Postmodern Conservative

Conservative Instincts vs. the Living Constitution — Part 2

First off, let me say that I lack the eloquence to speak authoritatively on all the shootings — all the murders. We should all pray for all those affected, and we should resist blaming anyone beyond the actual killers for now. My only comment, I guess, is that our country is becoming unhinged or uncivilized for a lot more than one reason.

Meanwhile, I guess I’ll stay on course in presenting my comments on my assigned ISI topic — living Constitutionalism. They are supposed to be fun and provocative, and I hope you’ll, as Carl puts it, “take the bait” and let me have it. Here goes:

The idea of a living Constitution isn’t only opposed by our traditional conservatives — such as Russell Kirk. Our libertarians or classical liberals are also all about faithfully adhering to the original intent of our Framers. They think of them less as Founders who should be revered as gods than as men fortunate enough to have lived in a time when educated men and women agreed on the truth about human liberty.

They Founded with the truth in mind, and every form of sophisticated consensus about the truth in America since the Founding era has been pretty much movement away from the truth about individual liberty, the truth about who each of us is as a freely consenting being. That movement toward anti-individualistic or anti-liberal deformation and degradation—toward big government, soft despotism, and so forth—has often, ironically, given itself the name progressivism.

What the progressives claim is that the Constitution should live not only because we have to respond to changing circumstances such as industrialism and globalism but because we just know more than our Framers did. As Tocqueville saw, democrats tend to believe that adherence to timeless principles and practices is an aristocratic prejudice that gets in the way of moral, political, and technological change we can believe in. Democrats are progressives and pragmatists in all areas of life. The benefits of technological improvement are taken as evidence that everything is getting better. Some people think that Americans got all progressive because Hegel’s Germanic philosophy of history snuck into our universities. There’s some truth to that. But Tocqueville shows us that American democrats didn’t need foreign aid to be pragmatically progressive.

That things have been all downhill since the time of our Founders—and so opposing Founderism to progressivism—is a conservative instinct that opposes the natural inclinations of modern techno-democracy. It’s an instinct formed in conservative intellectuals when they read Tocqueville about the threats democracy—tyranny of the majority — pose to liberty. And from one view it’s the elitist instinct of traditionalists. As Tocqueville adds, it’s also the instinct of lawyers—who have a professional attachment to the forms and formalities of the rule of law. Lawyers, Tocqueville observes, are the closest thing we democrats have to an aristocracy.

Why, you might ask, have so many of our best lawyers—such as those who teach in law schools—become progressives? Well, for one thing, their elitism turns out to be rather generic. They tend to be against what the people are for: The people, these days (meaning for decades), have been more animated by the veneration time has bestowed on the Constitution than our lawyers have been. It’s the people who resist the new births of Enlightenment that allegedly come through the current views of the insight that the Constitution lives. The people are suspicious of the elitist view that, thanks to our cutting-edge intellectuals (some of whom serve as justices), our understanding of equality and liberty reliably and constantly evolve for our benefit.

That means that in our country, thank God, conservativism isn’t the opposite of populism. More than you might think from reading the Federalist alone, the people have conservative instincts too. Their respect for the Founders is part of their patriotism and their attachment to religious morality. Founderism has always been opposed by an innovating elite, although our leading Founders were, in fact, an innovating elite opposed to the populism of their time. Both the Founderists and the progressives have always been both partly elitist and partly populist.

The progressives always say they’re for more liberty and more democracy, but they’re  always also for a new class of experts who tell what it means to be on the right side of history today.

Classical liberals such as Hayek were careful to distinguish themselves from conservatives and from populists. And so they were against revering Founders (and gods and heroes in general) as such. But they understood that, in the American case, the Constitution revered by conservatives and by a patriotic people was a classically liberal one. So they regard it as a fortunate coincidence that American conservatives devote themselves to the fixed principles of liberal individualism.

 That means that, in America (and not other places), liberals or libertarians are tactical conservatives. Even Ayn Rand saw she was an American conservative.

Today, classical liberals or libertarians are the main proponents of the theory of constitutional interpretation called originalism. Originalism is the opposite of living constitutionalism at least in form. It is, in fact, about recovering the original interpretation of the Constitution by our Framers and the world of the Founding generation.

Originalists are originalists, a cynic may say, because originalism most readily generates the results they want; for them it’s a form of self-interest rightly understood. But, originalists can add, it’s unclear that, at least for judges, there’s any legitimate alternative to originalism. Judges aren’t philosophers, and they have no warrant for replacing the will of the lawgiver with their own. Veneration for the Founders’ Constitution is the only legitimate foundation of judicial review.

 One alternative to originalism is rule by judicial philosopher-kings, and judges just aren’t trained for that. (And after all, there’s little reason to believe philosophers can be trusted more than anyone else.) The other alternative is replacing constitutional law with the arbitrary and often rights-denying legislation. That might be the Court legislating from the bench. And it also might be the Court abdicating its responsibility by deferring to legislatures—on the ground that an evolving majority consensus is the true foundation of a living constitution.

Well, it’s not really true that libertarian originalists are simply deferring to the Constitution as law. That’s closer to what Justice Scalia did, and he called himself not an originalist, but a textualist. Scalia was about reading the text as you would any other law, and not imposing from without any theoretical baggage on it. That means, for example, if the Constitution says nothing about abortion or marriage, the states can legislate pretty much as they please.

 That also means that when it comes to abortion or religion or marriage or single-sex education, Scalia was pretty much a genuine traditionalist, defending the longstanding practices of the states against their theoretical deconstruction by judges posing as philosophers who have some deep insight into what liberty has come to mean in our privileged time. Now, in some areas, Scalia was a pretty activist or assertive judge, but that’s because the actual text of, for example, the First Amendment on speech and the Second Amendment on arms pointed him in that direction.

YES, I’M STOPPING IN MID-THOUGHT, BUT I’VE BORED YOU ENOUGH FOR ONE POST.

Peter Augustine LawlerPeter Augustine Lawler is Dana Professor of Government at Berry College. He is executive editor of the acclaimed scholarly quarterly Perspectives on Political Science and served on President George ...

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