More than 'parchment barriers': the ethical center of American constitutionalism.

• Author: Federici, Michael P.
• Position: Law, Constitution, and Culture - Essay

Much has been written in the past century about the state of American constitutionalism and the political culture that serves as its animating force. Some scholars have argued that American constitutionalism has evolved so far from its founding principles that political practice today would be unrecognizable by the eighteenth-century Framers. These critics submit that the way to restore constitutionalism to its original form lies in insisting that public officials, and especially judges, abide by the Framers' constitutional intent.

Before one can assess such claims, it is necessary to analyze several aspects of American constitutionalism. We must understand not only what constitutionalism is, but also what is required to maintain a constitutional order over time. This analysis must include attention to the historical, theoretical, and ethical characteristics of constitutionalism. More specifically, it involves developing an understanding of the relationship between liberty and power as well as that between the written and unwritten constitutions. Within the context of the unwritten constitution, central problems of order are discovered. These relate to the kind of character and personality required of political leaders and citizens alike for constitutional government to be possible. (1)

Relating the insights that follow from an analysis of the unwritten constitution to recent American politics, it becomes evident that the movement away from the Framers' decentralized republic toward a highly centralized mass democracy is due to what some political theorists call deculturation or degeneration. American political degeneration is illustrated by the increasing tendency to substitute the political ideas of Hobbesian or Rousseauistic naturalism for the Framers' assumptions about human nature and political life. These types of naturalism tend to view human beings and politics in abstract ahistorical ways that undermine the moral realism that gave rise to American constitutionalism. One of the consequences of this substitution is not only the centralization of power but the proliferation of public policy that replaces inner (i.e., ethical) control with social (i.e., state) control. Taken together, these characteristics mark a crisis of American constitutionalism that is especially evident in judicial politics. It would seem premature, then, if not imprudent, to suggest that the restoration of American constitutionalism can be inspired by the doctrine of originalism as if the problem were a matter of intellectually embracing abstract principles or subscribing to a particular method of constitutional interpretation.

For the restoration of American constitutionalism to be possible, the political culture underlying American politics will have to be infused with the kind of moral realism that gave it life in the eighteenth century. The restoration of moral realism will itself require the presence of individuals who possess what Claes Ryn calls the "constitutional personality," comprising the personality type and imagination that make constitutionalism possible in the first place. Only if this personality type should again become prevalent in American politics would something like originalism have any chance of shaping political conduct. With such individuals setting the tone in society, it is more likely that a historical rationalism and romanticism will be avoided and that political life will be conducted as an attempt at creative renewal of America's constitutional experience. In this way American constitutional history can become a living past that incorporates historical experiences of sound order in contemporary political life by deeply embedding them in imagination and consciousness. When change is necessary, leaders who possess the constitutional personality are equipped to build on the experiential foundation of the American past in a way that synthesizes old and new. Change can flow from continuity with previous generations of Americans who, in their particular circumstances, groped toward the continuation and further realization of civilized life. This is to argue for a brand of originalism that maintains fidelity to the Framers' constitution by making their achievement not the end or culmination of the quest for a justly ordered political community but a fundamental part of an ongoing effort to promote the common good and an ethically centered life. (2)

Power and Liberty

The relationship between political power and liberty is paradoxical. On the one hand, as John Jay states in Federalist 2,

[n]othing is more certain than the indispensable necessity of government; and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights, in order to vest it with requisite powers. To avoid anarchy, some degree of liberty must be forfeited. On the other hand, government cannot be trusted in every instance to use power in accordance with justice and the common good. Lord Acton's dictum that "power tends to corrupt, and absolute power corrupts absolutely" points to the danger of unbridled political power. (3) In short, governments must have adequate power to govern but not so much power that tyranny results. This insight is not mathematical in nature. Rather, it provides a sense of proportion, a general impression of what is prudent given human flaws and the seduction of power. It rests on a classical-liberal view of human nature and human society connected to the older classical and Christian view of the human condition. While Acton's dictum supports limited government, it does not explicitly say why he finds government necessary, which is to check and restrain human will and appetite. Still, the need for government is implicit, for, if Acton is correct that human beings need to be limited and checked when they wield power, it follows that they must likewise be limited and checked when they exercise liberty. Human nature being a mix of higher and lower inclinations, power and liberty considered in the abstract are morally neutral. They acquire their moral or immoral quality from the type of human will that utilizes them in specific human actions. The quantity of power available to governments (something that written constitutions define) matters, as Acton suggests, but it matters less than the quality of character of those who exercise power (something that is influenced by the unwritten constitution). Tyrants rule tyrannically not simply because they have tremendous power and tend to expand it at every opportunity, but because they use the power at their disposal for purposes that are inconsistent with the proper ends of politics, such as justice, happiness, and virtue. In some circumstances (e.g., a dire national security crisis) it may be possible for a political ruler to exercise, temporarily, a degree of power that exceeds the limits set by the constitution, and may even come close to unlimited power, without using that power tyrannically. As a general rule, however, it makes sense to limit and check the power of government because even in the case of dire emergencies it is difficult to imagine power that is nearly absolute being exercised in accordance with justice. Acton's statement about power is followed by the comment that "Great men are almost always bad men." This may push the point too far, but it is generally consistent with Madison's view expressed in Federalist 47 that concentrated power is the very definition of tyranny. Madison's skepticism regarding concentrated power is qualified somewhat as well as justified, in part, by his statement in Federalist 10 that "Enlightened statesmen will not always be at the helm."

In his "Letter to a Member of the National Assembly," Edmund Burke addresses the problem of power and liberty by pointing to the existence of a direct relationship between liberty and ethical restraint:

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters. (4) Influenced by Burke, the Harvard professor Irving Babbitt (1865-1933) emphasizes that liberty has moral and cultural prerequisites that emanate from the ethical center of mankind's inner life. Men and women are intuitively aware of an ever-present conflict at the center of their experience between two competing qualities of will. Morally unconstrained will, which Babbitt terms "vital impulse" (elan vital), is toward self-indulgence or arbitrariness for oneself or one's group. The "higher" or "ethical" will, which is a constant will to promote the universal good, is experienced in particular situations as an "inner check" on merely selfish impulse or as "vital control" (frein vital). For Babbitt, as for Burke, liberty is possible and desirable to the degree that morally constrained will is prevalent in a particular society. To the degree that man's merely impulsive self predominates, however, more control by government becomes necessary. (5)

In short, political and social order depend on the influence in society of universal values that are, obviously to varying degrees, represented in religious, artistic, philosophical, and political traditions and insights. Political philosophers refer to moral universality in variegated language. Heraclitus refers to the common (xynon), Plato to the ground of being (aition)...