Does Have A Constitutional or A "Declaration of America " Soul? Independence
By Thomas G. West. Posted
What were the original principles of the American Constitution? Are those principles true?
Many historians and political scientists write about the first question. Scholars are never shy about telling us what happened in the dead-and-gone eighteenth century. But few of them think it is even worth discussing whether the Founders' principles are true. For example, in a review of my book Vindicating the Founders, historian Joseph Ellis accuses me of having committed "sins of presentism." My error, as he cleverly puts it, is believing "that ideas are like migratory birds that can take off in the eighteenth century and land intact in our time." Ellis does not even try to refute the Founders' principles or their arguments, summarized in my book, regarding property rights, women's rights, and welfare policy. For him, it is enough simply to dismiss my endorsement of their arguments and ideas as "bizarre."1
But what if some ideas — I mean true ones — really are like migratory birds that can land intact in any century? What if the principles of the founding are as true today as they were two centuries ago? In other words, why does Joseph Ellis, and the whole chorus of the academic establishment, assume that the principles of the founding are not true today?
Students and admirers of Leo Strauss are among the few political scientists who write seriously about whether the Founders' principles are true. Strauss made this possible by convincing them that political philosophy in the classical sense is possible, that human reason may be capable of discovering the truth about the good society. Anyone who approaches the Founders from this perspective is likely to be open to their way of thinking, which took for granted that reason can figure out the principles of justice by observing and reflecting on the human condition.
Strauss argued that the principles of classical political philosophers like Plato and Aristotle remain the standard for us today. When his students approach the founding, therefore, they tend to judge it against the standard of the classics. This immunizes them against becoming mindless cheerleaders who uncritically celebrate the founding. It also prevents them from arrogantly assuming that just because we happen to live in the twenty-first century, we are wiser than the supposedly less-enlightened past.
Harry Jaffa and Harvey Mansfield are two of the ablest among those whose study of
Who is right,
At a conference on modern freedom in
There are two main obstacles to the understanding of the Jaffa-Mansfield disagreement.
First, in some circles
In contrast to
I admire both men.
But I also admire
Leo Strauss once called for "unhesitating loyalty to a decent constitutionalism and even to the cause of constitutionalism."5
The Case for
The Hobbesian idea, which, according to
That is what
Constitution as Remedy for Natural Rights
Far from despairing over this gloomy picture,
I paraphrase: The Constitution was written to secure the natural rights named in the Declaration. But once written, it took on a life of its own, independent of the doctrine that gave rise to it. The Constitution, and no longer the principle that "all men are created equal," now became our regime, our arche or principle, our authoritative beginning that shapes and forms us and makes us what we are. We now understand ourselves (or once did),
The Case for
Even if we admit that there is some tiny number of men who are sufficiently godlike that they could be trusted with absolute power without consent, it would still not establish a politically relevant claim. For,
Plato's Republic is imaginary precisely because, according to Plato himself, philosophers do not wish to rule, and anyone wishing to rule is not a philosopher. Anyone who asserts a right to rule on the basis of his claim to wisdom is accordingly condemned in advance as a charlatan by philosophy itself. . . . Philosopher-kings are not possible, and genuine philosophers will always prefer a regime of equality under the law.19
Jaffa is saying that the classical argument for government without consent is refuted by the classics themselves, leaving us with the conclusion that the esoteric teaching, as it were, of the classics is that all men are created equal! This paradoxical claim should not perhaps come as a surprise. For
So far the argument for equality is that humans, however rational they may be, are also passionate. But the other side of this argument is equally important: however passionate humans may be, they are also rational. According to
Christianity as Problem
The problem in question is well understood by
Christianity as (Part of the) Solution
We have seen how Christianity — the Founders would say Christianity wrongly understood — created a political problem unanticipated by Aristotle, and how social compact theory responds to that problem. But
Locke's theological project, far from being animated by "hostility to religion," as
Locke's teaching, which was embraced by almost all the leading politicians and preachers in the founding era, interpreted both revelation and reason as supporting the rights of mankind, religious toleration, government by consent, and the moral virtues of courage, moderation, justice, and honesty. Far from being excluded from political life, revelation as interpreted by Locke is an indispensable part of Lockean politics.
Morality, Religion, and the Exercise of Rights
Lockean politics, according to
It is true, for the good reasons we have already noted, that Lockean politics does not aim as high as Aristotelian. But
If the Founders really believed that government has a duty to avert its gaze from the way rights are exercised, it would be wrong for government to ban homosexual marriage, or the right to have sex with one's mother, father, sister, brother, son, or daughter. But Locke says that adultery, sodomy, and incest are called sins because "they cross the main intention of nature, which willeth the increase of mankind, and the continuation of the species in the highest perfection," which requires procreation and stable heterosexual marriages.39 The Founders agreed.
Locke and the Founders say government may and should support religion, although it may not use coercion against those who fail to agree with the government's preferred religion. Liberals say government may not promote religion in any way.
Locke says (and the Founders agreed), "no doctrines adverse and contrary to human society, or to the good morals that are necessary to the preservation of civil society, are to be tolerated by the magistrate." James Wilson, a leading member of the Constitutional Convention of 1787, wrote,
[Nuisances are] crimes and offenses which attack several of those natural rights [of individuals. They are] a collection of personal injuries, which annoy the citizens generally and indiscriminately . . . [such] that public peace, and order, and tranquillity, and safety require them to be punished or abated. . . . To keep hogs in any city or market town is a common nuisance. Disorderly houses are public nuisances. . . . Indecency, public and grossly scandalous, may well be considered as a species of common nuisance. . . . Profaneness and blasphemy are offences, punished by fine and by imprisonment.40
Liberals today say all opinions must be tolerated (except perhaps conservative opinions that create a hostile environment in the workplace, or the opinions of rich people who spend "too much" money publishing their views of candidates for elections).
Morality and religion are indispensable conditions of freedom, as well as of human happiness, as founding era documents repeatedly proclaim.The Northwest Ordinance of 1787, for example, famously said, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."41
But when Locke says, in the Letter on Toleration, that "the care, therefore, of every man's soul belongs to himself," he does not mean that the care of the soul is a matter of indifference. Locke's point is the exact opposite. "Obedience is owed first to God, then to the laws," he writes. Precisely because "those eternal things" are supremely important, everyone "ought to place all his care" in "investigating and performing" the things necessary for the salvation of the soul. Therefore "no one can so far abandon the care of his own eternal salvation as to embrace under necessity a worship or faith prescribed by someone else."
Is the Constitution Alone Sufficient to Produce a "Constitutional Culture"?
The social compact principles of Locke and the Founders are quite robust in their moral implications, as the above quotations indicate and as the Founders' own words and deeds confirm.44 Yet
Locke, the Founders, and Mansfield all agree on the need for a "constitutional culture" to sustain the Constitution. In Federalist 49,
In his First Inaugural Address, Lincoln insisted that the fundamental institution of the Constitution was free elections. He pointed out that the South, by seceding, was trying to overturn an election of a president of whom they did not approve. But the South was deaf to Lincoln's pleas, because they felt that they could no longer live as fellow citizens with people who condemned their core institution of slavery as evil. Lincoln was able to rally Northern opinion to the cause of liberty and save the Constitution by relentlessly recalling the principles of the Declaration that gave life to the Constitution. Without those principles, why should anyone have cared about whether or not an election was overturned, especially if that was the price of avoiding bloodshed? Why would anyone have cared about whether slavery was extended or not? Without
Tocqueville's Democracy in America is an impressive book, but on this central theme of American political history it is grossly deficient. Tocqueville never mentions the Declaration of Independence anywhere in his two volumes. He never discusses the social compact theory of the founding. Whether that is because he did not understand it, or because he chose not to talk about it, does not matter. Tocqueville equated democracy in
I remember vividly the first time I ever heard Tocqueville criticized by a teacher I respected. I was a brand new graduate student sitting in Harry Jaffa's office in
Aristotle and the Prepolitical Beginnings of Politics
The perspective from which
Now it is true, as
Robert Kraynak, a student of Mansfield, argues that Mansfield's approach to politics "is properly called prudential — an approach which seeks the best possible means for attaining perfection of the soul in a world that is inherently imperfect because it is marred by fallible and sinful human nature."
Although I respect Kraynak's conscientious attempt to assimilate
The Equality Doctrine: Both True and Useful
I began with a discussion of why
Modern liberalism, as John Dewey and its other originators conceived it, is the enemy of individual rights in the Founders' sense. Dewey goes so far as to say that in the context of the twentieth century, the Founders' understanding of rights is evil. Dewey also disparages the importance of government by consent of the governed. Elections really do not matter for Dewey. Democracy is not about elections and consent, nor is it about securing the right to liberty. It is rather "that form of social organization, extending to all the areas and ways of living, in which the powers of individuals shall . . . be fed, sustained, and directed" by government.56 Liberalism therefore prefers government by supposedly neutral, supposedly scientific "experts" largely insulated from the interference of public opinion and elected officials.57 Liberals have long seen the Constitution, as it was originally understood, as their enemy; thus their indifference or hostility to "original intent."
Believers in the Founders' idea of equality, on the other hand, are the strongest supporters of the Constitution. Clarence Thomas is the Supreme Court justice who is most faithful to the text and spirit of the Constitution. The reason is that Justice Thomas, uniquely among those now on the Court, sees an intimate connection between the principles of the Declaration, which are the principles of individual liberty, and the text of the Constitution. In other words, Thomas respects the Constitution not just because it is a law, not just because it was adopted by the majority, but because it is good. As Thomas explained in a 2001 lecture at
When I was at EEOC [the Equal Employment Opportunity Commission, in the 1980s], rather than have speechwriters, . . . I had political theorists around me. And we would debate every day the political theory underlying the . . . founding of our country. . . . So we would think these things through-most of them happen to be Straussians-and read. . . . But what we were trying to do is think through what protects individual liberty most, and that began the interest [in federalism and the Constitution].58
Liberals like Dewey understood perfectly that a people attached to the natural rights of the founding will also be a people respectful of the limited government established in the Constitution. If the Founders' principles are rejected, and if the text of the Constitution is understood apart from those principles, then fidelity to the original meaning of the Constitution becomes a matter of indifference. The Constitution can then be used as an empty vessel into which the new, more advanced liberal view of justice can be poured. Liberals call this the "living" Constitution.59 What they mean is that the Constitution as it was actually written is dead.
The problem of slavery,
The presence of slavery in the Constitution of 1787 appears to give liberals strong ground from which to reject the Constitution's original meaning as a guide to the present. Al Gore suggested in the campaign of 2000 that George Bush's "original intent" justices would be pro-slavery. Gore knew that this is literally false, but in a larger sense, Gore, like most liberals, believes that the original Constitution, as a product of a racist, sexist, elitist, and homophobic time and place, deserves to have no moral authority in today's
Bush had no answer to Gore's accusation, but
When demagogues relentlessly attack the Constitution, appeals to the constitutional text and its forms are not enough. The liberal critique of the principles of the Constitution must be answered by a theoretical defense of those principles. The principles of the Constitution must be shown to be just, for, as
As my final witness in favor of
In The Spirit of Liberalism, published almost twenty-five years ago,
I conclude that
Those who are disgusted with the prevailing relativism and historicism that dominate academic discourse today can find in this magnificent debate a reliable guide back to the principles of the founding and the Constitution — principles rarely understood, often attacked by those who benefit from them the most, often incompetently defended by their well-wishing friends, and still perhaps the last best hope for rational liberty in our time or any other time.
1 Joseph J. Ellis, "Who Owns the Eighteenth Century?" William and Mary Quarterly 57 (2000): 417-21. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Lanham, Md.: Rowman & Littlefield, 1997). (Return)
8 Taming the Prince: The Ambivalence of Modern Executive Power (New York: Free Press, 1989), 185, 195. (Return)
9 Alexis de Tocqueville, Democracy in America, trans. and ed. Harvey C. Mansfield and Delba Winthrop (
15 Strauss, What Is Political Philosophy? (New York: Free Press, 1959), 49-50, and Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 248-51. There is reason to believe that some of Strauss's apparently moralistic denunciations of Locke were deliberate exaggerations. See West, "
18 Jaffa, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War (Lanham, Md.: Rowman & Littlefield, 2000), 69; statement of the town of Malden, Massachusetts, 27 May 1776, quoted in New Birth, 122. (Return)
23 The Federalist Papers, ed.
37 Thomas G. West, "Vindicating John Locke: How a Seventeenth-Century 'Liberal' Was Really a 'Social Conservative,'" Witherspoon Lecture, Family Research Council,
40 Locke, Epistola de Tolerantia: A Letter on Toleration, ed. Raymond Klibansky, trans. J.W. Gough (Oxford: Clarendon Press, 1968), 131. I have modified the translation here and elsewhere. Works of James Wilson, ed. Robert McCloskey (Cambridge: Harvard University Press, 1967), 2:670-71. (Return)
54 Robert P. Kraynak, "The Care of Souls in a Constitutional Democracy: Some Lessons from Harvey Mansfield and Alexander Solzhenitsyn," in Educating the Prince: Essays in Honor of Harvey Mansfield, ed. Mark Blitz and William Kristol (
57 Dewey, "The Future of Liberalism," Journal of Philosophy 22 (1935): 225-30, repr. in Howard Zinn, ed., New Deal Thought (Indianapolis: Bobbs Merrill, 1966), 31. Dewey, Liberalism and Social Action (orig. pub. 1935; repr.
58 Woodrow Wilson, "The Study of Administration," 1886, in Papers of Woodrow Wilson, ed. Arthur S. Link (Princeton: Princeton University Press, 1968), 5:363, 368-70; James M. Landis, The Administrative Process (orig. pub. 1938; repr.
60 Democratic presidential candidate Al Gore, in the final debate before the Super Tuesday primary election, said: "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people." Quoted in Cal Thomas, "Constitution Evolution," NandoTimes.com,
* Originally presented at a Roundtable on Harvey C. Mansfield, sponsored by The Claremont Institute, at the American Political Science Association annual meeting,
I thank those who read earlier drafts and made suggestions, most of which were adopted: Larry Arnn, Edward Erler, Christopher Flannery, Matthew Franck, John Grant, Thomas Karako, Thomas Krannawitter, Steven Lenzner, Kevin Portteus, and Michael West. (Return)