Essay Series on Patriotism: Third Essay, “On Constitutional Loyalty”

This is the third in a series of several essays by different authors on the issue of patriotism. This series is sponsored by Claremont McKenna’s Salvatori Center for the Study of Individual Freedom.

Gary Jeffrey Jacobsohn is the H. Malcolm Macdonald Professor of Constitutional and Comparative Law in the Department of Government and Professor of Law at the University of Texas at Austin.

What kind of patriotism is possible in a flawed constitutional regime? Our intuition tells us that patriotism is a passionate attachment to the country we have here and now, that it’s inherently conservative. How passionately attached can you be to something you acknowledge as imperfect, perhaps deeply so?

We are told by John Jay in the second entry of the The Federalist that the convention that framed the Constitution was composed of men “highly distinguished by their patriotism, virtue, and wisdom.”  With “minds unoccupied by other subjects,” they were able to reason their way to agreement on “a new Constitution for the United States of America.”  With one exception – “love for their country” —  they were not “influenced by any passions.”

For Jay, the linkage of patriotism and love of country was very likely easily made, for he had written several paragraphs earlier that “providence has been pleased to give this one connected country to one united people.”  In his specious account, these people shared a common ancestry, language, religion, principles of government, and culture.  For passion to be allowed access to deliberations over an assertion of constituent power, it required channeling through a false narrative of commonality.  However dubious the claim, it possessed a certain strategic logic in light of the underlying purpose of Jay and his colleagues to facilitate the attachment of an incipient people to their recently crafted constitutional experiment.

Much like Steven Smith, Jay understood that “Patriotism is ultimately a form of constitutional loyalty.”  And to the degree that such loyalty depended on sustaining the fiction of a unified people possessed of a discernible constitutional vision, one could expect to secure the veneration for the document that Madison would later exalt in Federalist 49.  A “fervent attachment to republican government,” he maintained, would benefit from having “the prejudices of the community on its side.”

But how fervent would that attachment be if popular prejudices were not simply identified with the community of “one united people”?  Or within the broader diverse American community, if there was disagreement over the very meaning of republican government such that distinct groupings of people understood their constitutional entitlement quite differently, what would it mean to think of patriotism as a form of constitutional loyalty? 

Questions of this sort require an answer; after all, at least one thing that does not define American exceptionalism is the presence of constitutional dissonance, both the tensions internal to the governing document as well as the disjuncture between text and the social context in which it is situated.  More obvious today than in 1787, disharmony is endemic to the constitutional condition, ensuring that a nation’s constitution – a term that incorporates more than the specific document itself – may come to mean quite different things over the course of its development.  What are the implications of this ubiquitous condition for constitutional loyalty?

Perhaps the most foreseeable is that it will set in motion a struggle for the nation’s constitutional soul.  In that struggle constitutional loyalty will assume its plural form, as proponents of contrasting visions work to sever the bonds of allegiance that define the patriotic commitments of their adversaries.  If, as in India, one side possesses a transformative constitutional vision, the prospective enforcement of which would make the document a subversive presence seeking reconstitution of an unjust society, the other side will invoke “love for their country” to hinder this unpatriotic assault on what they hold dear.  In his closing remarks at the Indian Constituent Assembly, B. R. Ambedkar, the James Madison of his nation’s constitutional framing, said: “On the 26th of January we are going to enter a life of contradictions.  In politics we will have equality and in social and economic life we will have inequality… How long shall we continue to live this life of contradictions?”  To which we must acknowledge that as yet there is no answer to the question.  Indeed, descendant advocates for the rival conceptions that were in fierce competition during the three years of Assembly debate and deliberation still fight over the contested terrain of constitutional loyalty. 

Smith rightly points out, “The theme of patriotism is invariably connected with the problem of conflicting loyalties.”  While his particular problem – the clash that pits loyalty to country against something else (for example, family) – is surely concerning, of commensurate concern is the quandary we confront in the presence of the disharmonic constitution.  With regard to the first, Smith argues that even the “philosophically-minded” Abraham Lincoln was unable to resolve the dilemma.  But as to the second, which preoccupied Lincoln from the time he entered the national political stage, a more promising solution emerged from his engagement with these issues.

As a young man Lincoln pleaded for “reverence for the constitution,” which he argued in the Lyceum Address could be supported by “unimpassioned reason.”  The Constitution warranted our reverence – and hence, loyalty – because, as years later he explained, it incorporated the Declaration’s “principle of liberty,” metaphorically describing the document as a “picture of silver” framing an “apple of gold.”  Yet it was also a document providing some basis for John C. Calhoun’s justification of severance from the Union because its policies were “inconsistent with the character of the Constitution and the ends for which it was established.”  That basis, tendentiously derived though it may have been, could not have mystified Lincoln, whose recognition of the flawed nature of the Constitution was evident in an extended section in his First Inaugural devoted to “the reclaiming of what we call fugitive slaves,” an obligation distinctly provided for in the document. 

That the Constitution could speak to different audiences, with affiliates of each holding diametrically opposed views of its meaning, was therefore not simply attributable to the interpretive latitude available to readers of general language.  Rather, it was directly traceable to explicit textual incongruities in a disharmonic constitution.  Loyalty to such a constitution cannot come easily, for it requires that one close one’s eyes to the fact that there are many whose reverence for the same document has led them to embrace principles antithetical to one’s own deeply held beliefs.  So, when Stephen Douglas ended one of his debates with Lincoln by saying, “I stand by the Constitution as our fathers made it,” his interlocutor might have left wondering how he could convince others to have reverence for a document that had acquired the loyalty of such a man.

Unconvincing, or at least highly misleading, would be to say that Douglas (and Roger Taney in Dred Scott) simply got it wrong, that their understanding of what the fathers had wrought had no basis in fact.  No less a champion of constitutionally guaranteed equality than Thurgood Marshall would use the occasion of the Constitution’s Bicentennial celebration to highlight those passages that revealed the imperfect “sense of justice exhibited by the framers.”  Instead, the most credible and promising response to the disharmonic predicament is suggested in what Lincoln said of the men who wrote the Declaration, that they “meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.”  They intended its words – the “apple of gold” – for “future use,” or what Martin Luther King Jr. represented as a “promissory note to which every American was to fall heir.”

Of course, even this rendering is not quite true to history, as its intimation of a consensus on this question was surely not evident in the behavior of the men who framed the “picture of silver.”  It is, however, a salutary misrepresentation in the sense that a successful future use of the Declaration would require an extended struggle between the conflicting strands of the disharmonic constitution, all leading, one might hope, to the time when succeeding generations would be both morally and legally bound to fulfill the promise of the one foundational proposition that deserved not to perish.  Constitutional loyalty, then, has an aspirational aspect to it, entailing more than passive embrace of an historic entitlement, but active commitment, as Lincoln stated in his Second Inaugural, to “strive on to finish the work we are in.”

It was only weeks later that his own work in pursuit of this noble end was cut short.  Upon hearing of the death of his Commander-in Chief, General Ulysses S. Grant paired two of Lincoln’s virtues in a way that speaks to a vitally important characteristic of constitutional loyalty.  To be sure, this matter was not the subject then on his mind, but for us his words are still revealing and instructive: “To know [Lincoln] personally was to love and respect him for his great qualities of…patience and patriotism.”

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