“We are at the beginning of great troubles.”
Once upon a time, it was the assumption of most of the people in the world that the fundamental constitutions of their society would endure to the end of time; or at least for a very great while; or certainly for the lifetime of those who had recently become adults. But events since 1914 have destroyed that expectation in country upon country, culture after culture. Whole peoples have been uprooted and transplanted or perhaps extirpated complex patterns of life have been devastated or totally supplanted; political systems have vanished almost without a trace; classes have been effaced, ancient rights abolished, the cake of custom ground to powder. Constitutions written and unwritten have been abolished over night by conventions of political fanatics, and innovating substitute constitutions in their turn have been expunged within a few years, making way for yet more novel political structures no less evanescent. Even Britain has experienced considerable constitutional alterations during the past quarter of a century, particularly in local government.
Among the great powers, only the American Republic, during the past seven decades, has not deliberately altered its general frame of government—neither the formal written Constitution of the United States nor the unwritten constitution that, in the phrase of Orestes Brownson, “is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state.” I say “deliberately”—implying that the American people, as represented in the Congress and in the state legislatures, have not approved very large changes in the political structure; nor have they, as a people, endorsed large innovations in the complex of customs, conventions, and prescriptions that compose the unwritten constitution. It is true that several amendments to the federal Constitution have been ratified; but none of these, not even the two extending the franchise, greatly altered the general political structure. Many state constitutions have been revised, and of course technological, economic, demographic, and moral alterations outside the strictly political pattern have produced large social consequences.
Nevertheless, the formal federal Constitution framed in 1787 still functions for the most part; and the large majority of American citizens still take for granted the mass of customs, conventions, mores, and social convictions that amount to an unwritten constitution, and which generally are older than the written Constitution of 1787. In short, in America, we have known no political revolution, violent or accomplished without force, for two centuries; nor have we consciously swept away old ways of living in a community so that we might conform to some brave new ideological design.
In this seemingly complacent account of our conservative ways, have I not omitted something important? Indeed I have: The strong tendency of our courts of law, the Supreme Court of the United States in particular, to remold our political and social institutions nearer to judges’ hearts’ desires. Since the Second World War especially, federal courts have succeeded in so interpreting both written and unwritten constitutions that bewilderingly large political alterations have been worked—changes that the Congress probably would not have enacted for its own part, at least not nearly so soon as the courts decreed them; changes unwelcome to a great many Americans, and sometimes at least mildly repugnant to the majority of citizens, I shall have more to say about judicial interpretation a little later. Just now I remark merely that we see today a reaction against large-scale constitutional alteration by a judicial aristocracy or council of elders, the Ephors of Washington. It becomes conceivable that means may be found to persuade the Supreme Court to remember the venerable doctrine of judicial restraint.
So we stand as a political nation in the late 1980s, strongly attached to old ways of managing public affairs, rejecting all proposals for thoroughgoing revision, holding inviolable certain documentary and even architectural symbols of the national experience. Probably the considerable majority of Americans today assume that our national constitutions will endure for time out of mind; that the political order, at least, which the present generation knows, will be known also by their grandchildren and great-grandchildren; that in times past, other nations may have fallen low even as Nineveh and Tyre, but that the United States of America, as a system of order and justice and freedom, is immutable.
This is a natural presumption, the power and prosperity of this nation in the closing years of the twentieth century considered. Not since 1812 has the continental United States had to repel foreign troops; there has occurred no catastrophic interruption of domestic tranquillity since 1865; the economy has become a cornucopia, with only infrequent, occasional, and partial interruptions of its bounty; and the courts, the Congress, the state legislatures, and the executive force busily have conferred new rights, entitlements, and privileges upon large classes of citizens. New constitutional rights are discovered or proposed annually; next to nothing is said about constitutional duties. How could this constitutional order ever come to an end?
Such, no doubt, were the sentiments of the inhabitants of the Roman empire near the end of the Antonine age, although already Marcus Aurelius had great difficulty in raising revenue sufficient to defend the northern frontiers and greater difficulty still in repelling, sword in hand, the barbarian hosts. Roman history no longer being taught in American schools, the public is unaware of such parallels; there are few readers of such studies as Freya Stark’s Rome on the Euphrates, which traces convincingly the fashion in which a great power decayed for lack of imagination; and most professors and publicists still appear to fancy that more emancipation from oldfangled moral restraints, and more generous public largesse (so like the old Roman liturgies) would relieve us of worry and work. But I lack time to cry O tempora! O mores! adequately. Kipling’s lines must suffice, a single stanza:
On the first Feminian Sandstones we were promised the Fuller Life
(Which started by loving our neighbour and ended by loving his wife)
Till our women had no more children and the men lost reason and faith,
And the Gods of the Copybook Headings said: ‘The Wages of Sin is Death.’
No civilization endures forever; no national constitution can of itself sustain a people bent upon private pleasures, asking not what they can do for the country, but what the country can do for them. So I venture upon some speculations concerning the future of American politics—signifying by the word “politics” not partisan controversies, but constitutional establishments, custom and convention, political principles.
I speculate in the manner of Edmund Burke, at once the most imaginative and the most practical of writers and doers in our political tradition of the English-speaking peoples: Burke, the philosopher in action. I do not mean that you and I can peer through dead men’s eyes. It would be absurd—though a good many people are given to asking such questions—to inquire, for instance, “What would Burke have said about the Strategic Defense Initiative?” One can surmise very well what Burke would have said about Soviet ambitions, but in his time, statesmen were not required to study nuclear fission. Nor is it profitable to quiz some historian after this fashion: “If Daniel Webster had been born black in Tiajuana, would he have gone to the U.S. Senate?” Presumably not; but then he would not have been the historic Webster, merely another man by the same name. Every soul is unique, and no soul is wholly independent of the circumstances in which its mortal envelope exists. So I am not proposing, “If Burke were elected President of the United States in 1988, would he …?” Rather, I am asking you to put on the mind of Burke with me: To look at the future of American politics as he looked at the future of European politics in his day—with wonderful prescience, as affairs turned out.
I choose Burke as our guide for this time-travel because, in the words of Harold Laski, “Burke has endured as the permanent manual of political wisdom without which statesmen are as sailors on an uncharted sea.” Or, to quote Woodrow Wilson, “Burke makes as deep an impression upon our hearts as upon our minds. We are taken captive, not so much by his reasoning, strongly as that moves to its conquest, as by the generous warmth that steals out of him into our hearts.”
In his Reflections on the Revolution in France, his Appeal from the New Whigs to Old, his Thoughts on the Present Discontents, and other writings and speeches, Burke has much to say about constitutions, the British Constitution in particular—though not one word, friendly or hostile, about the American Constitution of 1787. Very succinctly, though (I hope) not superficially, I offer you some observations of Burke upon healthy and unhealthy constitutions of government; and then let us try to apply these reflections, so far as they are pertinent to our own age, to prospects for the constitution (in its larger sense) of the United States.
Burke’s first constitutional principle is that a good constitution grows out of the common experience of a people over a considerable lapse of time. It is not possible to create an improved constitution out of whole cloth. As he declared in his speech on the reform of representation (1782), “I look with filial reverence on the constitution of my country, and never will cut it in pieces and put it into the kettle of any magician, in order to boil it, with the puddle of their compounds, into youth and vigor. On the contrary, I will drive away such pretenders; I will nurse its venerable age, and with lenient arts extend a parent’s breath.” An enduring constitution is the product of a nation’s struggles. Here, Burke is echoed by one of his more eminent American disciples, John C. Calhoun, in his Disquisition on Government: “A constitution, to succeed, must spring from the bosom of the community, and be adapted to the intelligence and character of the people, and all the multifarious relations, internal and external, which distinguish one people from another. If it does not, it will prove, in practice, to be, not a constitution, but a cumbrous and useless machine, which must be speedily superseded and laid aside, for some other more simple, and better suited to their condition.”
A truth that Burke emphasizes almost equally with the preceding “organic” concept of constitutions is the necessity of religious faith to a constitutional order. “We know, and, what is better, we feel inwardly, that religion is the basis of civil society, and the source of all good, and of all comfort,” he writes in Reflections on the Revolution in France. “We know, and it is our pride to know, that man is by his constitution a religious animal; that atheism is against, not only our reason, but our instincts; and that it cannot prevail long.” An established church is required—parallel with “an established monarchy, an established aristocracy, and an established democracy…. All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.” The fist clause of the First Amendment to the federal Constitution, and the American circumstances which produced that clause—Burke’s “dissidence of dissent, and the Protestantism of the Protestant religion”—had forestalled any established national church in the United States, three years before Burke published his Reflections. But the First Amendment and curious interpretations of its first clause by the Supreme Court in this century leave us today in some perplexity.
A third point in Burke’s constitutional principles which needs to be noted here is his emphasis upon the function of a natural aristocracy, in which mingle both “men of actual virtue” (the “new” men of enterprising talents) and “men of presumptive virtue” (gentlemen of old families and adequate means). It is this aristocracy, “the cheap defense of nations,” that supplies a people’s leadership. (In a more grudging fashion, a similar apology for aristocracy is advanced by John Adams.) Burke asserts also the necessity for an “establishment of democracy”; he is the most practical eighteenth-century advocate, indeed, of popular government. Nevertheless, “A true aristocracy is not a separate interest in the state, or separable from it,” Burke writes in his Appeal from the New Whigs. “It is an essential integrant part of any large body rightly constituted.”
Fourth—and here we must confine ourselves to four of Burke’s constitutional arguments, although there are several others deserving of discussion—Burke contends that the good constitution maintains a balance or tension between the claims of freedom and the claims of order. Natural law is a reality, and from natural law flow certain natural rights; but government does not exist merely to defend claims of personal liberty. The “Rights of Man” claimed by the French revolutionaries are impossible to realize, unlimited, in any civil social order. “By having a right to everything they want everything,” Burke writes in his Reflections:
Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom. Among these wants is to be reckoned the want, out of civil society, of a sufficient restraint upon their passions. Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, a swell as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection…. In this sense the restraints on men, as well as their liberties, are to be reckoned among their rights.
On no point of political theory in America does greater confusion exist than upon this question of “human rights” as set against the need for restraints upon will and appetite.
So much for four principles of constitutional order that recur in Burke’s speeches and writings over three decades.
This is the first part of a two-part essay (find part two here).
Republished with gracious permission from Modern Age (Spring 1987).
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