I was told last Friday by this site’s SBE (“senior blog editor”), Ivan Kenneally, that an encounter between any two members of the postmodern conservative masthead, for whatever licit reason, is sufficient to warrant a posting. So here I am. I had occasion on Thursday to visit Kenneally’s home turf, Rochester Institute of Technology, to deliver the annual Constitution Day Lecture. This same lecture was given in the past by another pomocon writer, Peter Lawler, whose reputation in the community is so high that there is talk of naming a segment of the Erie Canal after him. It was also an opportunity to meet with many of the members of the fine political science department at RIT and to be treated to one of the better examples of Italian cuisine to be found east of Genova.
The topic I chose was the idea of a written constitution, which was one of the founders’ most important innovations. According to Thomas Jefferson, and what higher human source is there?, the state of Virginia in 1776 was the first government ever—ever meaning as in all of time—to produce a written constitution, i.e., a document that sketches the whole frame of government. By the time of the constitutional convention in 1787, after other states had adopted and modified this technique, there was already something of a theory of the status of a written constitution, of what it should include, and of how it should be drafted and how approved. The innovation of a written constitution made possible the elevation of law above government (see Federalists 53 and 78) and the consent of the governed (for how can people officially consent to something unless they can see what is in it and approve of it?). In addition, at least in the founders’ version of the theory of a written constitution (as distinct from Jefferson’s) a direct connection is established between the founders’ thought and the political thought of all subsequent generations. (This idea is explicated in Federalist 49, which I have tried to honor by adopting it as my license plate, “Fed 49,” leaving eighty-four other papers to be selected by conscientious Virginians.)
But was a written constitution a good idea? Perhaps it was not really so much a new theory as one that had been considered before and rejected by wiser heads. This was the suggestion of that iconoclastic conservative writer Joseph de Maistre of that age, a man obsessed with discounting anything that might smack as an innovation, above all something that came from America. (De Maistre went off, for example, on the effort to form a new city—Washington, D.C.—a position that some in the recent tea parties have all but seemed to endorse.) De Maistre could have made some very telling arguments, which were suggested a long time ago by the classics. If there are always exceptions to a rule—even a good rule—then it could be unwise to enshrine it into a rule that is deemed “higher” and unchangeable under the circumstances. Either you follow the rule and perish, or you break the rule and forever undermine credibility and respect for the rule of law as such. No human institution should ever be constructed that does not leave room for discretion, the kind of discretion that allows someone, for the public good, to set aside any rule. So from this point of view, there could be wisdom in the “theory” that underlies the unwritten constitution of Britain (or that used to underlie it before it joined the EU). It is implicit in Blackstone’s wonderful passage referring to the powers of parliament: “It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.”
All written constitutions face this kind of dilemma. Some handle it by the expedient of having an opt-out procedure within the constitution, allowing for the constitution to be suspended during certain periods and for the executive to exercise emergency powers. Another view—which many believe is inside the American constitution—contends that the written constitution already allows, under the constitution, for the exercise of necessary emergency-like powers when the situation warrants.
Well, Joseph de Maistre did not dwell on these points. He instead referred us back to a broader question, which of course I did not have either the time or inclination to present to the predominantly undergraduate audience at RIT, but which I raise for the more speculative-minded Pomocon readers: is it wise to put anything of importance in writing? This question is one Socrates addresses, on doubt with a touch of irony, in the Phaedrus, 275-d and e: “And when they have been once written down they are tumbled about anywhere among those who may or may not understand them, and know not to whom they should reply, to whom not: and, if they are maltreated or abused, they have no parent to protect them; and they cannot protect or defend themselves.” No one with any sense would write down anything, at least not anything serious. If you read some so-called interpreters of our Constitution today, those who prattle on about its invisible interstices, you will have some sympathy with Socrates’s comment; these are interpreters who really could use some “parental” supervision.
And yet, all things considered, I am happy that Plato and Xenephon chose to write down “Socrates’” words, even if they never perhaps committed the most serious part to the written page. What they left us is still more than enough for us to chew on. Speaking of which, consider a thought from a higher source on how to digest some of your favorite works: “And he said to me, ‘Son of man, eat whatever you find here. Eat this scroll, and go, speak to the house of Israel.’ 2So I opened my mouth, and he gave me this scroll to eat. 3And he said to me, ‘Son of man, feed your belly with this scroll that I give you and fill your stomach with it.’ Then I ate it, and it was in my mouth as sweet as honey.” (Ezekiel 3:1-3)
There is still wisdom and majesty in that document that begins “We the People of the United States…” if only we would read it with care.
Sunday, September 20, 2009, 10:53 AM
September 20th, 2009 | 3:16 pm
Rochester is turning out to be the intellectual center not only of Cougar life but of postmodern conservatism. Thanks to jwc for another fascinating and witty post. It occurs to me after reading this defense of our innovation of the written Constitution that I’ve erred by only talking at RIT about our most remarkable friendly (but tough) foreign critics–Tocqueville, Solzhenitsyn, and Delsol. FEDERALIST 49 is the most Straussian of the 85 papers insofar as it attends most explicitly to the distinction between philosophy and law. But it’s still on the ironic side: Veneration is bestowed on anything that’s old and hard to change (such as grandma), and it’s only not a superfluous advantage for stable government. We’re still stuck with thinking about the truth and goodness of our law in a way a more genuinely traditional people aren’t. That’s one reason why our judges have troubling distinguishing between philosophy and law, not to mention why some even think that the Declaration of Independence is somehow embedded in the Constitution. I think us bloggers and threaders are convinced, though, that if something’s important it should be written down. We actually seem to think that if anything comes to mind it should be written down. I have a weakness for FEDERALIST 55, although this is the only place I’m going to write that down.
September 21st, 2009 | 12:23 am
As usual, Jim was really impressive–he managed to make a serious and interesting argument that was accessible to undergraduate students. On top of that, he’s a terrific all around guest. Eventually, I really will have to throw a conference devoted to the Cougar, our most precious natural resource here in Rochester, and invite some of my smartest, youngest, and single male interlocutors.
So there is certainly a sense in whichour Constitution tries to combine a kind of technocratic political engineering with the poliitcal stability that comes with reverence for the law. But we’re not nearly as technocratic as Hobbes who thought an “able architect” could engineer a constitution that would be “everlasting”. Instead of rational triumphalism Madison affirmed the permanent fallibility of human reason, in place of moral perfection he gave us an affirmation of permanent depravity, and while he liked the idea of a pretty undemocratic judiciary as a counterweight to democratic excess he also agreed with Hamilton (not to mention Tocqeville and Momtesquieu) that the judicial branch should have its purview narrowly limited by particular cases and precedent. The problem today is that const interpretation (as Frankfurter complains in Baker v Carr) now seems to require adjudicating competing political philosophies making the debates less accessible and further justifying more judicial technocratic elitism. Much of this to be expected,not just given the construction of the judiciary, but the odd way, as Peter points out, our const was meant to inspire reverence not by pointing to a tradition but a natural rights philosophy. It might be the case that the resurrection of judicial restraint, understood as appropriate deference to not just freedom but common sense of the common folk, requires a renewed confidence in the common sense, or self evidence,of our founding principles.
September 21st, 2009 | 9:04 am
Nice shout out to Frankfurter in Baker v. Carr!
Interestingly, our Constitution Day festivities centered on excellent presentations by Hadley Arkes on the judiciary (Justice Sotomayor in particular) and the logic of moral reasoning as the only possible return to first principles… a logic accessible to common folk but seemingly lost on a great many on the court.
September 21st, 2009 | 9:18 am
A slightly different question occurs to me: is it wise for us to encourage other nations to follow our example by establishing written constitutions? Some of our mistakes in Iraq, it seems to me, might plausibly be attributed to our obsession with formal constitutionalism at the expense of power politics. And, even beyond the UK, there are several successful democracies that lack true written constitutions (e.g. Germany, Israel). To what extent might the written constitution be a solution for a particular historical problem?
September 21st, 2009 | 10:39 am
In my view, the most important thing about the Virginia constitution — which is not mentioned here — is that it established the idea of a formal separation of powers between the three branches of government. This was also an historical first, and I think the more decisive revolution.
September 22nd, 2009 | 5:05 pm
I’ve learned from reading John Locke always to consult biblical texts a philosopher cites, since the context the philosopher creates for his own argument usually has some kind of irony with respect to the original context for the text. In Ceaser’s case, I am once again affirmed. Ceaser’s thoughts were, once again, with Abraham Lincoln and the “state of exception” necessary to restore a nation that promised liberty.
Ezekiel 3 features the prophet receiving the word of God as a scroll as sweet as honey. One of the unfortunate side effects of Honey Scrolls (part of a prophet’s complete breakfast?) is dumbness. Before God renders Ezekiel dumb (but after our prophet eats the scroll), God mentions a problem with talking to the Israelites: they won’t listen:
“Not to a people with difficult speech and barbarous language am I sending you, nor to the many peoples [with difficult speech and barbarous language] whose words you cannot understand. If I were to send you to these, they would listen to you; but the house of Israel will refuse to listen to you, since they will not listen to me. For the whole house of Israel is stubborn of brow and obstinate in heart. But I will make your face as hard as theirs, and your brown as stubborn as theirs, like diamond, harder than flint. Fear them not, nor be dismayed at their looks, for they are a rebellious house.”
Life after the scroll appears pretty awful for Ezekiel (he bore witness to the destruction of Jerusalem), so I hope it was really sweet (and, considering how his words helped rebuild the temple post exile, the sweetness seemed to have lingered). The people of Israel are those fit to hear God’s words but are the least likely to hear it. Perhaps their fitness is in their stubbornness, but God’s choice of Israel as His people is always fundamentally inscrutable. What matters is that Ceaser has titled and ended his post with a reference to the prophet of Jewish exile, the one who narrated the destruction of Jerusalem and envisioned its utopian rebuilding. Ezekiel saw the destruction of Jerusalem as comeuppance for violating the covenant with Yahweh, but the restoration of Israel will come after she reaffirms her commitment and returns to rebuild the temple.
Yet, Ceaser cites a very pessimistic Socrates with:
“And when they have been once written down they are tumbled about anywhere among those who may or may not understand them, and know not to whom they should reply, to whom not: and, if they are maltreated or abused, they have no parent to protect them; and they cannot protect or defend themselves.”
Who are those who have done this with Ezekiel? I know of at least one other “son of Man” of note, but let us leave that issue aside, since the larger problem is that there is no way not to eat the scroll–to establish written laws defining a people, at least, pace Rousseau, not anymore. The problem Socrates describes does not beg for a solution but for vigilance of the constant threat posed by those he describes. Therefore, the question is not how to avoid writing laws but how to know their meaning and application as opposed to manipulate them to serve private interests.
And Ezekiel’s answer is to see the fate of nation’s as God’s judgment, but that same judgment is God’s promise. He only judges those to whom he has given a covenant to maintain, a covenant other nations would ready accept. Only when understanding how God’s promise provides for future glory (as found in Ezekiel’s later, utopian passages) can one make sense of the present hardship. “How Licolnian,” you might say, even though the reverse is more true.
The example of Lincoln illustrates the proper function and the ultimate limits of a written Constitution and, moreover, how Lincoln resorted to divine judgment to describe the necessity of his violation of the Constitution he himself saw as sacred.
September 23rd, 2009 | 9:14 am
The Constitution is too hard to amend. TJ and the proggies had a point. The natural impulse to alter our fundamental law has thus emerged in defacto admendment by the judiciary via living constitutionalist interpretation. We should pass a two-clause amendment:
1.) The 5th Article is hereby amended so that it only requires a majority of Congress or the states to propose an amendment, and only 2/3 of the states (ect.) to pass.
(or, make it 70%–the 75% requirement is too stiff).
2.) “Living constitutionalist” interpretation of the Constitution shall from this point forward be grounds for impeachment.
September 23rd, 2009 | 11:07 am
I’m assuming Peter likes #55 b/c of the horrifying image of a mob of Socrateses–such a mob would be a bit like the audience for a Strauss panel at an APSA! BTW, I actually have enough reverence for and confidence in philosophy to think Madison went too far when he said that. Although the prospect is stomach-churning in some ways, I’d rather be ruled by the audience at an APSA Strauss panel than the first 100 persons found in the phone book.
And Jim C., it seems the better ancient text to refer to on the issue of not writing things down is Plutarch on Lycurgus, since after all, we’re not talking so much about philosophic doctrines as we are laws that will govern a community. Whenever you don’t write the laws of a community down, you place authority with the elders, custom, and intensive education-by-the-customs. Necessarily, then, you’re going to be more like Sparta than Athens, more like Dark Ages England than Magna Carta onwards England. Even the closest the Americans ever came to Lycurgus-like practice, Puritan New England, didn’t think twice about writing compacts and laws down. My guess is Maistre wanted a situation in which there were written laws, and some more fundamental than others, but that these were mainly known by the upper-classes, whereas for everyone else almost all poltical questions were considered (when they were, which would be rarely) vis-a-vis reverence for the king. To really go down the unwritten path, you need to advocate illiteracy, and you either need to return to paganism, or you need to obcsure the biblical in “biblical religion.”
September 23rd, 2009 | 7:53 pm
scott unfairly stacks the deck. would he prefer to be ruled by folks at an apsa rawls panel than by the first 100 in the phone book?
he is correct on the rest. the post “went literary” in turning to plato and ezekiel.
September 24th, 2009 | 8:19 am
So we learn from Tocqueville that there are two sources of American universal literacy: The Puritan thought that everyone should read the (written law) of the Bible for himself (so as not to be seduced by hearsay, “Satanic” evidence). And the middle-class requirement that everyone work for himself–and so, among other things, be able to read contracts etc. Nothing would contribute more to “civic literacy” than the promulgation of the opinion that we should read the Constitution for ourselves and stick it to the experts who would read it for us or read their elitist theories into it. The written law means nothing, finally, if it doesn’t inform and
elevate our opinions.
I doubt we’d get good government from either a herd of Straussians or a herd of Rawlsians. And they both read their elitist theories into the Constitution–admittedly the Rawlsian have much stupider theories.
Links
Blogs
Find Us
Contact