,” Burke writes in his Appeal from the New Whigs. “It is an essential integrant part of any large body rightly constituted.”

Fourth, Burke contends that the good constitution maintains a balance or tension between the claims of freedom and the claims of order. Natural law is a reality, and from natural law flow certain natural rights. But government does not exist merely to defend claims of personal liberty. The Rights of Man claimed by the French revolutionaries are impossible to realize, unlimited, in any civil social order. “By having a right to everything they want everything,” Burke writes in his Reflections:

“Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection…In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights.”

On no point of political theory in America does greater confusion exist than upon this question of “human rights” as set against the need for restraints upon will and appetite.

So much for four principles of constitutional order that recur in Burke’s speeches and writings over three decades. Let us now see how far the American constitution, both written and unwritten, accords with these principles, and how strongly prepared the American constitutional order may be to withstand powerful challenges in the dawning years.

May we apply these admonitions to the written Constitution of the United States in our present circumstances?

Consider first Burke’s conviction—well sustained by the painful experience of Europe after the two World Wars and by the emergent nations of Africa and Asia—that any sound national constitution must be the fruit of long experience, tried and tested, that “paper constitutions” are not worth the paper they have been written upon, and that sudden, sweeping, large scale alterations of an old constitution almost certainly must destroy its ancient virtues rather than lopping off its acquired vices. May we apply these admonitions to the written Constitution of the United States in our present circumstances?

There exists today no popular demand for abrogating the Constitution of 1787 in general and substituting some new fundamental law. But there do exist strong movements to make specific important changes in the Constitution—changes or amendments, however, the intention of which is to return interpretation of the Constitution to what was the common understanding or usage until recent decades. Thus the pressure for formal alteration of the Constitution is conservative, not innovative. The principal constitutional amendments proposed at present are designed to compel Congress to balance the federal budget, to make abortion unlawful (reversing Supreme Court decisions of recent years), to permit prayer in public schools (so reversing other Supreme Court decisions), to return to legislative bodies jurisdiction over the apportionment and boundaries of legislative districts (which until 1962 remained a “political question” outside the jurisdictions of federal courts). The popular movement is therefore not for striking down old constitutional provisions or interpretations, but for returning to precedents only very recently overthrown by federal judges. In short, there exists no clear and present danger of a discarding of the old Constitution by the people, by the Congress, or by the executive branch.

Innovative alteration of the Constitution has been the work, instead, of a majority of the justices of the Supreme Court within the past forty years, chiefly. Possessing powers not conferred upon the chief judicial body of any other country, the Supreme Court has made itself into a reforming council, politicized. The phrase “judicial usurpation,” nowadays employed by opponents of certain Supreme Court decisions, almost certainly would have been employed similarly by Burke in his time had the British judiciary then possessed authority sufficient to undo acts of Parliament—which of course the British judges did not have, and do not possess today. In his “Speech on the Economical Reform,” in 1780, Burke remarked that “the judges are, or ought to be, of a reserved and retired character, and wholly unconnected with the political world.” Twenty-two years ago, my friend C.P. Ives commented on this passage from Burke, “What Burke would have thought when justices of the highest court felt compelled to campaign, at least quasi­politically, in defense of their own prior decisions as judges, it is not hard to infer.”

A second constitutional convention could be called, but a second convention would possess arbitrary power to amend the old Constitution as the delegates might think fit or to sweep the Constitution altogether away, supplanting it by a new creation—which is precisely what the delegates to the Convention of 1787 did to the Articles of Confederation. Should a new convention be summoned, grandiose proposals for constitutional innovation might be put forward forcefully by persons and interests whose intellectual mentors would be not Edmund Burke or John Adams, but Jean-Jacques Rousseau or Jeremy Bentham, given to abstraction and levelling innovation. Sentimental egalitarianism on the one hand, dull utilitarianism on the other, might undo the prudent work of the Federalists, breaking that long continuity of law and political institutions that runs back beyond the beginning of American history. Thus men and women respectful of the established Constitution should bear in mind that a second national convention, even though brought about by a conservative impulse, might have radical consequences—of a populist cast, or of a centralizing cast, or of both afflictions blended.

Second, what of the religious basis of the American order? Joseph Story and James Kent, the great early commentators upon American constitutional law, pointed out that although America has no national establishment of religion, American laws and social institutions rest upon the moral postulates of the Christian religion. Sometimes, since the 1940s, the Supreme Court’s majority, and a good many other federal and state judges, have seemed to hold that religion of any sort is suspect and should be excluded from public life.

If the latter understanding prevails in the interpretation of the written Constitution and works changes in our unwritten constitution of custom and convention, then very grave consequences are liable to develop. One of them would be the steady increase of fraud and violent crime, not to be adequately held in check by police powers, for religious belief is sufficiently enfeebled in our time already, with ineluctable moral consequences, and disapprobation by the state would work yet more mischief. Another consequence would be an increased danger from virulent ideology of one sort or another, for ideology rushes in to fill the vacuum left by the decay of religion. In foreign affairs, the decline of Americans’ religious belief would mean an increase of the appeals of Marxism and of Marxist powers. A third consequence, intended to diminish the effects of the two afflictions just described, might be the systematic development of a “civil religion” of Americanism, a kind of Americanist ideology built of bricks from the yard of John Dewey and his disciples—dull, unimaginative, materialistic, and in the long run destined to ignominious failure.

In a time when telephone companies look forward to profits to be made from “dial-a-porn” services (within federal regulations, of course), and when all the police powers of federal and state and local governments do not suffice to put down an enormous traffic in narcotics, some freethinking spirits may begin to apprehend the truth in Burke’s declaration that the state is built upon religious consensus. If we inquire whether the constitutions of government in the United States will endure a hundred years from now, the speculative answer must depend in no small part on whether there still will subsist, a century from now, widespread belief in a transcendent order. It may not be in the power of the political authority to renew the religious understanding, but at least the political authority can refrain from accelerating the decay of religious learning.

Third, what are we doing in America to develop people of virtue and wisdom sufficient to lead the democracy and sustain our old constitutional order of justice and freedom? The alternative to an aristocracy (the leadership of the best in the public interest) is an oligarchy (the leadership of the rich in their own interest). It is inane merely to chant, with Carl Sandburg, “The People, yes!” A people deprived of honest, able, and imaginative leadership will come to ruin.

The popular and journalistic response, in 1983, to the United States Commission on Excellence in Education did hearten some of us, for temporarily it overcame the educationists’ denunciations of “elitism” and showed that a considerable part of the public has become aware of our American failure to develop right reason and moral imagination, scientific understanding and political knowledge, among the rising generation; our failure to provide, if you will, sufficient opportunity for the healthful growth of a natural aristocracy, which is essential to the survival of a democracy. But the administration of proposed educational reforms has fallen back into the hands of the very foundation bureaucrats, accrediting agencies, departments of public instruction, pillars of the National Education Association, and all those dull dogs of Holy Educationism who prate endlessly of “equity” (meaning enforced educational mediocrity) and shudder internally at the mention of “excellence” (which would eliminate the oligarchs of the educationist empire, should excellence actually be achieved). We may make some improvements in schooling at every level, but they will be small ameliorations, as matters drift at present.

The principal purpose of what has been called liberal education was to develop a considerable body of young people who would become molders of public opinion and leaders of community—the natural aristocracy, which is something different from the “meritocracy” and specialized elite that grow up in the twentieth-century welfare state.

But how much truly liberal education do we undertake nowadays? We still go through the motions—and then a large proportion of young people who have been endowed with the degree of bachelor of arts go on to work toward the degree of M.B.A., as if liberal learning were irrelevant to the real world. What we require more urgently than we do routine business skills is young men and women of courage and imagination, who know that life is for something more than consumption.

The Constitution is not sustained by intellectual mediocrity, obsession with creature comforts, and “four legs good, two legs bad” praise of an abstract democracy. If we neglect the talents of the ablest of the rising generation, we are left in the long run with what Tocqueville called democratic despotism—a regime of stagnation and dull uniformity—if not with something still worse than that.

Finally, it is even truer today than it was in Burke’s time that those who begin by claiming everything will end with nothing at all—not even a Republic. An effectual “welfare rights” lobby piles up incredible federal deficits and national debts, as if wealth were a mere matter of printing presses and new debt ceilings. Presently such claims of entitlements make it difficult to maintain the common defense. The Bill of Rights is invoked as if it really were a suicide pact—from those who would defend to the death the inalienable right of a mugger to buy a “Saturday night special,” to those humanitarians who insist that even imminent peril to public health must not be permitted to impede exercise of the inalienable right to engage in sexual perversions.

Great states with good constitutions develop when most people think of their duties and restrain their appetites. Great states sink toward their dissolution when most people think of their privileges and indulge their appetites freely. This rule is as true of democracies as it is of autocracies. And no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention, affirms an enduring moral order of obligation and personal responsibility.

The ruin or the recovery of America’s constitutions, and the general future of American politics, will be determined more by choices than by circumstances. Here I have done no more than to suggest what some of those choices must be. “Not to lose ourselves in the infinite void of the conjectural world,” Burke wrote near the end of his life in the First Letter of the Regicide Peace, “our business is with what is likely to be affected for the better or the worse by the wisdom or weakness of our plans.” To shape the American political future through prudent and courageous choices is yet within the realm of possibility. “I despair neither of the public fortune nor of the public mind,” Burke continued. “There is much to be done undoubtedly, and much to be retrieved. We must walk in new ways, or we can never encounter our enemy in his devious march. We are not at an end of our struggle, nor near it. Let us not deceive ourselves; we are at the beginning of great troubles.”

As it was with Britain in the closing years of the eighteenth century, so is it with America in the closing years of the twentieth. As did the British then, we confront an armed doctrine and are divided in our own counsels. And yet our own general complacency scarcely is shaken: most of us behave as if nothing very disagreeable ever could happen to the Constitution of the United States, and as if the political future of this nation would be a mere alternation of Republican and Democratic presidential victories, somewhat less interesting than professional baseball and football.

And no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention, affirms an enduring moral order of obligation and personal responsibility.

The crash of empires and the collapse of constitutions have blinded and deafened most of the world since 1914. Only American territories and American laws have stood little touched amidst the general ruin. It is not accident that will preserve them for posterity. Of those Americans who dabble in politics at all, many think of such activities chiefly as a game, membership on a team, with minor prizes to be passed out after the latest victory. Yet a few men and women, like Burke, engage in politics not because they love the game, but because they know that the alternative to a politics of elevation is a politics of degradation. Let us try to be of their number.

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