Matthew S. Brogdon is an Associate Professor of Political Science at the University of Texas at San Antonio.
The recent insurrectionary riot at the Capitol has elicited dire warnings that our democracy is in peril. The situation is grave, to be sure, especially given the tendency of strong partisans on the Left and Right to shrug at the growing prevalence of mob violence. But appealing to democracy—the rule of the many—is an awkward way to respond to populist uprisings. We would do better to focus our rhetorical efforts on constitutional preservation, an approach modeled well by the unprecedented memorandum that the U.S. military’s Joint Chiefs of Staff sent to the country’s service members ahead of Donald Trump’s departure from office and Joe Biden’s inauguration. Characterizing the riot as an “assault on the U.S. Congress, the Capitol building, and our Constitutional process,” the memorandum makes clear that the threat is to concrete institutions and laws of a particular place, not to abstractions like democracy. “We support and defend the Constitution. Any act to disrupt the Constitutional process is not only against our traditions, values, and oath; it is against the law.” Respect for these institutions is not framed as respect for a universal principle of democracy but as part of the duties of citizenship within a particular political order. It is the language of civic duty grounded in love of one’s country.
It is not surprising to find a poignant appeal to constitutional fidelity and reverence for law in the Joint Chiefs’ response. Those who possess the actual means of overturning the constitutional order can be expected to perceive more readily the real impediment to doing so. They appreciate that the resilience and stability of a constitutional order, no matter how well-constructed, is necessarily contingent on the attachment of the people to it.
Unlike the generic appeal to democracy, a universal value with no unique connection to the history or experience of a specific people, the appeal to constitutional fidelity is necessarily particular and to some extent exclusive. It appeals to the attachment of the citizen to her own country and identifies the common good of that country with fidelity to its particular constitutional tradition. The rhetoric of the Joint Chiefs’ memorandum is in part so exceptional because this particularity runs counter to the current stream of elite thought and the priorities of globalization. For most of the American intelligentsia and many of its political elites, framing reverence for law in this way smacks of American exceptionalism. Its suspect character has only been heightened by the resurgence of nativist populism, not to mention outright fascism and white supremacy, during Trump’s presidency. In this context, reviving America’s constitutional spirit understandably may sound to progressives like the first faltering step down a slippery slope to nationalism. That concern is misplaced for reasons we will return to shortly. But first we need to consider the most profound treatment of the relation between mob violence and constitutional preservation in the American political tradition.
Amid a similar apparition of the “mobocratic spirit” in the 1830s, a young Abraham Lincoln warned that the specter of mob violence undermines the attachment of the people to the Constitution and laws of their country and thus prepares the soil for demagogues and dictators who promise either revolutionary change or reactionary insulation from it. The best security against the erosion of Constitutional fidelity is a recovery of reverence for law, a revival of what we might call the constitutional spirit. Lincoln’s proposed solution was not simply rational assent to good laws, but spirited attachment to a constitutional order and commitment to its perpetuation.
In this constitutional spirit, the innumerable displays of deference to the rule of law that commonly attend the peaceful transfer of power in a healthy constitutional order simply reflect the ingrained conviction that the preservation of constitutional forms takes priority over specific policy outcomes or short-term electoral gains. It is this kind of reverence for constitutional forms and established institutions that steadied President Obama’s hand in the transition to the Trump administration, even as the #NotMyPresident camp urged Democratic leadership to find some way to circumvent the Electoral College in the name of democracy. It similarly marks the open condemnation of the recent insurrectionary assault on the Capitol and the call for adherence to constitutional processes by some of the grownups in the GOP. Preserving and adhering to the Constitution is more important than winning whatever political brawl we happen to find ourselves in at any given moment. In this way, established institutions and constitutional processes form a sort of political morality, a common ground that holds even in the midst of policy disagreements.
The constitutional spirit Lincoln prescribed is not blind chauvinism or unreflecting nativism. Like a healthy human being, a healthy polity is alive to its past failures and present weaknesses and marked by a desire for improvement, none of which is in the least incompatible with love of one’s own. Nor does love of one’s own amount to hatred or neglect of others. We can be confident, moreover, that while individuals might wall themselves off and escape self-criticism, the body politic in a diverse society with robust free expression can never successfully do so. The constitutional spirit calls for the sort of generous and self-critical love of one’s own that Lincoln held up for emulation in his eulogy for Henry Clay, who “loved his country partly because it was his own country, but mostly because it was a free country; and [who] burned with a zeal for its advancement, prosperity and glory, because he saw in such, the advancement, prosperity and glory, of human liberty, human right and human nature.”
The constitutional spirit is grounded in the judgment that the Constitution is not only our constitution, but also a good constitution. Accordingly, our aim should be not only to inculcate appreciation for the Constitution as it is, but to pursue changes that maximize the community of those who have cause to feel genuine attachment to it. This consideration argues the tremendous importance of constitutional revision. Winning and preserving the attachment of the people to the Constitution requires prudent and timely amendment, whether to repair unforeseen defects, exorcise inherited injustices, extend the scope of constitutional rights, remedy abuses of power, or adapt the text to our changing needs in other ways. That is to say, constitutional change should aim to cultivate or vindicate constitutional reverence by improvement.
This is in part what makes constitutional change through judicial fiat problematic. Constitutional change should result from a deliberative process that seeks and wins the widespread support of a constitutional majority and reflects durable shifts in public opinion. The empirical observation that the Supreme Court follows the election returns is no consolation, for it is critical not only that constitutional changes reflect shifts in public opinion but that those shifts be established through and evidenced by a formal deliberative process that encompasses the whole polity.
The prospects for widespread consensus about the desirability of preserving the Constitution and the means of further improving it are better than our acrimonious political discourse might suggest. The Constitution Drafting Project, a recent exercise in constitutional revision by the National Constitution Center, reveals that there is broad agreement among ideologically diverse constitutional scholars and public intellectuals—including progressives, conservatives, and libertarians—that the constitutional framework we have is sound and ought to be preserved and that there is significant overlap about areas where it needs improvement.
One might well ask, why not look to something purer than the Constitution? Why not look to something that needs no improvement? A constitution, after all, invariably involves compromise and its worthy aspirations are alloyed with “constitutional evil,” to borrow Mark Graber’s phrase. An aspirational creed, such as the natural rights doctrine of the Declaration of Independence, is certainly more soothing to the conscience, more congenial to the zeal for righteousness, than the Constitution. But that is precisely why the Constitution is the better focal point for the public mind. It compels us to grapple with the necessity of compromise in a pluralistic society and to content ourselves with the limits of human virtue. It reminds us that the work of building stable institutions is a multi-generational undertaking. Stable political orders are easier to preserve than to create; and their creation or re-creation is typically attended with bloodshed.
No doubt, the natural rights liberalism of the Declaration is essential to the American experiment, Lincoln’s apple of gold in a frame of silver. But the Spirit of ’76 is most salutary when it is embodied in constitutional forms. For one thing, its aspirational commitments are invaluable in the task of constitutional construction, giving priority to constitutional provisions when they collide and resolving ambiguities in the text. If the Constitution is the substance of our political morality then the Declaration functions as conscience, sitting in judgment.
More to the point, by setting up civil liberty as the end of legitimate government, the Declaration necessitated constitutional order. Its aims were not revolutionary in the usual sense. As Martin Diamond argued, America’s revolution is best described as one of sober expectations because “civil liberty as a goal constrains its followers to moderation, legality, and rootedness in regular institutions.” The enjoyment of liberty necessitates a government that is effective, limited, and stable. Liberty cannot flourish where government is feeble, unrestrained, or volatile. The Declaration itself speaks clearly to the importance of competent government when it couples the right of the people to alter or abolish government with the imperative to “institute new government, laying its foundation on such Principles, and organizing its powers in such form, as to them shall seem most likely to secure their safety and happiness.” If that were too subtle a point, the ensuing bill of indictments against British rule dwells at greatest length on the King’s interference with established institutions of self-government in the colonies. The founding generation fought for the preservation of a tradition of constitutional self-government that predates the Revolution by a century and a half, lending weight to Tocqueville’s insistence that America’s founding is profoundly rooted in the practice as much as the theory of free government. The Framers of the Constitution were not tearing down an established order to build anew, but carrying forward and improving the tradition of self-government they had inherited.
By contrast, when the Spirit of ’76 is disembodied from the institutions and practices of constitutional self-government, it “roars with a vengeance,” as Jeffrey Isaac has put it. Abstract revolutionary doctrines typically serve as warrant for the destruction of peace, and with it the manifold blessings of the present, in the pursuit of some overriding aim, usually a visionary state of affairs that is unattainable. As most revolutions since our own have demonstrated, making the perfect the enemy of the good is the stock-in-trade of revolutionary ideologues, from Robespierre to Lenin. Of course, as I have already noted, the commitment to liberty in the Declaration far excels the utopian aims of the French and Bolshevik revolutions. Yet, the appeal to a heroic revolutionary generation is easily divorced from the salutary doctrines of the Declaration and, once by itself, is so malleable that it is easily molded to serve the cause of revolution and resistance as such, from John C. Calhoun’s slaveholding republic to John Brown’s slave revolt, from Eugene V. Debs to the Three Percenters.
The Founding generation deserves our admiration not for what they destroyed but for what they preserved, built, and bequeathed to posterity for improvement. The American Constitution has been exceptionally resilient. It has weathered contested elections and civil wars, wise alterations and foolish ones. But we should be careful not to mistake its strength for invulnerability or assume that its resilience is inherent in its form. Our political leadership and our educators should attend to the cultural underpinnings of constitutional fidelity and reverence for law. Otherwise, to borrow a metaphor from Justice Story, we may be like the ignorant child who, finding a giant oak, weather-beaten but thriving after two centuries of hurricanes and droughts, impishly removes a girdle of its bark and kills it in an afternoon.