The Roots of American Order
By Russell Kirk.
ISI Books, 2003.
Paperback, 534 pages, $18.
Reviewed by Bruce P. Frohnen.
Let me begin with what may seem an odd claim: the American Constitution is a central concern of Russell Kirk’s vast body of work. This statement is not supported by the relative number of words Kirk devoted to constitutional analysis. His Rights and Duties brings together crucial essays on the Constitution of 1787, but the vast bulk of his nonfiction work centers on issues of culture and history. For example, The Roots of American Order contains almost 500 pages of brilliant historical discourse telling the story of how traditions of faith, manners, and social action came together in communities settling the North American wilderness to forge a nation and people capable of pursuing a good life in common. The book devotes a mere 25 pages to the Philadelphia Constitution.
Those 25 pages are important, however. In them, Kirk explains how the Constitution’s structural elements provided for political stability and ordered liberty within a flourishing society. It patterned our political (and specifically legal) life in ways that maintained the people’s ability to control their own government, preventing both tyranny and the chaos of mob rule. It limited and shaped political power in ways that supported rather than commandeered or destroyed the salutary social and cultural forces of tradition, local associations, and custom that form order in the soul and, from it, order in the commonwealth.
The Constitution’s separation of powers into legislative, executive, and judicial branches, each with its own functions, powers, and sources of legitimacy, provided a means of organizing, limiting, and clarifying the legitimate bases of laws and policies. Constitutional checks and balances, including the presidential veto, the requirement that presidential appointments receive the advice and consent of the Senate and so forth, limited, not just the powers of specific political officials, but the relative power of various groups and interests in society. Federalism, the system of “dual sovereignty” protecting the status and moral force of the states, allowed “territorial democracy,” that is, local autonomy maintaining true self-government. The constitutional prohibition on a national church helped protect religious liberty and enabled biblical religion to influence public and private life in salutary fashion. All these formal, legal structures and procedures rendered self-government both meaningful and stable. Yet they hardly seem sufficiently fundamental to constitute the focus of a mind, like Kirk’s, concerned with what makes us fully human as persons and people.
All of which makes it important to recognize the context within which Kirk always viewed the American Constitution. For example, he is careful to note in Roots that “the true constitution of any political state is not merely a piece of parchment, but rather a body of fundamental laws and customs that join together the various regions and classes and interests of a country, in a political pattern that is just.” In this light, “the written Constitution has survived and has retained authority because it is in harmony with laws, customs, habits, and popular beliefs that existed before the Constitutional Convention met at Philadelphia.” A written constitution can function as a foundation for political order only through its connection with a living, unwritten constitution of the people that has deep and firm roots in history. Understood in proper, Kirkian terms, the unwritten constitution is an historical outgrowth of the cultural forces he discusses at greater length throughout his work. These forces produced an order that shaped the written constitution, in its drafting, in how it was applied, and even in whether it would be a source of legal and political order or of chaos and conflict.
In America, the unwritten constitution rested on a “legacy of English laws and institutions, upon the lessons of America under the Articles of Confederation, upon popular consensus about certain moral and social questions” directly traceable to the Western tradition, with its moral, religious, political, and social institutions, beliefs, and practices. “Thus the Constitution was no abstract or utopian document, but a reflection and embodiment of political reality in America.”
As an American, Kirk was deeply interested in the fate of his nation and people. That fate was bound up with our constitution, written and unwritten. The Roots of American Order is his fullest statement of what makes Americans a people and how that people’s inheritance from the broader culture of the West was received to form a decent, virtuous people; a people that understood itself, in political terms, to be principally engaged in deliberating how to rule itself in accordance with practical needs, the demands of moral truth, and the order of being created by God.
It has long been popular among academics to decry “Whig history,” meaning the analysis of human events as an evolution culminating inevitably in some self-chosen “glorious present” such as the British Empire or “age of democracy.” Kirk rejected such naïve perspectives, noting that all nations rise and fall over time. He did, however, recognize that nations and governments both have histories, that their forms and peoples are the product of the interaction among circumstances, traditions, and human action. Roots captures the story of the West and of one of its most prominent products and carriers, the American order. A central part of that order, indeed an ordering element of our society, has been the constitutional tradition brought over from England in the practices of early settlers who grew up within church communities in which believers covenanted with one another to rule themselves according to God’s will, as well as the broader, British constitutional tradition in which the powers of rulers were brought under the law and made to serve the people. This broader tradition, together with the long experience of American settler communities facing an often-hostile frontier, enabled the people to produce and support a constitution appropriate to a self-governing people.
All of which makes clear that the American constitution, as a document and as an order of political practices maintaining a decent public order, cannot survive unless it is respected in and of itself and supported by a people that retains its self-governing character. Should that reality cease to exist, so does the Constitution as an authoritative pattern for public life. Thus, if we are to learn as much as we can from The Roots of American Order, one of Kirk’s most important books, we must ask whether his conclusion, that our written Constitution remained an authoritative document, endangered but still helping order our public life through and on the basis of an unwritten constitution of self-rule and virtue, remains true today.
Kirk wrote 50 years ago at a time of great peril for our Constitution and Republic. He sought to reawaken Americans’ understanding of our structure of government and its reliance on a tradition—and a people—possessing both the determination and the capacity to govern itself. Forces of cultural and personal dissipation and of political centralization were in the ascendant at that time, and so Kirk called his readers to defend and reinvigorate the American order. Roots was a good and honorable, indeed brilliant, element in a good, honorable, and well-fought struggle. Unfortunately, dispassionate observation of the state of our society dictates that our answer, if we are to be true to Kirk’s own spirit and analytical skill, must be a firm, if melancholy, “no.”
The tragedy is that Kirk was correct: our Constitution was grounded in a deeper tradition, embodied in the people’s habits of thought and social practice, its religion, its historical common mind, its recognition of the importance and nature of order in the soul and, from it, order in the commonwealth. It is this tradition—this people—we have more than half lost. From this loss we have lost our public order, along with the Constitution that once supported it through good, legitimate law.
The parade of horribles seems endless: Riots in the streets and on our campuses calling for ethnic hatred and the destruction of our way of life; “drag queen story hours” sexually grooming our children in public libraries and schools; an epidemic of violent crime radical prosecutors refuse to address and the police are forbidden to address; and entrenchment of a regime of censorship, command, and control threatening to reintroduce its years-long muzzling of us and our children in the name of public health even as millions of unemployed, frequently ill, and often violent people are waived over our borders into government-subsidized housing. There has been little resistance and no accountability for any of this. Majorities continue to elect—or at least allow to govern—a ruling class that holds our people and traditional way of life in open contempt. We are more than halfway “remade” from a self-governing community of communities into a mass of mutually antagonistic “classes” of race, sex, and “orientation” seeking power and largesse from Washington.
Some would like to place the blame for our loss of constitutional order at the feet of our Supreme Court. After all, our families, churches, and local associations have been under relentless assault from judges who believe they are called upon to rearrange our society in the name of “social justice,” “individual autonomy,” “fundamental fairness” and other notions of which they know little. But to blame only one set of officials for their loss of humility and understanding would be to ignore the general decline in character among the increasingly secular, selfish, and self-indulgent people as well as those who supposedly rule by their consent. It would be to overlook everything Kirk taught about the nature of constitutionalism and of peoples.
Human law, properly understood, follows rather than leads or commands culture. Sadly, in recent decades its practitioners have sought to reconfigure society through its forms, raising it in importance but rendering it fatal to that which they seek to rule. From a reflection of permanent truths within given historical circumstances, law has been reduced to a matter of mere power as first the elites and then the people increasingly reject higher law in pursuit of their own dreams, desires, and will. The tension between virtue and power Kirk emphasized as central to our tradition has been upset. Power has been triumphant, with virtue increasingly reduced to an easy, hypocritical “signaling” of allegiance to current mob theories and the gods of the Earth Mother, equality, and the sovereign self.
The Roots of American Order remains a crucial resource for us today in part because we can trace our decline in the loss of our lived memory of the tradition it elucidates so well. At least as important, it provides a vision of the order with which we might still hope to reconnect in some form should we regain the fortitude and wisdom to seek in our tradition the solution to our present, nihilistic age. As Edmund Burke hoped the French would turn away from French Jacobin Revolution toward their own traditional political, religious, and social resources, we might turn away from our new status as wards of an all-encompassing state, ruled by tech lords and bureaucrats willing to bribe us with petty self-indulgences so that we will leave them to shape our society, our children, and our souls.
Bruce P. Frohnen is Professor of Law at Ohio Northern University College of Law. He has served as Charles Evans Hughes Professor of Jurisprudence at Colgate University, Thomas Bahnson and Anne Bassett Stanley Professor of Ethics and Integrity at the Virginia Military Institute, Visiting Scholar at the Johns Hopkins School of Advanced International Studies, Legislative Aide to a United States Senator, and Senior Fellow at Liberty Fund, Inc.
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