The instinctive conservative response is to reject the idea of the living constitution for various and conflicting reasons.
One such reason 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. 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 conservatives champion 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 for what old people are. Certainly, we do not respect their wisdom that comes from experience because that alleged prudence is what slows down 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 praises 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.
The Framers thought their Constitution was quite the disruptive innovation when it comes to unprecedented protection of liberty. The lessons they learned from the Greeks and Romans were mainly negative, just as they thought that the existing state governments they meant to largely displace were often 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.
The Framers 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 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. He even complained that most Athenians were unable to understand him and his needs because they were not philosophic. Socrates behaved as well as he did and had a 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 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, nor is it 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 gained some of the traditional veneration that used to be accorded to the British constitution. The British constitution 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 concerning nature, rights, and so forth in the Declaration of Independence.
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 chosen by anyone, and we’re nostalgic for its good effects without having any way to bring it back to life. 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.