Conserving Order, Justice, and Freedom

This essay originated as a lecture at the Heritage Foundation in 1987 and was later published in a collection titled Rights and Duties (Spence Publishing Company, 1997).

IN THE SPRING OF 1789, with the inauguration of President Washington and Vice President Adams, the federal government commenced to function under the Constitution of the United States. That Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed. And most of the time, during the two centuries since George Washington took his oath of office, the Constitution has succeeded as a restraint upon arbitrary power, rash innovation, and what Tocqueville called “the tyranny of the majority.” In short, the American nation has prospered under a conservative constitution.

First, some words of definition. What is meant by this term con­stitution? In politics, constitution signifies a system of fundamental institutions and principles, a body of basic laws, for the governing of a commonwealth. It is a design for permanent political order.

Every society develops a constitution of some sort. For without a regular pattern of basic law, a people could not live together in peace. Lacking a tolerable constitution, they never would know personal safety or protection of their property or the love of neighbor. Even savage tribes may be said to be governed by simple constitutions, expressed in custom and convention.

The Constitution of the United States was and is rooted in the experience and the thought of earlier times—which is a major reason why the American Constitution has not perished or been supplanted by some different political system. No civilization could survive for a great while if somehow its political constitution should be swept away and no tolerable new constitution substituted. Deeply rooted, like some immense tree, the American Constitution grew out of a century and a half of civil social order in North America and more than seven centuries of British experience.

The general public thinks of a constitution as a written document. But actually constitutions may be wholly or partially unwritten—that is, not comprehended in a single document, but instead made up of old customs, conventions, charters, statutes, and habits of thought. The British Constitution, ill understood by most Americans, is the principal surviving example of this sort. And even the Constitution of the United States is not wholly set down on paper.

For it has been said that every country possesses two constitutions, existing side by side, yet distinct. One of those two is the formal written constitution of modern times; the other constitution is the old “unwrit­ten” one of political compromises, conventions, habits, and ways of living together that have developed among a people over the centuries. Thus, for instance, certain important features of America’s national political structure are not even mentioned in our written Constitution. What does the written Constitution of the United States say about political parties? Nothing; yet political parties direct the course of our national affairs. What does our written Constitution say about the president’s cabinet, with its secretaries of state, treasury, agriculture, defense, education, and the like? Next to nothing; yet the executive branch of the federal government could not function without that cabinet. What does our Constitution say about presidential primary elections, nowadays the principal means for nominating candidates for the presidential office? Nothing whatsoever; yet the primaries have quite supplanted the method of selecting presidents intended by the Constitution’s Framers.

The aim of a good constitution is to achieve in a society a high degree of political harmony, so that order and justice and freedom may be maintained. No commonwealth ever has attained perfect order, justice, and freedom for everybody, and the Framers did not expect to achieve perfection of human nature or government. Yet they did expect “to form a more perfect union” and to exceed other nations of their time, and of earlier eras, in establishing a good political order.

Over the centuries, political constitutions have come into existence in a variety of ways. They may be decreed by a king or an emperor; they may be proclaimed by some conqueror or tyrant; they may be given to a people by religious prophets, as Moses gave laws to the wandering Israelites; they may be designed by a single wise man, as Solon gave the Athenians a new constitution early in the sixth century before Christ; they may grow out of the decisions of judges and popular custom, as did the English common law; they may be agreed upon by a convention. Those constitutions which have been accepted willingly by the leaders of a people generally have been the constitutions that have endured for a tolerable length of time.

But humankind being restless and quarrelsome, and because for the past three centuries the conditions of society have altered mightily in many countries, few constitutions have lasted a great many years. Nearly all the national constitutions that were promulgated in Europe after the First World War had collapsed by the end of the Second World War, if not earlier; most of the new constitutions proclaimed in Europe, Asia, and Africa not long after the Second World War already have been tossed aside or else do not really function. The elaborate constitution of the old Soviet Union was ignored in practice from the time it was drawn up.

For it has been said that every country possesses two constitutions, existing side by side, yet distinct. One of those two is the formal written constitution of modern times; the other constitution is the old “unwrit­ten” one of political compromises, conventions, habits, and ways of living together that have developed among a people over the centuries.

Of those constitutions which have endured for some generations or some centuries—the British Constitution being the most venerable of these—all have changed somewhat with the passage of time, neces­sarily. Yet enduring constitutions contain provisions and assumptions which are permanent, preserving a society’s continuity through many generations. The spirit of such a constitution resists the tooth of time. Such has been the Constitution of the United States.

So much by way of succinct definitions. We turn to the question of the Constitution’s conservatism.

In the sense that all constitutions are formed with the purpose of maintaining some sort of political order—or at least in that pretense—all constitutions are conservative. But the Constitution of the United States, over two centuries old, is especially and deliberately conservative of a social inheritance. This truth has been commented upon by several eminent observers from abroad.

Less than half a century after the Constitutional Convention of 1787, Alexis de Tocqueville described the United States Constitution as a work of political wisdom uniquely successful in maintaining in a healthy tension the claims of central authority and the claims of state and local freedom. He found in the Constitution restraints upon the egalitarian impulse, helping to preserve America from what he called “democratic despotism.” In his lengthy analysis of the Constitution’s articles, Tocqueville indeed points to several grave flaws, especially the possibility of presidential re-elections, with consequent dangers. But in general Tocqueville heartily approves the Constitution as a strong means for maintaining liberty under law—a device very different from the several French constitutions that had arisen and fallen in his own lifetime.

Throughout the first half of the nineteenth century, European and British observers often remarked with a degree of wonder the stability of the Americans’ constitutional structure, in contrast with the upheavals of 1830 and 1848 in Europe, and even in Britain the violence that preceded the Reform Bill of 1832 and the Chartist riots. But the approbation had some strong exceptions, notably that of Thomas Babington Macaulay. In 1857, old Lord Macaulay wrote to Henry S. Randall, the American biographer of Thomas Jefferson, that Jeffer­sonianism would bring about the ruin of the American Republic. The paper Constitution would be of no avail in an hour of social crisis. America, unlike Britain, having no ruling class of educated and propertied gentlemen accustomed to command and to restrain popular appetites, had no body of customs and usages that could allay popular discontent. This passage from Macaulay’s letter is well known:

It is quite plain that your government will never be able to restrain a distressed and discontented majority. For with you the majority is the government, and has the rich, who are always a minority, absolutely at its mercy. The day will come when, in the State of New York, a multitude of people, none of whom has had more than half a breakfast, or expects to have more than half a dinner, will choose a Legislature. Is it possible to doubt what sort of a Legislature will be chosen? On one side is a statesman preaching patience, respect for vested rights, strict observance of public faith. On the other is a demagogue ranting about the tyranny of capi­talists and usurers, and asking why anybody should be permitted to drink Champagne and to ride in a carriage, while thousands of honest folk are in want of necessities. Which of the two candi­dates is likely to be preferred by a working man who hears his children cry for more bread? I seriously apprehend that you will, in some such season of adversity as I have described, do things which will prevent prosperity from returning; that you will act like people who should in a year of scarcity, devour all the seed corn, and thus make the next year, not of scarcity, but of absolute famine. There will be, I fear, spoliation. The spoliation will increase the distress. The distress will produce fresh spoliation. There is nothing to stop you. Your Constitution is all sail and no anchor. As I said before, when a society has entered on this downward progress, either civilization or liberty must perish. Either some Caesar or Napoleon will seize the reins of government with a strong hand, or your republic will be as fearfully plundered and laid waste by barbarians in the twentieth century as the Roman Empire was in the fifth—with this difference, that the Huns and Vandals who ravaged the Roman Empire came from without, and that your Huns and Vandals will have been engendered within your own country by your own institutions.¹

What Macaulay predicted has not yet come to pass—although we have now in America a genuine proletariat of the sort Macaulay dreaded, though that proletariat as yet is a minority in any state. Is the American Constitution indeed “all sail and no anchor”? Four years after Macaulay wrote to Randall, the Union fell apart and the Constitu­tion, in effect, was suspended for four years. Yet whatever the weak­nesses of the Constitution, and by whatever favorable circumstances it has been assisted, still it has endured as a conservative power when every other country’s written constitution has been discarded or else revised out of recognition. It has been altered far less, over the gen­erations, than has the British Constitution. Much that Macaulay thought essential to the Constitution of England has been effaced. While the American Constitution, despite its Reconstruction Amend­ments, despite grand changes by decisions of the Supreme Court, remains long after Macaulay’s warning a barrier to radical alteration of American society.

By 1885, when Sir Henry Maine published Popular Government, it had become clear enough that the Constitution of the United States was more of a conservative power than the British Constitution had become. The august historical jurist allotted a fourth of his book to an examination of the American Constitution, and as Sir Ernest Barker remarked half a century later, for Maine it was ex America lux.

In Britain, by 1885, thoughtful men had taken alarm at the dis­semination of socialist ideas. The total exclusion of king or queen from politics, the diminishing of the authority of the House of Lords, the admitting to the franchise of most workingmen, the fact (first made plain by Walter Bagehot) that in effect Britain was now governed by a committee of the House of Commons called the cabinet—these and other large alterations in the old British Constitution had opened the way for the radical egalitarians. Separation of powers no longer pre­vailed in Britain: the House of Commons was supreme, judicial restraint upon Parliament never had existed, and altogether the British Con­stitution in the closing decades of the nineteenth century had lost many of the features that Montesquieu had praised at the middle of the eighteenth century.

“The Federal Constitution has survived the mockery of itself in France and in Spanish America,” Maine wrote. The American Con­stitution’s success, he went on, has been “great and striking.”² Especially Maine emphasized the conservative function of the Supreme Court, the indirect creation of Montesquieu, but also founded in part on English methods of adjudication.

Constitutional protections of property and contract, reinforced by Supreme Court rulings, are praised by Maine:

I have seen the rule which denies to the several States the power to make any laws impairing the obligations of contracts criticized as if it were a mere politico-economical flourish, but in point of fact there is no more important provision in the whole Con­stitution. Its principle was much extended by a decision of the Supreme Court [Dartmouth College v. Woodward, 1819] which ought now to interest a large number of Englishmen, since it is the basis of the credit of many of the great American Railway Incorporations. But it is this prohibition which in reality secured full play to the economical forces by which the achievement of cultivating the soil of the North American Continent has been performed; it is the bulwark of American individualism against democratic impatience and Socialistic fantasy.³

Maine’s analysis of the root assumptions behind the American Constitution, and of the British origins of American constitutionalism, are as valid today as they were in 1885, three years before Maine’s death. No one ever understood The Federalist better than did Maine; and no writer better explains the Constitution’s conservative functions. His concluding sentences must suffice us here:

When the American Constitution was framed, there was no such sacredness to be expected for it as before 1789 was supposed to attach to all parts of the British Constitution. There was every prospect of political mobility, if not of political disorder. The signal success of the Constitution of the United States in stem­ming these tendencies is, no doubt, owing in part to the great portion of the British institutions which were preserved in it; but it is also attributable to the sagacity with which the American statesmen filled up the interstices left by the inapplicability of certain of the then existing British institutions to the emancipated colonies. This sagacity stands out in every part of The Federalist, and it may be tracked in every page of subsequent American history.⁴

Three years after the publication of Popular Government, James Bryce, British ambassador to the United States from 1907 to 1913, brought out the first edition of his famous two volumes entitled The American Commonwealth, which were to pass through many editions and printings. In Bryce’s chapters one encounters the fullest recogni­tion of the conservative character of the American Constitution. The passages I shall quote here are from the edition of 1919.

Bryce describes two general types of constitutions, the “Flexible” and the “Rigid.” England’s constitution is flexible: “The Constitution of England is constantly changing, for as the legislature, in the ordinary exercise of its powers, frequently passes enactments which affect the methods of government and the political rights of the citizens, there is no certainty that what is called the Constitution will stand the same at the end of a given session of Parliament as it stood at the beginning.”⁵ As Bryce points out, the first statesman clearly to understand this point was James Wilson, one of the principal framers of the Constitution of the United States. During the Pennsylvania debates on ratification of the Constitution drawn up in 1787, Wilson emphasized that the British Constitution existed wholly at the will of Parliament:

The idea of a constitution limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are at least no traces of practice conformable to such a principle. The British Constitution is just what the British Parliament pleases. When the Parliament transferred legislative authority to Henry VIII, the act transferring could not, in the strict acceptation of the term, be called unconstitutional. To control the powers and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American States.⁶

In a public lecture at the University of St. Andrews in Scotland, comparing the British and the American constitutions, I touched upon this somewhat perilous flexibility of positive law in the United King­dom: even the greatest statutes and charters would not be proof against a radical and reckless majority in the House of Commons today. I found that my British auditors were painfully aware, most of them, of this clear and present danger to the British Constitution. The shift of fifty or sixty seats in a general election might conceivably bring about “nationalization” of the land, abolition of the famous boarding schools, and the ruin of the British economy, not to mention other permanent damage to the rule of law in Britain.

But let us turn from the flexible constitution of Britain to the rigid constitution of the United States—for so Bryce styles the American Constitution, declaring that “As the English Constitution is the best modern instance of the flexible type, so is the American of the rigid type.”⁷  In countries with rigid constitutions, Bryce tells us,

the laws and rules which prescribe the nature, powers, and functions of the government are contained in a document or documents emanating from an authority superior to that of the legislature. This authority may be a monarch who has octroyé a charter alterable by himself only. Or it may be the whole people voting at the polls; or it may be a special assembly, or combination of assemblies, appointed ad hoc. In any case we find in such countries a law or group of laws distinguished from other laws not merely by the character of their contents, but by the source whence they spring and by the force they exert, a force which overrides and breaks all conflicting enactments passed by the ordinary legislature. ⁸

Even a rigid constitution, Bryce remarks, must undergo gradual alteration. In his words, “No constitution can be made to stand un­susceptible of change, because if it were, it would cease to be suitable to the conditions amid which it has to work, that is, to the actual forces which sway politics. And being unsuitable, it would be weak, not rooted in the nature of the State and in the respect of the citizens for whom it exists; and being weak, it would presently be overthrown.” ⁹

The Constitution of the United States, however, remained suitable in 1914—and, one may add, remains suitable today—because it has changed and developed in response to national necessities.

Bryce lists three ways in which such change has occurred: formal amendment, interpretation, and usage. Altogether, he calculates, the constitutional changes which occurred in the United States between 1789 and 1914 were far smaller than those which the British Constitution underwent during the same century and a quarter. As he puts it, “So far, therefore, the Rigid Constitution has maintained a sort of equi­librium between the various powers, whereas that which was then supposed to exist in England between the king, the peers, the House of Commons, and the people (i.e., the electors) has vanished irrecover­ably.”¹⁰

Bryce recognizes certain weaknesses, or potential weaknesses, in the American Constitution, reminding his readers that “To expect any form of words, however weightily conceived, with whatever sanctions enacted, permanently to restrain the passions and interests of men is to expect the impossible. Beyond a certain point, you cannot protect the people against themselves any more than you can, to use a familiar American expression, lift yourself from the ground by your own bootstraps.”¹¹ But he concludes his lengthy examination of the Ameri­can national government with hearty and specific praise of the conserva­tive character of the Constitution of the United States, the more noteworthy because Bryce was a pillar of British Liberalism:

Nevertheless the rigid Constitution of the United States has rendered, and renders now, inestimable services. It opposes ob­stacles to rash and hasty change. It secures time for deliberation. It forces the people to think seriously before they alter it or pardon a transgression of it. It makes legislatures and statesmen slow to overpass their legal powers, slow even to propose measures which the Constitution seems to disapprove. It tends to render the inevitable process of modification gradual and tentative, the result of admitted and growing necessities rather than of restless im­patience. It altogether prevents some changes which a temporary majority may clamour for, but which will have ceased to be demanded before the barriers interposed by the Constitution have been overcome.

It does still more than this. It forms the mind and temper of the people. It strengthens their conservative instincts, their sense of the value of stability and permanence in political arrangements. It trains them to habits of legality as the law of the twelve tables trained the minds of the educated Romans. It makes them feel that to comprehend their supreme instrument of government is a personal duty, incumbent on each one of them. It familiarizes them with, it attaches them by ties of pride and reverence to, those fundamental truths on which the Constitution is based.¹²

Bryce’s sentences form a fitting conclusion to my remarks on the analysis of the American Constitution by observers from abroad. One might easily extend the citing from other visitors to the American Republic down to the present year.

TOCQUEVILLE, MAINE, AND BRYCE concluded that the Constitution of the United States was sound—and unique. Discernment of the con­servative virtues of the United States Constitution does not mean that America’s fundamental law may be transplanted readily to other lands: attempts at that generally have failed. As Tocqueville pointed out forcefully, the American constitution is the product of American mores, convictions, customs, and previous political experience; it was formed out of peculiar American circumstances; other democracies could not well adopt it. As Daniel Boorstin put this point more than forty years ago, “The Constitution of the United States is not for export.”¹³ Nev­ertheless, in both Democratic and Republican national administrations, the Department of State and major media of opinion have behaved as if the troubled states of Asia, Africa, and Latin America, not to mention Europe, could readily frame constitutions very like that of the United States. Doubtless it would be well for “emergent nations” to take heed of the conservative spirit of the American Constitution. Yet it is not possible for the politicians of very different cultures to emulate thor­oughly the American framework of institutions, for their circumstances and necessities are very different from ours. Even if they were so to copy the details of the American Constitution, that house of cards would fall to its ruin within a few years, at most.

On what principles, then, may a constitution be assessed for sound­ness? Aside from the general object of protecting order, justice, and freedom, one may set down, I think, four primary characteristics of a desirable constitution.

First, a good constitution should provide for stability and continuity in the governing of a country. The subjects or citizens of a political state should be assured by their constitution that the administration of the laws and of major public policies will not change abruptly from one year to the next. What was lawful yesterday should not arbitrarily be declared unlawful tomorrow without formal and prudent amend­ment of the constitution. The people must be able to live their lives in the confidence that if they obey certain rules, they will not be made to suffer. Such a constitution encourages the growth of economic pros­perity, among other benefits. When a country’s constitution does not provide a reasonable degree of political stability and continuity; no man or woman may make major decisions without fear of unhappy consequences—as in the Soviet Union under Stalin or in Germany under Hitler.

Second, a good constitution should divide political power among different branches of government and should restrain government from assuming powers that belong to other social organizations, social classes, or individuals. A wise constitution may allocate certain powers to a central government and other powers to regional or local governments; or it may assign certain functions and prerogatives to each of the major branches of government—the executive, the legislative, the judicial. Certainly a prudent constitution will provide safeguards against arbi­trary and unjust actions by persons who hold power temporarily.

Third, a good constitution should establish a permanent arrange­ment by which holders of political authority are representative of the people they govern. To put this another way, under a constitutional order the people ought not to be ruled by a group or class of persons quite different from themselves, who do not at least have the best interests of the majority of the people at heart. This does not necessarily mean that a constitutional government has to be democratic, and still less that it necessarily must provide for one man, one vote. There have been decent constitutional systems, in various times and lands, that were monarchical, or aristocratic, or formed without popular elections. What matters is that the persons who make public decisions and hold political authority should represent the general public interest and usually be accepted by most of the people of a country.

Fourth, a good constitution should hold accountable the persons who govern a state or a country. That is, a governing class or body of public officials should be held responsible, under the constitution, for their actions while in public office, and should give an account of their performance when they leave office. Under a truly constitutional gov­ernment, no man or woman can be permitted to exercise arbitrary power—that is, to do much as he likes, without regard for laws or popular rights. All officials must be accountable to regular authorities­ to courts of law, to some representative or legislative body, to the voting public at election time, to fiscal inspectors, to such devices as impeach­ment and recall, to some other group or organization competent to judge of performance in office and, if need be, to remove even very powerful persons from office or to punish them for abuse of power or misuse of public funds.

Tocqueville, Maine, Bryce, and other European or British political critics found in the Constitution of the United States the four virtues discussed above. They discerned that the American Constitution was no declaration of abstractions, but instead a practical instrument for governance.

On what principles, then, may a constitution be assessed for sound­ness? Aside from the general object of protecting order, justice, and freedom, one may set down, I think, four primary characteristics of a desirable constitution.

A sound national constitution does not lay down some system of theology or moral philosophy, even though certain constitutions drawn up since the French Revolution have been attempts to do precisely that. A constitution is a design for government, a general plan for the political order of a state. A constitution—that is, a good constitution—distinctly is not a treatise on political and economic and moral theory. Any constitution, or its framers, may be influenced by religious belief or philosophical principles, of course; yet the chief practical purpose of a political constitution ought not to be confused with the imparting of a religion or a philosophy. Although in every era the moral order of a culture affects the political order, it does not follow that preaching a moral creed in the constitution would be an effective method for improving public morality.

Thus the Constitution of the United States was adjudged sound in what it refrained from attempting, as well as praiseworthy in its conformity to the general principles of constitutional purpose. But in what sense was that Constitution unique?

The really distinctive feature of the Constitution was and is the Supreme Court, intended to be a conservative tribunal. Without the justices of the Supreme Court, Tocqueville found,

the Constitution would be a dead letter; it is to them that the executive appeals to resist the encroachments of the legislative body, the legislature to defend itself against the assaults of the executive, the Union to make the states obey it, public interest against private interest, the spirit of conservation against demo­cratic instability … The President may slip without the state suffering, for his duties are limited. Congress may slip without the Union perishing, for above Congress there is the electoral body which can change its spirit by changing the members….

But if ever the Supreme Court came to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war.¹⁴

Tocqueville goes on to emphasize the need for a strong and independent Supreme Court—a court of broad scope, the powers of which, if abused, must be highly dangerous. That peril, indeed, has come to pass during the latter half of the twentieth century, with the Court’s abandoning of Justice Frankfurter’s doctrine of judicial self-restraint, and its assumption of jurisdiction over matters formerly regarded as “political.”

To sum up this first chapter, whatever may be said for certain Supreme Court decisions since the Second World War, the Constitution continues to function today as a conservative framework for the Republic. The British Constitution now lies at the mercy of any majority in the House of Commons; and the British population, still a “deferential people” when Walter Bagehot wrote his famous book on the British Constitution, are by no means so attached nowadays to custom and convention as they then were.

Today, no other written constitution is very old, and few can be expected to endure very long. All constitutions drawn up in recent years pretend to be democratic, but some of them are whited sepulchres. Certain constitutions are mostly ideological pronunciamentos, full of sound and fury, signifying nothing; others are lengthy and tedious administrative documents, expressing in fundamental law what ought to be left to statute and administrative rules. Yet others are mere political facades, ignored in practice, all power actually being exercised by a ferocious party or a set of squalid oligarchs. What reasonable constitu­tions survive to our time are rooted, most of them, in the British con­stitutional experience—as is the Constitution of the United States.

The Framers of 1787, and President Washington in 1789, did not employ the word conservative to describe the Constitution they had shaped. That word did not become a term of politics until the first decade of the nineteenth century and was not much employed in North America until the 1840s. Nevertheless, the Constitution’s purpose was thoroughly conservative, and the succeeding chapters of this book are intended to make clear certain aspects of that conservative character.

1. See H. M. Lydenberg, ed., What Did Macaulay Say about America? (New York: New York Public Library, 1925). 
2. Henry Maine, Popular Government (Indianapolis: Liberty Classics, 1976), p. 204. 
3. Ibid, pp. 242-43.
4. Ibid, pp. 253-54. 
5. James Bryce, The American Commonwealth, new edition, vol. I (New York, Macmillan, 1919), p. 361. 
6. James Wilson, quoted in Bryce, p. 361, n.
7. Bryce, p. 362.
8. Ibid., p. 361.
9. Ibid., p. 362. 
10. Ibid, p. 403. 
11. Ibid, p. 407. 
12. Ibid, p. 407-8.
13. Daniel Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953), pp. 185-87. 
14. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer (Garden City, N.J.: Doubleday, 1969), pp. 150-51. 

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