So here’s the first part of several of the lectures I was going to give — but didn’t — at the ISI Honors Conference. I ended up talking about three senses of constitutionalism in recent TV and movies. The outline: Separation of powers / ambition counteracting ambition (House of Cards), the rule of law (Atticus Finch), and the constitution as “regime” (Brooklyn). I can post that too, eventually.
Anyway, here’s my introduction to what I didn’t say:
The instinctive conservative response is to just say no to the idea of the living constitution.
There are various and conflicting reasons for that great refusal.
One is the conservative recognition that even a free country depends on tradition. Federalist 49 says the Constitution should be very hard to change in order that it pick up” the veneration that time bestows on everything” that stands the test of time. Now that, of course, is a half-hearted endorsement of veneration. It’s acquired by everything that lasts a long time, including various irrational prejudices and outmoded habits. We venerate old things and old people just because they’re old and hard to change. I’m being venerated more than I used to be these days, but there may be plenty of good reasons why what I believe are my words of wisdom are being ignored more than they used to be.
Now we conservatives are all for talking up veneration in a democracy. Democracy, as Socrates explained, is prejudiced against everything old and all for every innovation that comes along. One perplexing feature of our techno-democracy is that we have more old people than ever but we have no idea what old people are for. Certainly we don’t respect their wisdom that comes from experience, because that alleged prudence is what slows down unreasonably all the change we can believe in this days.
When your iPad, iPhone, or iPod, or some other i thing breaks down, you don’t go to your great-grandfather and ask him to deploy his wisdom and closeness to the gods to resolve the perplexity you face. You know that the most techno-savvy member of the family will probably be the youngest person who can read.
More generally, everyone in a techno-democracy is all about praising disruptive innovation and entrepreneurship in all areas of life, including political entrepreneurship. Why should our Constitution be exempt? Why should it get to rest on its laurels when nothing else does?
That’s the problem we conservatives face when talking up constitutionalism. And we’re stuck with the fact that our great Framers were, at best, half-hearted conservatives.
They thought their Constitution was quite the disruptive innovation when it comes to unprecedented protection of liberty. And the lessons they learned from the Greeks and Romans and all that were mainly negative, just as they thought that the existing state governments they meant to largely displace were often pretty incompetent and tyrannical. The conservatives — or the let’s-stay-the-course fellas — were the anti-Federalists. Our leading Framers, to say the least, didn’t display much veneration for the various institutions they had been given.
But: They also knew that a sustainable Constitution couldn’t rely on rational self-interest alone. People wouldn’t respect the limitations on government they could readily undo. In “a nation of philosophers,” Federalist 49 explains, it would be possible to dispense with veneration and merely appeal to reason. Most people, the truth is, have neither the time nor the inclination to dispense with prejudice in making political judgments. And the more they are prejudiced in favor of an effective Constitution, the better their judgments will be.
But even in the case of philosophers, the rule of reason could only occur in a nation of philosophers — one constituted by the strong political institutions of a firm Union. After all, as Federalist 55 adds, had every Athenian been a Socrates, the Athenian democracy would still have been basically mob rule. Even or especially philosophers — because of their ambition, vanity, and eloquence — would run amok in a direct democracy.
It’s true that Socrates didn’t exactly run amok, but he did corrupt the youth, cause all kinds of other dangerous commotion, and ruined the reputation of his city (country) forever. And he even complained that almost no Athenian was philosopher enough to really understand him and his needs. Socrates behaved as well as he did and had a real respect for the law because he and his kind didn’t rule.
Just because philosophers are more reasonable doesn’t mean they can be trusted. And so it might follow that people who really venerate their Constitution shouldn’t trust our justices’ claim–on behalf of their superior wisdom and virtue–to have the final word on the Constitution’s meaning.
The takeaway for today is that even a Constitution that rational individuals can affirm as a firm protection of their liberty can’t endure without the added support of veneration. Veneration is undermined by the idea that a Constitution “lives” or evolves for the better over time. That’s why our Framers made the Constitution so difficult to change. The Constitution, to be sure, is nothing more than the fundamental will of the people. It’s not the word of God or even mystically rooted in timeless tradition. But the people should still blur, at least some, the distinction between the Bible as word and the written Constitution as word.
So our Constitution has picked up a lot of the traditional veneration that used to be accorded to the British constitution. Well, maybe more. The British constitution really does evolve; one reason is that people forget exactly what they said before, and judicial precedents have plenty of conflicts that must be resolved. But our written Constitution (well, with the exceptions of the fairly rare amendments) is as unchangeable as the Ten Commandments themselves. The tool of conflict resolution is the text itself, which stands above wavering record of judicial precedents.
We now see why so many professors of political philosophy these days are knocking themselves out promoting thoughtful veneration for our Founders and their Constitution and the enduring principles about nature, rights, and so forth in the Declaration of Independence. America’s greatest student of American politics — and the one most about clamping down on the tyrannical ambition of demagogues — has a FED49 license place. That, of course, is James Ceaser, who’s taking a victory lap this year after sort of predicting the rise of Trump.
The rise of Trump reminds us that the functioning of our Constitution does, in fact, change–for better and worse–over time. The demagogue Trump’s success depends on the breakdown of what has become the Constitution’s dependence on a strong two-party system, on two parties that are organized and effective bodies of thought and action. And the “electoral college,” everyone knows, doesn’t work as the Framers intended. If we venerate it, it’s because the way it functions now supports the two-party system in a way that moderates ambition and cultivates constitutional deliberation. Mr. Ceaser, in effect, asks us to venerate the “mixed” presidential nominating system of 1924-68, one that combined elements of wisdom, the proper channeling of ambition, and consent. That system wasn’t really chosen by anyone, and we’re nostalgic for its good effects without having any way to bring it back to life.
So another takeaway: The conservative doesn’t deny that the Constitution in some senses lives, but the change we’ve seen has been a perplexing mixture of better and worse. That’s why we’re for a realistic and judicious version of veneration, one enhanced by rigorously selective nostalgia.
More to come.