AMERICAN CONSTITUTIONAL THEORY AND HISTORY: IMPLICATIONS FOR EUROPEAN CONSTITUTIONALISM.

• Author: Pilon, Roger
• Position: Report

It is perhaps not impertinent to suggest that American constitutional theory and history, owing to the longevity of the document that is their subject, hold lessons for constitutionalism everywhere, but especially for European constitutionalism--die more recent and ever evolving treaties that serve as a "Constitutional Charter" for the European Union. An American constitutionalist looking east today, seeing everything from Brexit to Grexit plus the reactions in European capitals, must be struck by the tension in the EU between exclusion and inclusion in its many forms, including individualism and collectivism. Those themes underpin my discussion here. The issues surrounding them are universal. They are at the heart of the human condition.

In America we wrestled with them at our founding over 200 years ago, again in the aftermath of our Civil War, and yet again with the advent of Progressivism, which culminated in our New Deal constitutional revolution. And we are still wrestling with them. Because America was founded on philosophical principles--First Principles, coining from the Enlightenment--it is particularly appropriate that we look at that experience to shed such light as we can on this more recent European constitutional experience.

But my more immediate concern is this: In liberal democracies today--nations constituted in the classical liberal tradition--we see the same basic problem, albeit with significant variations. It is that the growth of government, responding mainly to popular demand, has raised seemingly intractable moral and practical problems. First, increasing intrusions on individual liberty; and second, the unwillingness of people to pay for all the public goods and services they are demanding. Therefore, governments borrow. And that has led to massive public debt that saddles our children and grandchildren, to bankruptcy, and to the failure of governments to keep the commitments they have made.

In Italy, we need only look east, to the birthplace of democracy. But Greece is not alone in this. Nor are we in America immune. Cities like Detroit have gone bankrupt. So too, just recently, has the American territory of Puerto Rico. The state of Illinois has a credit rating today just above junk status, and Connecticut and New Jersey, among other states, are not far behind. At the national level, America's debt today exceeds $20 trillion--that's trillion--more than double what it was only a decade ago. And our unfunded liability vastly exceeds that (Cogan 2018).

What has this to do with constitutionalism? A great deal. Constitutions are written, after all, to discipline not only the governments they authorize but the people themselves. The point was famously stated by James Madison ([1788] 1961), the principal author of the U.S. Constitution. "In framing a government which is to be administered by men over men, the great difficulty lies in this," he wrote: "you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government," Madison concluded, "but experience has taught mankind the necessity of auxiliary precautions."

The principal such precaution, of course, is a well-written constitution. But no constitution is self-executing. It is people who ultimately execute constitutions. In the end, therefore, the issue is cultural, a point I will come back to.

America's Founders were deeply concerned with the problem of undisciplined, unlimited government. After all, they had just fought a war to rid themselves of distant, overbearing government. In drafting the Constitution, therefore, they were not about to impose that kind of government on themselves. In fact, during the ratification debates in the states, there were two main camps--the Anti-Federalists, who thought the proposed Constitution gave the government too much power, and the Federalists, who responded by pointing to the many ways the proposed Constitution would guard against that risk. The Federalists eventually won, of course, but the point I want to secure is that there was not a socialist in the group! There were limited government people, the Federalists, and even more limited government people, the Anti-Federalists.

So under a Constitution that has not changed that much, how did we go from limited to effectively unlimited government? The answer lies in the fundamental shift in the climate of ideas that began with Progressivism at the end of the 19th century, which the New Deal Supreme Court institutionalized in the 1930s. To illustrate that, I will first look closely at America's founding documents: the Declaration of Independence, signed in 1776; the Constitution, ratified in 1788; the Bill of Rights, ratified in 1791; and the Civil War Amendments, ratified between 1865 and 1870, which corrected flaws in the original Constitution. Together, those documents constitute a legal framework for individual liberty under limited government, however inconsistent with those principles our actual history may have been.

I will then show how progressives rejected the libertarian and limited government principles of America's Founders and how they eventually turned the Constitution on its head, not by amending it but through political pressure brought to bear on the Supreme Court. The problems that have ensued include the ones just noted: less liberty and increasing debt. But perhaps of even greater importance, for eight decades now the Supreme Court has struggled to square its post-New Deal decisions with the text and theory of the Constitution. That amounts to nothing less than a crisis of constitutional legitimacy.

And again, the basic reason for that crisis is the fundamental shift in outlook. Many Americans today no longer think of government as earlier generations did. Whereas the Founders saw government as a "necessary evil," to be restrained at every turn, many today think that the purpose of government is to provide them with vast goods and services, as decided by democratic majorities.

The Importance of Theory

I come, then, to the first important point I want to flag. You cannot understand the U.S. Constitution unless you understand the moral and political theory that stands behind it. And that was outlined not in the Constitution but in the Declaration of Independence (Sandefur 2015). The Constitution was written in a context, as were the later Civil War Amendments, and that context was one of natural law, Anglo-American common law, and even elements of Roman Law, all of which are captured succinctly in those famous words of the Declaration that I will quote in a moment. Indeed, President Abraham Lincoln's famous Gettysburg Address, written in the throes of a brutal Civil War, begins with these words: "Fourscore and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal." Lincoln was reaching back to the Declaration, not to the Constitution.

Yet no less than my good friend and Italy's gift to American constitutionalism, the late Justice Antonin Scalia, all but dismissed the Declaration as "philosophizing," contrasting it with the Constitution's "operative provisions" (Scalia 1997: 134). And his conservative colleague when the two served on the nation's second highest court, the late Judge Robert Bork, wrote drat "the ringing phrases [of the Declaration] are hardly useful, indeed may be pernicious, if taken, as they commonly are, as a guide to action, governmental or private" (Bork 1996: 57). Is it any wonder that there is constitutional confusion in America today when the document that is essential to understanding it plays little or no part in drat understanding?

Let me now flesh out the argument by focusing on the underlying moral, political, and legal principles at stake, after which I will offer just a few reflections on how those principles might illuminate issues in the European context. Again, I want to show how the shift from limited to effectively unlimited government took place in America, despite very few constitutional changes. I should note, however, that it will be some time before I get to the Constitution. If a proper understanding of the Constitution requires a proper understanding of the theory behind it, and if that theory is found implicitly in the Declaration, then that should be our initial focus, and will be for some time. That will take us into some of the deeper reaches of moral and political theory, the aim being to better understand the Constitution itself--and especially the broad principles that underpin it.

The first thing to notice about the American constitutional experience is how relatively different its beginnings were from those of many other nations. Constitution making and remaking often take place in the context of a stormy history stretching back centuries, even millennia. By contrast, America was a new nation. We came into being at a precise point in time, with the signing of the Declaration of Independence. To be sure, American patriots had to win our independence on the battlefield. And before that we had a colonial history of roughly 150 years. But America was created not by a discrete people but by diverse immigrants with unique histories all their own.

A second, crucial feature distinguishing America's constitutional experience is that it unfolded during the intense intellectual fennent of the Enlightenment, including the Scottish Enlightenment, with its focus on the individual, individual liberty, and political legitimacy, all of which reflected the sense of "a new beginning." Indeed, the motto on the Great Seal of the United States captures well the spirit of America's origins: Noms ordo seclorum, "a new order of the ages."

The Declaration of Independence

Let us turn, then, to that new order, as outlined in the Declaration. Penned near the start...