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Robert A. Goldwin and William A. Schambra, eds.: How Does the Constitution Secure Rights?  Washington and London: American Enterprise Institute for Public Policy Research, 1985.

Originally published in Interpretation: A Journal of Political Philosophy. Volume 14, Numbers 2 & 3, May and September 1986. Republished with permission.

 

The discrepancy between political speeches extolling rights and the unrighteous deeds of political men has not gone unremarked. Some of this discrepancy results simply from the difference between theory and practice. But much of it does not. Most regimes today fail to defend rights. Their rulers give every sign of unwillingness or inability to do so. Their citizens—and that is scarcely the term—have almost no civil recourse against tyrannical abuses. Because the United States Constitution does not merely mention rights but actually helps to secure them, understanding it can make “a valuable contribution to the safety and happiness of the people of the world.” The editors have selected six essays intended to strengthen that understanding—three by ‘liberals,’ three by ‘conservatives.’

The first two essayists present historical interpretations of Constitutional rights, focusing on James Madison’s campaign to add the first ten amendments, the Bill of Rights. Historian Robert A. Rutland writes that Madison “became the father of the Bill of Rights” when hostile voters threatened to reject the Constitution in its original form. Rutland argues that public opinion and the “national and state bills of rights” are reciprocally influential. He goes so far as to call the Constitution a “living, breathing document” for this reason, although his one example of this (that we are no longer have slaves) required nothing less than a civil war and an amendment to be effected, as we lived and breathed.

Rutland evidently regards the Bill of Rights and the Fourteenth Amendment (as interpreted by twentieth-century Supreme Court justices) the principal Constitutional guardians of Americans’ rights. Public opinion alone rarely protects our rights adequately, he contends. Abolitionists, religious zealots, suspected Confederate sympathizers, IWWs, pacifists, conscientious objectors, “supporters of the newborn Soviet Union,” labor leaders, and women’s suffragists were “denied” their civil liberties until the Supreme Court “spread [the] broad umbrella of the Fourteenth Amendment to cover all public speech and action that do not immediately threaten the peace. To this day, public opinion “can never be ignored” in our republic, but public opinion continues to favor abridgement of rights; accordingly, “the Supreme Court and an executive branch dedicated to the preservation of our individual rights must be strong enough to withstand the vagaries of public opinion,” which “today is not nearly so well informed” as in previous eras. Rutland deplores apathy, indifference, and the Reagan Administration. He remarks a “wide difference between public opinion and the more advanced judicial interpretations of certain civil rights,” although the meaning of ‘advancement’ becomes obscure when the ‘liberal’ faith in progressive enlightenment dims.

The late political scientist Herbert J. Storing contradicts Rutland’s prime assumption by denying “the common view that the heart of American liberty is to be found in the Bill of Rights.” In his campaign for the Bill of Rights, Madison intended to seal the Antifederalists’ defeat by separating them from “the large group of common people whose opposition did rest, not on fundamental hostility to the basic design of the Constitution, but on the broad fear that individual liberties were not sufficiently protected.” Storing doubts that the Bill of Rights makes Americans’ rights any more secure. Without it, “our courts would probably have developed a kind of common law of individual rights to help to test and limit governmental power.”

To use the Bill of Rights as a “set of maxims to which people might rally” is to risk “undermin[ing] stable and effective government.” The Federalists identified “the main political business of the American people” not as self-protection against political power but as self-government. “Even rational and well-constituted governments need and deserve a presumption of legitimacy and permanence,” Storing maintains, echoing Madison. Persistent recurrence to the Bill of Rights as if it were a statement of maxims or ‘first principles’ can interfere with this presumption, and thus with the practical business of republican self-government. Accordingly, the Bill of Rights comes “at the tail” of the Constitution, not the beginning. “The Bill of Rights provides a fitting close to the parenthesis around the Constitution that the Preamble open. But the substance is a design of government with powers to act and a structure arranged to make it act wisely and responsibly. It is in that design, not its preamble or its epilogue, that the security of American civil and political liberty lies.” One might even infer that Storing suspects some enthusiasts of the First Amendment go so far as to use it to further amend the Constitution without popular consent.

The second two essayists discuss contemporary ways of interpreting the Constitution. Law scholar Owen M. Fiss contends, first, that “rights are no premises, but conclusions” emerging “through a process of trying to give concrete meaning and expression to values embodied in an authoritative legal text,” and second, that “a new form of constitutional adjudication has emerged,” coinciding with a newly-emerged set of rights. Called “structural reform,” this form of adjudication assumes that “the operation of large-scale organizations” threaten “our constitutional values” more formidably than individuals do. It further assumes that these organizations must be restructured, an assumption “reflect[ing] a healthy skepticism about the existing distribution of power and privilege in American society.” The reformers intend to “create a new status quo.” Their enterprise “requires a measure of activity on the part of the judge that is at odds with the picture of him as a passive umpire, simply choosing between two neighbors.” The judge now “becomes the manager of a reconstructive enterprise.” Fiss charges that the older “dispute resolution” model of judicial conduct “begin[s] with indifference toward public values or ignorance of them.” He does not substantiate this charge.

A familiar objection to such vigorous activity by judges is the rhetorical question, ‘Who elected them?’ Fiss replies that judges and courts form part of our political system, which is based upon consent. Judges’ authority rests not on “some personal moral expertise, of which they have none, but on the process that limits their exercise of power and constitutes the method by which a public morality must be construed.” This process involves dialogue, responsibility, and independence. One might note that although the power bringing independence also brings responsibility—the more powerful you are the more you are responsible for—it does not thereby bring the responsibility meant by the phrase, “sense of responsibility.” Further, a keen sense of responsibility can yield different, even opposite, results depending upon the public morality a judge derives from his authoritative legal text. Fiss himself suggests some of this by conceding that the judiciary itself becomes bureaucratized–itself becomes one of those dangerous, large-scale organizations—when given so much to do. Worse, “the danger is ever present that judges will temper their idealism and their commitment to justice by what is realistic. He colors the picture darkly: “They will negotiate [he warns]; they will bargain; they will become adaptive.” That is to say, having become politicized, judges get political.

Political scientist Walter Berns considers current notions of judicial conduct to be unusual, even irregular and eccentric. Under the Constitution, judges “owe their independence to the framers’ judgment that only with it could they effectively exercise the power that by natural right belongs to someone else, the constituting people” who ordain, establish, and amend the Constitution. Judges today nonetheless “create rights,” doing so “openly and avowedly,” using the Fourteenth Amendment as if it empowered the courts instead of Congress to provide the substance of privileges and immunities. Until the 1925 case Gitlow v. New York, the Bill of Rights and the Fourteenth Amendment had not been conjoined. But subsequent judges have made up for lost time.

Far from commending ‘idealism,’ the American founders sought “to devise a system in which moral differences would not become political issues.” The Founders, Berns argues, conceived of rights in the modern way, as natural rights discovered in a nature with no telos except self-preservation and with such subsidiary rights (notably liberty) as self-preservation entails. Without spurning declarations of right, the Founders never supposed mere declarations sufficient. The defense of natural rights requires an artificial structure “designed to ensure that the country will be governed not by simple majorities but by constitutional majorities, majorities that respect constitutional limitations that are defined by private rights.” This defense also requires another kind of artificial structure, a civil society sufficiently extensive and commercial to contain diverse interests, none strong or fanatical enough to dominate the others. While not noble, this “great modern project” is “not ignoble”; it encourages liberty, prevents tyranny. Berns warns that “while rights, properly understood, can be secured, not all wants can be satisfied.” These wants include the ignoble wants of criminals, but they also include some of the noble wants of moralists. Berns tempts us to think the latter at least as dangerous as the former.

The assertion that human beings have not only the right to eat but the right to be fed combines the ‘low’ concern for survival with the ‘high’ language of ‘idealism’ in a manner that may be peculiar to our time. Few moralists before now could regard governmental alleviation of hunger as a superior moral undertaking. Charity has earned praise for centuries, but enforced charity, charity as a demand based upon “subsistence rights,” appears mostly on recent lists of moral goods. Political scientist Henry Shue praises a document called the “International Bill of Rights.” The “core rights” set forth therein are rights to “minimum economic security.” He emphasizes the obligatory rather than the libertarian character of rights; “the whole point of having rights is to limit the liberty of other people by imposing duties,” justifiable demands, upon them. Having the right to life, for example, means you can justifiably demand that I refrain from killing you. “Subsistence rights” extend the right to life to contemporary circumstances, wherein human beings control nature to a larger degree than ever before. Famine is no longer so much an act of nature as an act of men; “specification of sensible, well-informed principles for the allocation of responsibility is, I think, one of the central tasks of contemporary political philosophy.”

Shue criticizes the Reagan Administration’s replacement of “human rights” with “political rights” that foster “Cold War goals.” He charges the Administration with hypocrisy because, he claims, it overlooks human rights abuses by such allies as Turkey and the Marcos regime in the Philippines while condemning abuses in the Soviet bloc. “Genuine subsistence rights [are] betrayed in the pursuit of illusory ideological gains”—illusory because the Soviets see our hypocrisy and therefore will not change their unjust tune. Leaving aside the question of whether the Reagan Administration actually has overlooked human rights abuses by allies, and leaving aside the pretty claim that the Soviets might repent if only they thought us sincere, it must be said that She here fails to argue consistently. If, given the extent to which men have conquered nature, famine now ranks as a political crime—Stalin in the 1930s, Mao in the 1950s, and the Marxist rulers of Ethiopia today serve as obvious examples of this—then one cannot ignore the political or “ideological” reasons for the decision to cause famine. Attempting to separate “human rights” from “political rights” makes no sense if human beings are political animals who act differently in regard to “subsistence rights” when their conceptions of “political rights” differ. If commercial republics rarely or never deliberately cause famine, and if other regimes do, then the issue of political rights is an issue of human rights. If, moreover, certain kinds of regimes that spurn commercial republicanism (e. g., communist regimes) wield considerably more power than certain other kinds of regimes that also spurn commercial republicanism (e.g., right-wing dictatorships) then there is no hypocrisy or even inconsistency in concentrating one’s public attention on the former and not on the latter. The decision to do so involves prudential deliberation and may be called into question by prudential deliberation. But to make that decision primarily a matter of rights undermines the exercise of the practical judgment that defends rights.

John Locke might associate “subsistence rights” as Shue conceives them with patriarchalism. For example, Confucius tells the Chinese emperor to feed the people, who are his ‘children.’ The absence of state-guaranteed “subsistence rights,” as distinguished from the natural right to consume the fruits of one’s labor, perhaps reflects Locke’s reservations about the ruler-as-father, reservations originating in the philosopher’s dislike of tyranny and his esteem for human industry. In the volume’s most substantial essay, Nathan Tarcov examines the conception of rights seen in the Declaration of Independence and the Constitution. He finds it more individualistic than Shue does, but not simply individualistic.

Tarcov observes that the Declaration of Independence speaks of both individual and collective rights. But the latter exist to secure the former. A “people,” in the Declaration, does not mean an organic entity, a race or nationality. Shared sentiment helps constitute a people, but that is not enough. A people constitutes itself by its acts: emigration to a new land, the acquisition of that land by labor and by the risk of individuals’ lives and fortunes. “The acts of naturally free individuals, in particular the expenditure of life, liberty, and property that by nature belong to each of them, are what constitute a people. The Declaration recapitulates and reconfirms that ultra-Lockean origin by its final pledge of signed individuals’ lives, fortunes, and sacred honor.” Although Tarcov is surely right to call this definition of a “people” ultra-Lockean, one should also notice that the Declaration’s closing formulation—lives, fortunes, and sacred honor—differs significantly from its opening formulation—life, liberty, and the pursuit of happiness. Go so far as to concede that the pursuit of happiness means the attempt to acquire property (a concession that decisively confirms the Declaration’s Lockean character, although it is not a concession that needs to be made), and you still cannot accurately contend that “sacred honor” makes sense in Lockean terms. The sanctity of honor sounds far more aristocratic than anything Locke endorses, and more careful research is needed to fix the meaning of this evocative phrase.

This notwithstanding, Tarcov clearly shows the relation of individuality to collectivity in the Declaration. The Constitution, he argues, embodies an analogous relation between the country and humanity. Universalist and humanitarian, Constitutional rights inhere in human nature itself “but their security is primarily something each people must accomplish for itself.” Locke teaches that “civil society has the right to secure the rights only of those who have consented to it”; accordingly, “we have believed that American patriotism is the most effective form of philanthropy.” American nationhood, then, directly serves the rights of the individuals who consent to participate in it while indirectly serving (by example) the vast numbers of human beings who cannot participate in it. Against those who contend that the Fourteenth and Fifteenth Amendments fundamentally alter the Constitution’s moderate individualism, Tarcov observes that “the amended Constitution protects the rights of individuals against violation on the basis of their race, not rights of racial or ethnic groups as units”; “the interests of classes derive from the more fundamental property rights of individuals.” Constitutional majorities rule not as classes (as the Athenian demos did) but as shifting coalitions of individuals and interests whose views re refined and enlarged by their elected representatives. Extensive use of the power of judicial review to effect policy thus undermines the very constitutionalism it depends upon—by stripping constitutional majorities of their proper function.

Tarcov distinguishes the natural rights of individuals protected by the Constitution from natural right as propounded by classical political philosophers. Classic natural right involves the distribution of goods, the direct cultivation of virtues, the fostering of political unity, and the teaching of truth. The classical politeia “is the form taken by a political community, determined by who rules it. The dominant characteristic of the ruling part determines both the political goal of the whole regime and the personal goals of the individuals in it. This conception reflects the view that political rule is natural. The American conception of a constitution, in contrast, is that of a fundamental law, preferably written in a single document, understood as the expression of the will of the whole people. The Constitution grants powers of government from the natural rights of individuals, not so that some can rule others or form their goals, but so that the remaining rights of all can be more secure.” The Constitution does not constitute a classical timocracy (Federalist #8 explicitly contrasts the agricultural and commercial pursuits of the American states with the ancient republic, a “nation of soldiers”), an oligarchy (“Securing property rights is of special advantage not only to the wealthy but to those who would acquire wealth”), or a classical democracy.

Tarcov does not mean that the Constitution recommends blinding ourselves to the question of the desirability of our several desires. While securing rights, the Constitution is “compelled to distinguish lawful from lawless desires.” “Exclusive reliance on rights generates irritable litigiousness and empty yearning. Our public discourse is impoverished if we only invoke our rights and never debate what is good for us, if we only assert our right to pursue happiness and never discuss what would make us happy.” In protecting the right to speak by means that reward civility and rationality, the Constitution subtly orients some American souls toward distinctively human happiness and away from either the irritable self-righteousness of men who mistake themselves for gods or the appetitive yearnings of men who mistake themselves for beasts. Both these mistakes incline men to tyranny.

Forrest McDonald: Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University of Kansas Press, 1985.

Walter Berns: In Defense of Liberal Democracy. Chicago: Gateway Editions, 1984.

 

The distinguished historian Forrest McDonald has earned his reputation as a less than star-struck chronicler of the American founding. The distinguished political scientist Walter Berns equally has earned his reputation as an unenchanted observer of the drift away from that founding. Yet their criticisms issue from different premises, and thus present a challenge to each other as well as a rebuke to fashionable illusions.

In an earlier book, ironically titled E Pluribus Unum [1], McDonald questions what he calls nationalist “fictions” about the American founding: that the Revolutionary War aimed at national, not states’ independence; that the Articles of Confederation were unworkable and contributed to the collapse of “public and private morality” (as Publius contended); that the Founders were “demigods.” Along the way he delivers a number of amusing jibes, particularly about Virginians (“Because they often found it difficult to feed their slaves, they embraced humanitarianism….”). There are excesses, as when he dismisses James Madison as “at base… a brittle, doctrinaire theorists,” but beneath it all McDonald wants to find the truth even more than he wants to polemicize. He differs from many Southern writers in preferring the nationalist position even as he deflates nationalist mythology. There is a flaw, inevitable in any reductionist argument, no matter how measured: at the end of his apparent demonstration of the Founders’ profound disunity, he cannot quite explain how they produced a system that worked. Instead, he calls it “the miracle of the age, and of the succeeding age, and of all ages to come.” If “the wheel of history turns on petty pivots” all the time, then any lasting success at all must be attributed to incredible good fortune or amazing grace.

In Novus Ordo Seclorum McDonald undertakes to understand the Founders as they understood themselves. This presents not so much an interpretive problem—McDonald rejects the fashionable pessimism of ‘deconstructionists’—as a historical one, namely, making sense of the Founders’ many and apparently contradictory principles. He identifies four of these: the intention to protect citizens’ lives, liberty, and property; the intention to establish a republican government; the use of history as a source of evidence for their arguments, as a legacy, and as a stage on which their own reputations might find a place; and the appeal to modern political theory, particularly as enunciated by Hume, Harrington, Locke, and Montesquieu. These are less principles than rubrics containing many “ingredients,” some of them “incompatible.” In the first half of the book, McDonald tries to separate these ingredients and to demonstrate their incompatibility. In the second half he describes the properties of the compound resulting from their mixture.

McDonald tend to somewhat exaggerate theoretical contradictions among the Founders’ philosophic sources. For example, he contrasts Locke’s idea of property, based on nature, with Blackstone’s based on the king’s dominion. He rightly observes that Blackstone regards the source of kingly dominion as rather mysterious, teaching moreover that once the king has granted property, rights to it are beyond his reach except by means of due process. But McDonald does not draw the obvious conclusion: in practical terms, this argument makes Blackstone’s idea of property similar to Locke’s, and, in theoretical terms, the mysteriousness of the origins of kingly property leaves an opening, so to speak, for modern natural right. McDonald generally does not sufficiently allow for the philosophic writer’s need of prudence in such matters. He attempts to prove Locke a pious Christian simply by quoting theistic passages from his works; and he identifies Montesquieu with the argument for ‘virtuous’ or classical republicanism. Occasionally, even relatively straightforward arguments are garbled in paraphrase, as when he claims that Locke “sanctioned” slavery “under certain conditions”; in fact, in chapters 23 and 24 of the Essay on Civil Government the philosopher describes slavery among the Jews not as slavery at all but as a form of “drudgery” whereby any physical abuse of the servant was legal cause for liberation. At another key point in his argument, McDonald unaccountably describes the Lockean social contract as an agreement between the people and a prince, not among the people themselves.

Having said this, one should also say that the core of McDonald’s book—his chapters on Alexander Hamilton’s adaptation of the political economy of Smith and Steuart, on the tensions between “virtuous” and commercial republicanism, and on the relation of the Founders’ Humean theory of the passions to the governmental device of federalism—will clarify and deepen any reader’s knowledge of the American founding. The chapter on passion and federalism deserves particular notice. Many writers have expounded on the American Founders’ refusal to rely upon “the kind of public virtue required by classical and puritanical republicanism” while nonetheless insisting upon the need for certain common decencies often called ‘bourgeois virtues.’ But this cannot explain the character of the Founders themselves, of subsequent American statesmen, or of whatever it is in the character of the American people that enables them to respond to those statesmen with courage and self-sacrifice. McDonald recalls that certain modern writers did not imagine the ‘low but common ground’ to be a sufficient condition for civil society. He cites the neo-classical playwright and essayists Joseph Addison (his Cato was admired by George Washington), who emphasizes the importance of honor, the esteem of wise and good men, as a firmer ground for statesmanlike behavior than is virtue itself. Shaftesbury, Hume, and Smith advance parallel teachings: McDonald overlooks their source, Locke’s Some Thoughts Concerning Education, wherein esteem is presented as virtue’s basis, particularly among the class of gentlemen. The passion for honor finds institutional support in hereditary aristocracies; McDonald identifies John Dickinson as the Founder who saw the American states as “institutional substitutes” for the English baronies—”in a manner of speaking,” the states are “permanent and hereditary.” Dickinson “therefore proposed a mixed system,” wherein, for example, the House of Representatives represents the nation and the Senate represents the States, making the latter “as near as may be to the House of Lords in England.” One might add that the American federal structure resembles the English mixed regime as the modern version of honor resembles classical and Christian virtues. These resemblances cause McDonald to call the American Constitution “the culmination of a tradition of civil humanism that dated back more than two millennia.” Thus even as he emphasizes discontinuities among the Founders’ principles, McDonald works another ‘miracle’ of unity. “Tradition” plays much the same role in ‘conservative’ thought as Hegel’s Absolute Spirit plays (in various guises) in liberal and leftist thought: as an intellectual deus ex machina, ‘saving the phenomena’ at the expense of the principle of non-contradiction.

But perhaps the American founding is not so miraculous, in part because it is not so full of contradictions. “It should be obvious from this survey that it is meaningless to say that the Framers intended this or that the Framers intended that: their positions were diverse and, in many particulars, incompatible”; moreover, “no delegate or coalition of delegates was able to dominate the [Constitutional] convention except for brief periods and on specific issues,” a fact resulting in “repeated compromises.” This restates the century-old description of the Constitution as a bundle of compromises. McDonald’s argument limps because it has sustained a logical fall: he fails to see that a compromise itself represents an intention, albeit perhaps a modified intention. Contracts work that way: negotiation, compromise, deal. Thus when McDonald claims that “abstract speculative doctrines… were of limited use” to the Founders, that “experience, both their own and that of their mother country, provided a surer guide,” he inflates a distinction into a dichotomy. Theory as such does not ‘intend’ to be useful. Modern theory, often identical to method, does ‘intend’ to be useful, but not usually in any formulaic way when it comes to founding a political regime. As the failures of such men as Comte and Spencer show, even the moderns must rely on prudence, whereby moral and political principles may be brought to bear upon practice without any illusion of melding theory and practice. [2] Moderns attempt to substitute ‘History’ (‘conservatives’ read ‘tradition,’ libertarians ‘the invisible hand,’ the left ‘dialectic’) for prudence. As long as historians adhere to historicism, they will misunderstand statesmanship.

No historicism colors Walter Berns’s In Defense of Liberal Democracy, wherein he undertakes the Aristotelian task of strengthening the decent regime under which he lives. He does this not by seeking to ‘adapt the United States Constitution to his ‘time,’ but “in part and to the extent possible, to keep the times in tune with the Constitution.” The book’s five parts contain chapters on the principal issues facing American republicanism: the Constitution, foreign politics, domestic politics, “racial politics,” an “religion and politics.”

Berns conveys the Founders’ political realism more vividly than any other commentator on the Constitution. He has a healthy contempt for the high-flown. Thus he recognizes the Constitution without the Bill of Rights would nonetheless secure rights by its prudent balancing of governmental powers, but the Bill of Rights without the body of the Constitution would among to little more than a list of good intentions. By emphasizing ‘ideals’ instead of institutions, recent Supreme Courts have contorted the doctrine of judicial review and, not incidentally, overstepped their own institutional functions. Berns stresses the limited and even problematic role of judicial review in the modern political philosophy upon which the Constitution largely rests. Hobbes, Locke, and Montesquieu respected lawyers little more than they did priests. Modern natural law reduces lawyers to equality with other men because it regards all men as essentially equal, none more naturally fit to rule than the others. To the moderns, “no man can rationally agree to an arrangement where another man is authorized to convert his opinion into fundamental law.” The American judiciary enjoys more power than the great moderns would permit, but only if judges restrict to speaking for the Constitution—an organization of political institutions based upon consent—and not for themselves, for their own privately-held ‘ideals.’

Berns identifies the underlying tension between the so-to-speak theoretical realism of the moderns and the realities of American life in the 1780s: “More, of course, than the principles of modern natural right and law went into the founding of the United States. In theory, the country was founded by men claiming rights against each other; in fact they were men closely associated in families, churches, and a host of other institutions.” These institutions formed the character of Americans. Such character and institutions may have no place in modern ‘realism,’ but modern ‘realism’ needs them. A country “founded on the principle of self-interest… could not be expected to flourish if it consisted only, or mainly, of self-interested men.” But the problem may be more subtle than this. Berns says that modern natural right finds equality and unalienable rights self-evident, by nature. But this is not what the Declaration of Independence says. The Declaration calls it self-evident that all men are created equal, endowed by their Creator with certain unalienable rights. The Founders’ idea of self-evidence goes beyond Lockean self-evidence, and even beyond a moral sense; it posits what might be called a metaphysical sense (reportedly much to the annoyance of principal author Thomas Jefferson, who had included no religious language in his draft). This moral and metaphysical sense strongly resembles Christian conscience, although it would be a mistake simply to identify the two. In the Declaration, the Founders enunciate a public or politic conscience. The tension between Christianity and modernity remains, but there can be no question that the Founders worked to moderate it.

Berns vigorously shows how the American compromise between Christian and modern thought unravels when ‘idealist’ sentiment exerts too much pressure on institutional safeguards. Fear animates American pacifists more than faith does, and their hoped-for world government could end only in despotism, rule by fear. In politics, ‘love’ is not enough, because “experience shows” that Christians “are more likely to love their neighbors when their neighbors are like themselves.” “Religious faith seems to unite men but divide mankind,” Berns drily remarks. As for existing institutions, the United Nations cannot quite overcome certain formidable obstructions to universal humanitarianism, most notably the Soviet Union.

In American domestic politics, the problems of pornography and violence escape the obvious antitoxins, censorship and capital punishment, because libertarianism allies with a tolerant or ‘soft’ Christianity to dull the instruments of justice. Shame and anger are the passions that prevent liberty from descending to license; they hold men responsible. Because the American Constitution acknowledges the sovereign power of “We, the People,” not to God, “it is only a short step from the principle that the laws are merely a product of one’s own will to the opinion that the only consideration that informs the law is self-interest; and this opinion is only one remove from lawlessness.” Berns cites Lincoln on the Constitution as an inheritance of our fathers, worthy of veneration, but Lincoln centrally appeals not to the veneration of the old but to the truths or “propositions” of the Declaration, without which the work of Americans’ fathers would be no more venerable than the monarch they rebelled against—or, as the Declaration puts it, the monarch who rebelled against them and indeed against Creation itself.

Veneration of the law, its principles, and its framers has never been conspicuous in American “racial politics,” to which Berns devotes a section separate from ordinary domestic politics. In one of his most substantial essays, Berns charges that the Constitutional provision to restrict the importation of slaves suffers from an ambiguity exploited cynically by Southern politicians, including Jefferson and Madison. Today, unfortunately, attempts to counteract the longstanding effects of such willful distortion rest on much the same contempt for constitutionality. Worse still, mere hypocrisy has given way to ideology, as the school of “legal realism” tries “to persuade us that the essence of the judicial process does not consist in interpreting law… but in making it.” The attempt defeats itself, because ‘realism’ regarding law cannot but reflect upon its self-proclaimed makers, whose actions, intentions, and authority then become fair, broad targets for political deconstructionists.

In the book’s final part, Berns argues that contemporary religious zealots make the same mistake in a different way. They denigrate the law not by arbitrarily seeking to make it, but by arbitrarily seeking to transcend it. In calling conscription immoral (for example), the U. S. Catholic bishops put lay Catholics “in the position [someday] of having to choose between obeying either their spiritual advisors or the law of the land,” a dilemma likely to weaken the authority of both. The dilemma mirror Americans’ “acceptance and simultaneous rejection of modernity,” their eager pursuit of self-interest and community feeling.

If McDonald’s neo-Burkean historicism causes him to underestimate the intellectual coherence of American statesmanship at the time of the founding, Berns’s emphasis on the Constitution’s theoretical underpinnings occasionally causes him to overlook the exact character of the Founders’ statesmanlike adaptation of modern political philosophy. Writing about statesmanship is nearly as difficult as practicing it.

 

NOTES

1. Forrest McDonald: E Pluribus Unum: The Formation of the Republic 1776-1790. Boston: Houghton Mifflin Company, 1969. Reissued in 1979 by Liberty Press, Indianapolis.
2. For an excellent critique of McDonald on precisely this point, see Charles Kesler’s untitled review in The American Spectator, Volume 19, Number 5, May 1986, pp. 35-36.