Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is a regular contributor for The Constitutionalist.
On September 16, on the eve of Constitution Day, McSweeney’s Internet Tendency, one of the better sources of social satire, published an essay entitled “The Founders Would Like to Remind You They’ve Been Dead for Nearly Two Hundred Years.” Speaking in the voice of the Founders, it began like this:
In the current era of hyper-partisanship, many have taken to using out-of-context quotes by us and asking what we would think of pretty much any political development. With that in mind, we’d like to remind the American people that we are dead. In fact, we’ve been dead for nearly two hundred years. We are no longer capable of sentient thought. We feel this can’t be stressed enough.
Satire lampoons the absurd, and what the satirist regards as ridiculous can often be revealing. The satirist’s question here cannot be ignored, even on a celebration of Constitution Day: Why should we feel any obligation toward the dead? That question goes to the core of the problem of constitutional obligation.
There are at least two ways of looking at this problem. One, which is ascendant in constitutional commentary on both the left and right, is that we should (or should not) be obligated to the Constitution because it works well for us (or does not) in the here and now. We are well familiar, as is McSweeney’s, with this argument when it expresses itself in living constitutionalism.
But it is also prominent on the legal right among some of the most excellent legal scholars of our time. Randy Barnett, endorsing the Constitution on the grounds that it protects individual rights, poses the question this way: “Ultimately what matters, however, is not the labels we use to describe these differing views of popular sovereignty, or what they were called in the past. Nor does it really matter which exact view was held by those who wrote the Constitution. What matters is the type of constitution they wrote and whether we today believe it to be a good enough constitution to follow.”
A second view is grounded in what I have called “the politics of obligation.” It holds that we are obligated to the Constitution and its framers not because their legacy benefits us right now but rather because we hold their legacy—which spans generations—in trust. We have inherited this trust and are obligated to pass it on.
When teaching Edmund Burke, I often pose this question: Suppose you inherit a manor house that has been in your family for generations. It has, in all likelihood, been modified, whether with electricity or indoor plumbing or a modern kitchen. But the basic structure of the house remains intact: An ancestor from generations ago would still recognize it. The place doesn’t suit your tastes, so you decide to tear it down and build something in the style of modernist architecture instead. The question is this: Have you done something unwise or immoral?
The politics of obligation holds that you have wronged both your ancestors and descendants. Your ancestors built and tended this house; your descendants will expect to have received it in trust as well. But you elevated your appetites over that obligation.
Constitutional obligation is similar. We are obligated to the Constitution not because it or its framers were perfect—neither it nor they were—but rather because we hold their legacy in trust.
In September 1789, Madison’s friend Thomas Jefferson, the American minister to France—who was infatuated with the revolution in that country—wrote him a letter. Its central claim was that “the earth belongs in usufruct to the living.” Past generations could claim no right over it. Jefferson, using demographic tables to calculate the length of a typical generation at 19 years, said no public debt or law could bind beyond that duration.
The practical barriers to Jefferson’s proposal were insuperable, including the fact that generations do not clock in and out as a single shift at a single time. As was often the case, it fell to Madison to correct his friend’s excess. Madison replied that the earth belonged to the living only in its “natural state.” By contrast, “the improvements made by the dead form a charge against the living who take the benefit of them. This charge can no otherwise be satisfied than by executing the will of the dead accompanying the improvements.”
We recognize the basic argument of Locke: the appropriation of natural property by making improvements on it. But Madison’s adaptation is a masterful anticipation of Burke: The rights and obligations arising from improvement can transcend generations.
And this cuts to the heart of the matter: We are obligated to the Constitution not because of its current benefits—a transient and disputable foundation that would shift and collapse under relentless inspection. Rather, we are obligated to the Constitution because we hold it in trust: because we bear meaningful obligations to our ancestors as well as to our descendants.
Burke compared the commonwealth to a temporary possession we rent during our lifetimes, not one of which we are the “entire masters.” Consequently, he wrote, we do not have the right to “waste … the inheritance” by “destroying at [our] pleasure the whole original fabric of [our] society.” Without this intergenerational obligation, Burke continued, “No one generation could link with the other. Men would become little better than the flies of a summer.” The metaphor of the regime as an inheritance, he explained, provided “a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement.”
An objection could be raised here. Why does one generation need to link with another? Why not just live in the present? Burke’s answer, famously formulated as his transgenerational social contract, is that nothing meaningful in society is achieved in a single generation. This point from Reflections on the Revolution in France bears extended quotation:
Society is indeed a contract. Subordinate contracts, for objects of mere occasional interest, may be dissolved at pleasure; but the state … is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.
Note the progress of the argument: Because society is a partnership in goals that can only be achieved across generations, obligations transcend generations too. Burke was an Aristotelian. His concept of politics was more expansive than ours is. But we can imagine more modest intergenerational obligations, such as the cost of fighting a war or of building the interstate highway system.
There is another sense in which constitutional obligation serves our interests: The constitutional abuse I endorse today might set a precedent for use by those I oppose tomorrow.
But these are reasons of utility that do not refute the claim that we should follow the Constitution because it serves our needs. In other words, we still have not answered the question of constitutional obligation in a moral sense. The examples above would license constitutional upheaval as well as constitutional preservation, depending on which was most conducive to the contemporary goal in question. Yet it is worth observing that presidents, soldiers, new citizens and others do not take an oath to utility or even to the public good. They swear to preserve, protect and defend the Constitution of the United States.
There are three moral virtues that should induce us to revere the Constitution, all of which counsel against calling the Founders to the bar of contemporaneous reason. One is humility.
The constitutional regime reflects what Burke called “the collected reason of ages”—the accumulated wisdom of forebears who applied abstract principles to the messiness of concrete circumstances. If the Constitution seems defective to us, perhaps we in the here and now are missing something that was evident to them. Burke wrote of viewing a Michelangelo or reading Virgil that if we see no beauty in works that have stirred generations, we should assume the deficiency is ours, not theirs.
The second virtue is gratitude. Reverence—not worship, but a disposition of respectful deference—is a debt we owe. Trampling the Constitution would violate a trust—a trust in the legal sense of something of which we are not the sole and immediate owners but rather the caretakers.
The third virtue is duty: We owe this trust—this inheritance—not just to our ancestors but to our descendants. It is our way of linking generations and continuing their work. And let us make no mistake: Absent obligation, there can be no effort that transcends generations.
I want to pause here to consider objections to a moral sense of constitutional obligation. One is that most of us are not descendants of the Founders or their contemporaries in any literal sense. We are almost all the descendants of immigrants who arrived well after the Founding. But we can all consider ourselves to be the Founders’ adopted heirs.
Another objection is that the Founders excluded at best and enslaved at worst significant numbers of those I am now saying should feel obligated to them. Among scholars of American thought, there tend to be two schools of thoughts on this: the castigators and the contortionists. The castigators, holding the Founders to contemporary moral standards, see only their sins. The contortionists, seeking to get the Founders off the hook, twist their thought and actions into unnatural shapes to make them appear pristine.
Neither of these is particularly compelling. I would rather allow the Founders to be accountable for their sins and credited with their virtues. Great statesmen and stateswomen tend to have both in considerable supply. We must look at them as Hamlet did his father: “He was a man, take him for all in all, I shall not look upon his like again.”
A third objection: The Constitution may in fact contain serious flaws that demand repair rather than reverence. Fair enough. Yet we have the means of changing the Constitution, either de jure through the amendment process or de facto through sustained practice. If the flaws are enduring and intolerable, the option of Locke’s “appeal to heaven” always lurks in the background. But in these cases, we need a guide beyond immediate appetites or interest for how we change. And the principles of our Constitution provide one.
Finally, we might object that moral obligation is, strictly speaking, irrational. Why would we not use our reason to evaluate our obligations today and take or leave them as our judgment concludes? That, too, is fair. But we fulfill all manner of obligations that do not have clear origins or strictly rational reasons. We follow religious rituals whose meaning is unclear to us. We follow laws or regulations we could not, if pressed, justify. Of course, part of that is what Aristotle and Aquinas called habituation. But in one of his finest passages, Burke embraces the mystery at the heart of obligation:
Dark and inscrutable are the ways by which we come into the world. The instincts which give rise to this mysterious process of Nature are not of our making. But out of physical causes, unknown to us, perhaps unknowable, arise moral duties, which, as we are able perfectly to comprehend, we are bound indispensably to perform.
Constitutional obligation—a debt of gratitude toward the past and of responsibility to the future—is a limiting and, as Burke would say, cementing principle. It binds us. Just as Biblical exegetes argue about the meaning of scripture but are bound by a common text, we can argue about the meaning of the Constitution as well as improvements to it. But that argument is only productive if we accept constitutional obligation as a touchpoint. We hold this regime as a trust. Stewarding it is what we owe to our ancestors, our descendants, and ourselves.