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unwritten constitutions edward hopperLet us now see how far the American constitution, both written and unwritten, accords with these principles; and how strongly prepared the American constitutional order may be to withstand powerful challenges in the dawning years.

Consider first Edmund Burke’s conviction—well sustained by the painful experience after two world wars and the “emergent nations” of Africa and Asia—that any sound national constitution must be the fruit of long experience, tried and tested; that “paper constitutions” are not worth the paper they have been written upon; and that sudden, sweeping, large-scale alterations of an old constitution almost certainly must destroy its ancient virtues rather than lopping off its acquired vices. May we apply these admonitions to the written Constitution of the United States in our present circumstances?

There exists today no popular demand for abrogating the Constitution of 1787 in general and substituting some new fundamental law. But there do exist strong movements to make specific important changes in the Constitution—changes or amendments, however, the intention of which is to return interpretation of the Constitution to what was the common understanding or usage until recent decades. Thus the pressure for formal alteration of the Constitution is reactionary, not innovative. (It will be understood that I employ this word “reactionary” as a neutral term of description, not in a pejorative sense. A human body unable to react is a corpse. In politics, the respective merits of “reactionary measures” or “progressive measures” depend upon particular circumstances.) The principal constitutional amendments proposed at present are designed to compel Congress to balance the national budget; to make abortion unlawful (reversing Supreme Court decisions of recent years); to permit prayer in public schools (so reversing other Supreme Court decisions); to return to legislative bodies jurisdiction over the apportionment and boundaries of legislative districts (which until 1962 remained a “political question” outside the jurisdiction of federal courts). In the several concerns, the popular movement is not for striking down old constitutional provisions or interpretations, but for returning to precedents only very recently overthrown by federal judges. In short, there exists no clear and present danger of a discarding of the old Constitution by the people, by the Congress, or by the Executive Force.

The peril to the Constitution of 1787, instead, has been the work of a majority of the justices of the Supreme Court in a number of cases and of certain other federal judges—all this within the past forty years, chiefly. The Supreme Court of the United States, possessing powers not allocated to the chief judicial body of any other country, in effect has politicized itself; and the term “judicial usurpation,” nowadays frequently employed by opponents of certain unprecedented decisions, almost certainly would have been employed similarly by Burke in his time—had the British judiciary then possessed authority sufficient to find unconstitutional acts of Parliament, which of course the British judiciary did not have and does not have today. In his speech “On the Economical Reform,” in 1780, Burke remarked that “the judges are, or ought to be, of a reserved and retired character, and wholly unconnected with the political world.” Twenty-one years ago, my friend the late C.P. Ives commented on this passage from Burke: “What Burke would have thought when justices of the highest court felt compelled to campaign, at least quasi-politically, in defense of their own prior decisions as judges, it is not hard to infer.” It is still easier to infer what Burke would have thought of the very recent spectacle of two Supreme Court justices endeavoring to rebuke Attorney General Edwin Meese for his remarks on judicial usurpation.

Thus a very serious defect of our written Constitution is the Supreme Court’s aspiration to rewrite it, in effect. This proclivity might be restrained considerably, were the Congress not so reluctant to employ its constitutional power to remove certain categories of cases from the appellate jurisdiction of the Supreme Court and the inferior federal courts. This has been done but rarely, and not at all since the first Nixon administration. Senator Sam Ervin pointed out with some learning how this remedy might be applied to school busing and prayer questions, but got nowhere with the Congress. Yet if a majority of the Supreme Court continues to irritate by its innovating decisions the Congress, the Executive Force, and public opinion, Congress may be impelled to act after this fashion.

Also, there looms in prospect, quite conceivably, a second Constitutional Convention. If only two more state legislatures should request such a convention to act upon proposals for a balanced-budget amendment, Congress would be required to call a convention. Such a body would possess arbitrary power to amend the old Constitution as they might choose, or to sweep it away altogether and supplant it by a new one. Should a new convention be summoned, grandiose proposals for constitutional innovation would be put forward forcefully by persons and interests whose intellectual mentors would be not Edmund Burke, but Jean-Jacques Rousseau or Jeremy Bentham, Burke’s adversaries. Sentimental egalitarianism on the one hand, dull utilitarianism on the other, might undo the prudent work of the Federalists and break that long continuity of law and political institution which goes back beyond the beginning of American history. So it is that men and women attached to the achievement of the Founding Fathers, and cognizant of the political wisdom of Burke, need to bear in mind that a Second Constitutional Convention, though brought about by a conservative impulse, might have radical consequences—of a populist cast, or of a centralizing cast, or of both afflictions blended.

Second, what of the religious basis of the American order? Joseph Story and James Kent, the great early commentators upon American constitutional law, pointed out that although America has no national establishment of religion, American laws and social institutions rest upon the moral postulates of the Christian religion. The majority of the present Supreme Court and a good many other federal and state judges seem to assume that religion of any sort is suspect and should be excluded from public life.

If the latter understanding prevails in the interpretation of the written Constitution and works changes in our unwritten constitution of custom and convention, then very grave consequences are liable to develop before the end of this century. One of them would be the steady increase of fraud and violent crime, not to be adequately held in check by police powers; for religious belief is sufficiently enfeebled in our time already, with ineluctable moral consequences; and disapprobation by the state would work yet more mischief. Another consequence would be an increased danger from virulent ideology of one sort or another, for ideology rushes in to fill the vacuum left by the decay of religion; in foreign affairs, the decline of Americans’ religious belief would mean an increase of the appeals of Marxism and of Marxist powers. A third consequence, intended to diminish the effects of the two afflictions just described, might be the systematic development of a “civil religion” of Americanism, a kind of Americanist ideology built of bricks from the brickyard of John Dewey and his disciples—dull, unimaginative, materialistic, and in the long run destined to ignominious failure.

In a time when telephone companies look forward to profits to be made from “dial-a-porn” services (within federal regulations, of course), and when all the police powers of federal and state and local governments do not suffice to put down an enormous traffic in narcotics, some freethinking spirits may begin to apprehend the truth in Burke’s declaration that the state is built upon religious consensus. A whole school of twentieth-century historians has been instructing us that all culture, including political structures, arises from the cult. Thus if we inquire whether the constitutions of government in the United States will endure a hundred years from now—why, the speculative answer must depend in no small part on whether there still will subsist, a century from now, widespread belief in a transcendent order. It may not be in the power of the political authority to renew the religious understanding; but at least the political authority can refrain from accelerating the decay of religious learning.

Third, what are we doing in America to develop people of virtue and wisdom sufficient to lead the democracy and sustain our old constitutional order of justice and freedom? The alternative to an aristocracy (the leadership of the best, in the public interest) is an oligarchy (the leadership of the rich, in their own interest). It is inane merely to chant, with Carl Sandburg, “The People, Yes!” A people deprived of honest, able, and imaginative leadership will come to ruin—quite possibly at the hands of the squalid oligarchs of the Soviet Union.

The popular and journalistic response to the recent United States Commission on Excellence in Education did hearten some of us, for temporarily it overcame the educationists’ denunciations of “elitism” and showed that a considerable part of the public has become aware of our American failure to develop right reason and moral imagination, scientific understanding and political knowledge, among the rising generation; our failure to provide, if you will, sufficient opportunity for the healthful growth of a natural aristocracy, which is essential to the survival of a democracy. But already the administration of proposed educational reforms has fallen back into the hands of the very foundation bureaucrats, accrediting agencies, departments of public instruction, pillars of the National Education Association, and all those dull dogs of Holy Educationism who prate endlessly of “equity” (meaning enforced educational mediocrity) and shudder internally at the mention of “excellence” (which would eliminate the oligarchs of the educationist empire, should excellence actually be achieved). We may make some improvements in schooling at every level, but they will be small ameliorations, as matters drift at present.

The principal purpose of what has been called liberal education was to develop a considerable body of young people who would become molders of public opinion and leaders of the community the natural aristocracy, which is something different from the “meritocracy” and specialized elite that grow up in the twentieth-century welfare state.

But how much liberal education do we undertake nowadays? At some colleges, it has been reduced to a vague “appreciation,” stripped of its old ethical end and its old intellectual means. At other colleges, it has been perverted into a corrupt form of sociology, sneering at all things established. At institutions still styling themselves liberal arts colleges, two out of every three undergraduates are enrolled in “business administration”—as if getting and spending were to be the whole of life for the large majority of people. Really, true business administration cannot be learnt except by practically administering a business; and the liberal arts are most difficult to acquire fragmentarily, after one has gone into the busy world.

What we require far more urgently than we do minor business skills is young men and women of courage and imagination, who know that life is for something more than consumption. The constitution is not sustained by intellectual mediocrity, obsession with creature comforts, and four-legs-good, two-legs-bad praise of an abstract democracy. If we neglect the talents of the best of the rising generation, the natural aristocracy, we are left in the long run with what Alexis de Tocqueville called “democratic despotism,” a regime of stagnation and dull uniformity—if not with something still worse than that.

Finally, it is even truer today than it was in Burke’s time that those who begin by claiming everything will end with nothing at all—not even a Republic. An effectual “welfare rights” lobby piles up incredible national deficits and national debts, as if wealth were a mere matter of printing presses and new debt-ceilings; currently such claims of entitlements make it difficult to maintain the common defense. The Bill of Rights is invoked as if it were really a suicide pact from those National Riflemen who would defend to the death the inalienable right of a mugger to buy a Saturday night special, to those humanitarians who insist that even imminent peril to public health must not be permitted to impede exercise of the inalienable right to engage in sexual perversions.

Great states with good constitutions develop when most people think of their duties and restrain their appetites. Great states sink toward their dissolution when most people think of their privileges and indulge their appetites freely. This rule is as true of democracies as it is of autocracies. And no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention, affirms an enduring moral order of obligation and personal responsibility.

The ruin or the recovery of America’s constitutions, and the general future of American politics, will be determined more by choices than by circumstances. Here I have done no more than to suggest what some of those choices must be. “Not to lose ourselves in the infinite void of the conjectural world,” Burke writes near the end of his life in the first letter of the Regicide Peace, “our business is with what is likely to be affected for the better or the worse by the wisdom or weakness of our plans.” To shape the American political future through prudent and courageous choices still is within the realm of possibility.

“I despair neither of the public fortune nor of the public mind,” Burke continues. “There is much to be done undoubtedly, and much to be retrieved. We must walk in new ways, or we can never encounter our enemy in his devious march. We are not at an end of our struggle, nor near it. Let us not deceive ourselves; we are at the beginning of great troubles.”

As it was with Britain in the closing years of the eighteenth century, so is it with America in the closing years of the twentieth. As did the British then, we confront an armed doctrine and are divided in our own counsels. And yet our own general complacency scarcely is shaken: Most of us behave as if nothing very disagreeable ever could happen to the Constitution of the United States and as if the political future of this nation would be a mere alternation of Republican and Democratic presidential victories, somewhat less interesting than professional baseball and football.

The crash of empires and the collapse of constitutions have blinded and deafened most of the world since 1914. Only American territories and American laws have stood little touched amidst the general ruin. It is not accident that will preserve them for posterity. Of those Americans who dabble in politics at all, many think of such activities chiefly as a game, membership on a team, with minor prizes to be passed out after the latest victory. Yet a few men and women, like Burke, engage in politics not because they love the game, but because they know that the alternative to a politics of elevation is a politics of degradation. Let us try to be of their number.

This is the second part of a two-part essay; the first part may be found here. Books on the topic of this essay may be found in The Imaginative Conservative Bookstore. Republished with gracious permission from Modern Age (Spring 1987). 

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