Some Reflections on the American Constitution

As the basis of our government, it ought never be forgotten that the Constitution is more than a text, a historical document, or an expression of political phi­losophy. It is fundamental law, enforceable in courts in all its provi­sions as the law of the land superior to any other law, as over five hundred volumes of United States Reports monumentally emphasize. All is lost if we forget that the Constitution is the Law, the monument to justice that is conjured in the phrase, a government of laws and not of men.

Yet nearly as much may be lost if we forget that the Constitution is more than merely law, even the supreme Law of the Land. The tri­umph of the framers was to see beyond the narrow vision of the “au­tonomy of the law” and recognize that dogmatic proclamation of the law as the law–sovereign command based in will and de­manding obedience¹–would not secure the blessings of liberty or establish justice, which was their intention for America.

Fortescue’s and Coke’s theory of the law as perfect justice and virtue was accepted as intellectually valid and spiritually necessary. The founding genera­tion’s utterly determined resistance to tyranny–from the British before Independence and the rapacious minorities or uncaring majorities afterward–is evident in the historical records as the motivation for the calling of the Federal Convention and later the structure for the ratification de­bate and adoption of the Bill of Rights.

The range of problems that emerge at this point arise from the par­adoxical status of human existence itself and from nothing less than that. The fruits of man’s emphatic insistence that he is more than merely mortal and participates in things eternal, the realm of tran­scendent divine Being as philosophers say, are eagerly sought, yet only imperfectly realized in temporal existence.

Neither God nor beast, neither merely mortal nor simply immortal, the human realm is the In-Between reality of perfections glimpsed but only fleetingly attained, of happiness interspersed with boredom, disappointment, and despair, redeemed by faith and hope–if it be redeemed at all. In short, we behold the human condition familiar to Everyman from all available sources of insight.

Erecting a Political Order Fit for Habitation

Confronted with such a picture of reality, what does the political realist do?

With allowances for the unique features of time and place, he does just what the American founders did.

An intrinsically para­doxical existence cannot be remedied by pretending it is less contra­dictory than it is without impaling oneself on the horns of existential dilemmas that produce the parade of reductionist ideologies, whose grotesque idolatries disfigure and torment modern mankind.

The point is to erect and preserve a political order fit for habitation by human beings. Thus, Publius and his associates remember Fortescue’s golden words that “the king is given for the sake of the kingdom, and not the kingdom for the sake of the king,” and that “freedom was instilled into human nature by God,”² even as they write their own golden words.

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government.

But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

In framing a government which is to be administered by men over men, the great difficulty lies in this: 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; but experience has taught mankind the necessity of auxiliary precautions.

Opposition and Rivalry Make the System Work

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordi­nate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other–that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.³

While the virtue of the people is the primary guarantee of just gov­ernment, the auxiliary precaution of checking and balancing within functionally separated (but overlapping) powers pits self-serving pas­sion against passion, thereby producing just and rational rule: Aris­totle’s rule of law–when God and reason alone rule–as far as this is possible in human governance.

Through this three-way process of cancellation effected by the interaction of Congress, president, and courts, reason emerges as a noble residue of the ordinary operation of government when regulated by the central constitutional mechanism. This is the best we can do in an imperfect world. Nor is high purpose abandoned, for we have seen Publius insist that “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”⁴

Plausible means to achieve noble ends were employed to ingeniously struc­ture the American constitutional institutions. They were rooted in a sound concep­tion of human nature and remain sound today. Institutionally, the governmental structures as they operate become the means of utiliz­ing the well-attested corruptions of human beings simultaneously to curb their worst tendencies and to drive the engine of a government dedicated to justice–reluctant assistants to reason and good inten­tion in ordering human affairs.

A Highly Developed Civic Consciousness

This strategy, however, can only succeed as a supplementary means of serving virtuous ends. The integrity and virtue of the people must remain the primary force shaping civic consciousness as the “first order of reliance.”⁵ Civic consciousness is highly differentiated in the founding period by reason of long self-government and attendant de­velopment of an indigenous common law and traditions of gover­nance;⁶ the sense of public spirit fostered by a pervasive congregationalist church polity; and the sense of equality, dignity, and self-reliance generated by social and economic circumstance.

Civic consciousness is highly differentiated, above all, by re­ligious teachings of a Bible-centered faith premised on the priesthood of all believers⁷ and by decades of scrutiny by Americans of public policies and public officials that both engrossed their attentions and educated them as the quarrel with Britain intensified after 1760.

In its operations, then, the American political order of separated, checked, and balanced central powers and divided powers throughout the federal system concretely compose an “invitation to struggle,” as Edward Corwin aptly de­scribes it. This is most especially true of relations between the presi­dent and the Congress regarding policy direction and control, as is verified every day in news reports.⁸ The system works as the found­ers intended it would. Efficient government was not their first pri­ority, Chief Justice Warren Burger once remarked.

The highest and noblest things can only indirectly concern govern­ment in this scheme. Life, liberty, and happiness self-evidently arise and are fulfilled in wider horizons than society and government reach. They relate to the natural and transcendental dimensions of human existence whose reality and truth, while superior and controlling in social and political affairs, still cannot finally be arbitrated politi­cally–hence, the notion of rights protected by but not originating in the Constitution.

Hence, also, is found the great solution to the vexed problems of religion relating to the First Amendment as well as the exhortations of such stalwarts as Madison and Jefferson–and throughout their lifetimes–that churchmen stay out of politics and that government keep out of reli­gion and not intrude between the consciences of free men and their Maker.

To pursue happiness and the ultimate fulfillment of mind and spirit certain social, economic, and political institutions and processes are vital.  However these but supply the infrastructure of fruitful and happy lives of individual men and women who are also citizens, for it is the individual person who stands at the center of public concerns in America.

The attaining and enjoyment of happiness are subtle matters of personal disposition in religion, no less than in other spheres of the mind. Free government properly plays a role there that is no more than conducive and instrumental. Public and private spheres–neither coterminous nor perfectly discrete–ambiguously overlap. Hence, in­stitutional representations of them will always be less than perfectly satisfactory. The political realm clearly is a modest one, by American lights. Politics not only does not exhaust reality, but–vital as it is for securing free existence–it is by far not the noblest or best part of reality.

This roughly summarizes the ground of the institutional solution achieved by a devout generation who yet favored separating church and state, men who (without exception among the founders, so far as I can see), like Benjamin Franklin, deeply believed in Providence’s blessing of America, “that God governs in the affairs of men.”⁹

They favored it in the name of liberty, religion, and peace in the society. It remains, on balance, a great solution, even in a rebellious age of ideo­logical division. Descendants of the founders continue to revere lib­erty, justice, truth, and the noble vision of human and divine reality they mediated to posterity, a political order eminently fit for human habitation. We still have a republic, if we can keep it, but now as it did then, that takes faith no less than intelligence.

Notes

This excerpt is from A Government of Laws: Political Theory, Religion, and the American Founding. (Columbia, MO: University of Missouri Press, 2001)