These are the times, as recent issues of this journal reflect, for reassessing our constitutional tradition, and current constitutional decisions and discussions are a good place to start. But a perceptive observer will immediately notice a puzzling, almost schizophrenic quality in modern constitutional discourse.
On the one hand, jurists and scholars declare, proudly and often, that constitutional discourse is the quintessential manifestation of reason in politics. Purporting to call the nation to order regarding the most divisive moral issue of our time, Supreme Court Justices explain that we should take their view of abortion in the 1992 Casey decision as definitive because it is based on “reasoned judgment.” John Rawls confirms the Justices’ assumption: “The Court’s special role makes it the exemplar of public reason.” Ronald Dworkin celebrates a “fusion of constitutional law and moral theory.”
At the same time, constitutional scholars from all points on the political spectrum acknowledge an escalating irrationality in the constitutional conversation. Speaking from the left, Harvard’s Duncan Kennedy describes Supreme Court decisions as the product of “the bizarre impact of self-delusion on the implementation of the political agenda by the judge.” Daniel Farber, a moderate and pragmatic constitutional scholar at the University of Minnesota, finds the decisions “increasingly arid, formalistic, and lacking in intellectual value.” Farber’s colleague Michael Paulsen is more conservative and also more pungent: The Court’s opinions are “pseudo-sophisticated legalese,” “arid, technical, unhelpful, boring, . . . unintelligible,” and “formulaic gobbledygook.” Noting “increasing signs of intellectual incoherence” in constitutional decisions, H. Jefferson Powell of Duke concludes that Supreme Court pronouncements are less an expression of reason than a manifestation of “violence [that is] increasingly wayward, increasingly brutal.”
Perceptions of proliferating irrationality are not good for morale, so it should not be surprising that constitutional discourse seems to be experiencing a kind of malaise. A friend who has been teaching a course on constitutional law for a couple of decades and has achieved a national reputation confided recently that he plans to stop teaching the course; there just isn’t any integrity to the subject, and it becomes almost a degrading experience to have to teach, say, equal protection doctrine and pretend that the Court’s decisions are the product of any sort of coherent thinking. Students in constitutional law courses increasingly echo the Critical Legal Studies slogan from the last decade: It’s all “just politics.” One student wrote on an exam in one of my courses: “The only essential skill needed to understand the Supreme Court’s constitutional decisions is the ability to count to five.” In this atmosphere, mandarin disquisitions on hermeneutical theory or political-moral philosophy bequeathed to us by our elders come to seem no longer elegantly erudite, but instead weirdly comic.
In short, constitutional discourse today appears both as a stately expression of reason and as the shabby antithesis of anything that could plausibly be called rational. How to account for this schizophrenic condition?
We might start by remembering that the familiar claim that constitutional law is the embodiment of reason is not a new one. A similar claim was made earlier by, among others, the American Founders. In the first paragraph of the first essay of The Federalist Papers , Alexander Hamilton introduced the basic theme: “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice , or whether they are forever destined to depend for their political constitutions on accident and force .” James Wilson told the Pennsylvania ratifying convention that in the six thousand years since the creation, “the United States exhibit to the world the first instance . . . of a nation . . . assembling voluntarily, deliberating fully, and deciding calmly concerning the system of government under which they wish that they and their posterity should live.” Cass Sunstein’s recent assertion that “the Constitution established, for the first time , a republic of reasons” may sound recklessly self-congratulatory”What about Periclean Athens? Ciceronian Rome? The common law government of Bacon, Coke, and Hale?”but the statement resonates with much that was said in the founding generation.
But what would it mean to have a Constitution based on reason? Indeed, what is “reason”? These are large questions, but for the moment, we can notice one persistent feature of modern conceptions of reason. In Reason and Culture , a book seeking to defend reason against contemporary attacks, Ernest Gellner explains:
One of the central themes, perhaps indeed the central obsession, of Cartesian rationalism is the aspiration for autonomy. There is the overwhelming desire for a kind of self-creation, for bringing forth a self and a world not simply taken over from an unexamined, accidental, contingent inheritance. Rationalism is the philosophy of the New Broom. Man makes himself, and he does so rationally .
A commitment to autonomy or self-creation distinguished the constitutional project from the beginning. All previous governments, the Founders sometimes suggested, had been the product of accident, force, or fraud. Machiavelli had reported the common opinion that “worldly events are so governed by fortune and by God that men cannot by their prudence change them, . . . and for this they may judge it to be useless to toil much about them, but let things be ruled by chance.” It was this same dark foe”as Henry Adams would later put it, “the harsh brutality of chance””that the American Founders hoped to domesticate through the application of reason. So they set out to do in action what over two millennia earlier Plato’s Republic had attempted to do in words: create a political constitution virtually from scratch on the basis of self-conscious deliberation.
Of course, the Founders’ understanding of “autonomy,” and hence of “reason,” differed in critical respects from more modern notions associated with those terms. Americans of the founding generation believed unreservedly in a divinely instituted natural order. “Natural rights” were grounded in this order, and the purpose of politics was to discern and conform to the preestablished design. So autonomy exercised in accord with reason meant something like freeing yourself from corrupt traditions and “thinking for yourself” so as better to conform to the providential plan.
In more modern thinking, by contrast, these ideas may seem a bit quaint, if not positively offensive. Having noisily rebelled against Tradition and Authority, it may seem, the founding generation still groveled before God”or at least before God’s supposed product, Nature. By contrast, the notions of a providential design, or of a normatively authoritative Nature, seem alien in today’s intellectual climate. So, to the modern mind, reason connotes self-creation in a more radical sense.
In short, there are both crucial continuities and important disjunctions between the Founders’ and our modern conceptions of reason, and hence between what founding and current constitutionalists mean when they express a commitment to a politics governed by it. Modern constitutional discourse is a child of this persistent but evolving”or, some would say, decaying”commitment.
And what has this exalted, or exalting, commitment given us? The expansive reason of contemporary constitutional discourse is a seething sea of doctrines and techniques and theories and authorities providing the rhetorical resources that lawyers, judges, and scholars may use to argue as a matter of constitutional law for virtually any position that the climate of political opinion might countenance in the first place. Should government guarantee a minimum income, along with shelter, food, and clothing, to all citizens? Should individuals or legislators be free to consult their religious beliefs in deciding which candidates or bills to vote for? What about affirmative action? Should there be some sort of legal remedy for what Georgetown professor Robin West describes as the “state of servitude” inherent in the role of wife and mother? Should government regulate the production and sale of pornography? With respect to each of these questions, either an affirmative or negative answer can now be shown to be not merely prudent or imprudent but, given the current state of constitutional discourse, actually required or prohibited by the Constitution.
But a text that notoriously can mean almost everything may come to mean nearly nothing. So Laurence Tribe”who ought to know”acknowledges “the possibility of making noises in the Constitution’s language that sound like an argument for just about anything,” and he frets that “the text of the Constitution can be read to justify just about any decision”and so can safely be ignored.” Other scholars wonder whether it is possible any longer to distinguish between parody and serious constitutional argument.
In short, those who come to modern constitutional discussions hoping to encounter the discursive rigor that “reason” connotes will instead find themselves lost in a sort of labyrinthine emptiness. Whether one considers the drearily stylized, solemnly insipid droning that so often emanates from the courts or the unmoored and turgid expositions of wearisome ideologies characteristic of more adventurous academic literature, there is very little in the discourse that merits the title of “reason.” By all indications, rather, modern constitutional discourse is a veritable Babel.
The comparison invites further reflection. In modern usage, “Babel” connotes confusion or unintelligibility. But the allusion also taps into a more searching myth that has fascinated humans almost from the beginning. Michael Oakeshott, who wrote two different essays entitled “The Tower of Babel,” observed that some version of the myth “is to be found among the stories of the Chinese, the Caldeans, and the ancient Hebrews, and among the Arab and Slav peoples, and the Aztecs of Peru. It has been told in the Greek, the Latin, the Celtic, and the Teutonic languages and in the tongues of those who for millennia have moved about the islands of the Pacific ocean.” The story’s universal fascination derives from its central theme: “It is concerned with earth and heaven; with men and gods and how they stand to one another.”
Although the best known version of the story is in Genesis, Josephus gives a more detailed account:
[After the great flood] God bade [Noah’s descendants] to send out colonies, that they might not quarrel with each other but cultivate much of the earth and enjoy an abundance of its fruits; but in their blindness they did not hearken to Him, and in consequence were plunged into calamities . . . . They, never thinking that they owed their blessings to His benevolence and regarding their own might as the cause of their felicity, refused to obey. Nay, to this disobedience to God’s will they even added the suspicion that God was plotting against them in urging them to emigrate, in order that, being divided, they might be more open to attack.
They were incited to this insolent contempt of God by Nebrodes, . . . an audacious man of doughty vigor. He persuaded them to attribute their prosperity not to God but to their own valor . . . . He threatened to have his revenge on God if He wished to inundate the earth again; for he would build a tower higher than the water could reach and avenge the destruction of their forefathers.
The people were eager to follow this advice of Nebrodes, deeming it slavery to submit to God; so they set out to build the tower with indefatigable ardor and no slackening in the task; and it rose with a speed beyond all expectation . . . . Seeing their mad enterprise, God was not minded to exterminate them utterly, because even the destruction of the first victims had not taught their descendants wisdom; but He created discord among them by making them speak different languages, through the variety of which they could not understand one another. The place where they built the tower is now called Babylon from the confusion of the primitive speech once intelligible to all, for the Hebrews call confusion “Babel.”
Modern allusions to “Babel” typically refer to the confusion that is the outcome of the story. But the story itself also explores the cause of that confusion. And it seems that the ultimate cause of the debacle, simply put, was human pride-pride not merely in the conventional sense of inordinate self-esteem but in the classic or Augustinian sense, in which pride denotes an attitude of revolt against providential governance with the aim of establishing human self-rule in its place. In more current terminology, the cause of confusion”of “Babel””was an overweening determination to realize human autonomy.
The most crucial parallel to Babel in constitutional law concerns the central role of pride. In considering the constitutional project, of course, we talk not about pride, but rather about reason. But the qualities tend to converge. Reason has been less an identifiable epistemological method than an attitude, or an aspiration of the human spirit; it has denoted, in Gellner’s words, “the overwhelming desire for a kind of self-creation.” In short, modern reason is ancient pride.
And indeed, a current of pride runs through the constitutional tradition from the beginning. At the outset, the founding generation manifested a buoyant but still constrained pride. The reason of Jefferson and Paine and of what Henry May calls the Moderate Enlightenment that informed the Constitution did not rebel against the providential order, but at most rejected the received ways of understanding that order”tradition, authority, revelation, scripture”in favor of trusting in fresh human intellect. So even the most fervently enlightened Americans exhibited a sort of epistemological pride”nothing more. Later, “reason” came to describe a more aggressive aspiration, repudiating the cosmic design and demanding the right to create the world for itself.
In constitutional discourse, with its stodgy diction of doctrine and precedent, pride is typically disguised. Still, manifestations of pride, at least in its more ordinary sense of conceit or presumption, have been discernible from the outset. Recall the boasts of Jefferson and Wilson that the Constitution was “unquestionably the wisest ever yet presented to men” and “the best form of government that has ever been offered to the world.” More recently, Ronald Dworkin has described judges as the “princes” of “law’s empire” and philosophers”“if they are willing,” as at least one of them apparently is”as the empire’s “seers and prophets.”
In the exercise of this prophetic calling, Dworkin in a recent book explains to a century of popes that they have misunderstood and misrepresented Catholic doctrines about abortion. And John Rawls asserts that a reasonable balance of competing interests will support a right to abortion at least in the first trimester; any religious or philosophical position inconsistent with this conclusion is peremptorily declared to be “to that extent unreasonable.”
As it happens, the issue of abortion in particular has recently elicited outpourings of presumption, not only by scholars but also by judges. Abortion has been debated endlessly by theologians, philosophers, lawyers, politicians, columnists, teachers, students, and citizens generally. Yet in Casey , three Justices”who had been placed on the Court, incidentally, during a period in which relative anonymity was a leading prerequisite for successful appointment”saw it as their right and duty to call “the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It turned out that the decision was not so much rooted in the Constitution as in the doctrine of precedent and”ironies begin to pile up at this point”in the Justices’ perception that a contrary decision would undermine the Court’s legitimacy by making it appear to be an institution influenced by politics. Nonetheless, the Justices gravely declared that “the character of a nation of people who aspire to live according to the rule of law” is ultimately to be measured by the people’s willingness to put aside their deeply held moral and religious views and accept the Court’s pronouncements on this and other divisive questions.
For many, like Robert Nagel, statements like these amount to “an extravagant expression of hubris.” Mary Ann Glendon foresees that the Casey opinion will be “remembered less for its result than for its grandiose portrayal of the role of the Supreme Court in American society.” Conversely, from a more detached or perhaps more cynical perspective, the Justices’ pronouncements might be merely a source of mirth, as when the family’s four-year-old emphatically declares that “I’ve decided we’re all going to Disneyland today,” and that the way to pay for the trip is to “just write a check.” But whether one finds the Justices’ self-important declarations infuriating or merely comical, the statements surely exude a remarkable presumption.
Still, the Casey opinion, like the statements by Wilson and Jefferson, Dworkin and Rawls, are most obviously manifestations of pride in the conventional sense. Do these pronouncements also reflect pride in the more classical sense as depicted in the Babel myth? More generally, the critical question is whether the constitutional project follows the same course and ends up at the same place as the Babel story. And the answer to that question, it seems, is more ambiguous.
If the Babel analogy holds true, the final outcome of pride”and thus of the presumption that for us goes under the names of “reason” or “constitutional discourse””would be confusion. There is ample evidence of confusion in current constitutional debates. So in this respect the parallel remains intact.
In other respects, though, the analogy may seem to break down. After all, the Babel story ends in disaster. No one can understand anyone else. The Tower is abandoned. The people are dispersed. The builders are punished for their pride.
The constitutional project, by contrast, seems so far to be at least a qualified success story. To be sure, if we concentrate on constitutional discourse, examining it for cogency or intellectual coherence, there is cause for frustration. But if we consider the overall political system that constitutional law has established and helped to govern, our assessment may change. Political problems and injustices abound, but the American political system does seem to have achieved a measure of freedom and economic prosperity unprecedented in human history. So the commitment to reason may seem to have paid off after all, and the analogy to the Babel project appears inapt.
But do our political and economic successes really vindicate the faith we have placed in reason? The question might prompt us to recall the insight of Reinhold Niebuhr, who more than once invoked the Babel myth as a metaphor for understanding American politics and history. The application of the myth was hardly limited, in Niebuhr’s view, to this country: “Man is constantly tempted to forget the finiteness of his cultures and civilization and to pretend a finality for them which they do not have. Every civilization and every culture is thus a Tower of Babel.” But the story has special force for us, he suggested, with our pretensions to reason.
Modern man is a rationalist who builds Towers of Babel without knowing it. If either moral pride or the spirit of rationalism . . . persuades us to establish a direct congruity between our good fortune and our virtue or our skill, we will inevitably claim more for our contribution to our prosperity than the facts warrant. This has remained a source of moral confusion in American life.
Niebuhr did not deny the political or economic achievements of American civilization. But he argued that our successes, real though they are, are neither as important nor as enduring as we may suppose. And the very significance of our accomplishments may lead us to overvalue them. “Human pride is greatest when it is based upon solid achievements; but the achievements are never great enough to justify its pretensions.”
The observation has a certain timely plausibility. We sometimes wonder whether our prosperity, though real enough (for some people), may have been purchased through injustice and oppression, like the elegant opulence of (some classes of) the antebellum South. Or the material prosperity and freedom we celebrate might from a more discerning perspective be merely vulgar and licentious”enticing but ultimately demeaning to the human spirit. Moreover, we are sometimes afflicted with a sense of impending crisis, lending force to Niebuhr’s observation that “one of the most pathetic aspects of human history is that every civilization expresses itself most pretentiously, compounds its partial and universal values most convincingly, and claims immortality for its finite existence at the very moment when the decay which leads to death has already begun.” Niebuhr’s statement is eerily similar to law professor Sanford Levinson’s speculation that “the ‘death of constitutionalism’ may be the central event of our time.”
But these disquieting reminders, even if apt, are also in a sense not sufficient to vindicate the Babel analogy. The Babel building project, after all, was an exercise in complete futility; it never did and never could attain, even in part, its objective of reaching heaven. By contrast, our achievements in freedom and prosperity seem both valuable and real, even if we sometimes exaggerate them and even if they may not endure to the end of time. If reason is responsible for these achievements, then perhaps it is unduly severe to dwell on their finitude.
But does reason deserve the credit for the liberty and prosperity this country has enjoyed? Niebuhr considered alternative explanations. One possibility was that the beneficial conditions that have prevailed in this country are largely attributable not to human reason and effort, but rather to providence. Though this explanation may seem inadmissible today, it would not have seemed so, Niebuhr observed, to the colonizing and founding generations. “Both the Puritans and the Jeffersonians attributed . . . prosperity primarily to a divine providence which, as Jefferson observed, ‘led our forefathers, as Israel of old, out of their native land and planted them in a country flowing with all the necessaries and comforts of life.’“
In the contemporary intellectual climate, of course, an account of the country’s successes that rests on the notion of “America as the darling of divine providence” is not likely to gain many converts. Niebuhr understood this. “Modern man’s confidence in his power over historical destiny prompted the rejection of every older conception of an overruling providence in history.” But Niebuhr had another suggestion: If we cannot admit providence as an explanation, perhaps we can accept fortuity instead. So he emphasized the degree to which “the wealth of our natural resources, and the fortuitous circumstance that we conquered a continent just when the advancement of technics made it possible to organize that continent into a single political and economic unit, lay at the foundation of our prosperity.”
Although in one sense fortuity seems the opposite of providential design, in another way the two accounts might converge. It hardly follows from the supposition of a providential design in history that finite human beings have the ability to discern the design. Not comprehending the grand plan, we would perceive historical happenings as random, disconnected, contingent. Perhaps fortuity is simply the face that providence wears when addressing us. And recognizing our inability to comprehend the cosmic plan, or even to know whether there is one, we should perhaps not try to see farther than we can. Indeed, the attempt to penetrate the face of fortuity might itself be a manifestation of unwarranted arrogance. So Niebuhr advised: “If it is not possible for modern man to hold by faith that there is a larger meaning in the intricate patterns of history than those which his own virtues or skills supply, he would do well to emphasize fortune and caprice in his calculations.”
But fortuity as a controlling force is at least as threatening as providence is to the project of governance in accordance with reason. “Providence” suggests that our affairs are in reality guided by something above or greater than human reason, while “fortuity” implies that the controlling agent is something beneath or less than reason; but either view renders illusory the notion that we are controlling our own affairs through the exercise of our own reason. So both the providence and fortuity accounts signal the futility of the constitutional project, at least in its loftier aspirations.
Has it turned out, then, that the common opinion reported by Machiavelli”that “worldly events are so governed by fortune and by God, that men cannot by their prudence change them””was correct? Should we renounce the effort to live by reason, abandoning ourselves to providence or fortuity?
Upon reflection, the prescription both follows from and is incompatible with our discussion of the Babel story. If history is governed by a providential plan, then presumably the very aspiration to live in accordance with reason, vain though it may ultimately be, is part of that plan. For those generations that lived during or after the Enlightenment, perhaps our role in the divine comedy calls upon us to act out the unenviable part of a self-important jester who has deluded himself into thinking he is king. The part is comically presumptuous, to be sure; but it would be equally presumptuous to suppose that we can defy the providential direction that has assigned us this embarrassing role. And we may glean some consolation by reflecting that for all we know, a self-deceived and high-sounding fool may be as essential to the overall plot as a sagacious hero.
Or perhaps there is no overall design, and blind fortuity rules. In that case, it seems that fortuity has blindly formed us in such a way that a commitment to “reason” is a part of our very identity. “Rationalism is our destiny. It is not our option,” Gellner observes with a sort of defiant resignation. “We are a race of failed Prometheuses.” We are what we are, and we will do what we will do; and for us, it seems, this means living”or trying to live, or at least pretending to live”by reason.
But this conclusion has a tendency to dissolve itself. What we are, in this fatalistic view, is a species that attempts to live in accord with what reason teaches. So if it turns out that reason teaches the futility of trying to live in accordance with reason, then it may be that we will abandon the life of reason after all. And if we do follow this course, then it also seems we cannot be defying any providential plan. On the contrary, the providential plan, if there is one, apparently will have ordained just this course for us. The plot will be the old, paradoxical one in which the fool finally becomes wise by renouncing his pretensions to wisdom.
So we end in a conundrum. And if there is any admonition that flows from this confounding conclusion, perhaps the admonition is that whatever we do, we should do it with humility. That at least was Niebuhr’s conclusion. Without denying the fact of human responsibility not only for our personal but for our collective fate, he insisted on calling attention to
the possibility and necessity of living in a dimension of meaning in which the urgencies of the struggle are subordinated to a sense of awe before the vastness of the historical drama in which we are jointly involved; to a sense of modesty about the virtue, wisdom, and power available to us for the resolution of its perplexities; to a sense of contrition about the common human frailties and foibles which lie at the foundation of . . . our vanities; and to a sense of gratitude for the divine mercies which are promised to those who humble themselves.
Steven D. Smith is the Byron R. White Professor of Constitutional Law at the University of Colorado at Boulder. This essay is drawn from his new book, The Constitution and the Pride of Reason , which has just been issued by Oxford University Press. Published by arrangement with Oxford University Press.