Sotirios Barber is Professor of Political Science at the University of Notre Dame.
Now’s hardly the time for what Brian Christopher Jones calls “constitutional idolatry” (Constitutional Idolatry and Democracy (2020)). America needs the virtues of the American founding, especially the courage of the founding, not “reverence” for the constitution that the founding produced. Global warming; widening gaps of income, education, and social mobility; deepening cultural divisions and popular distrust of civic institutions; white Christian nationalism, entrenched and armed; advancing oligarchy; runaway technology; corporate boards pretending that greed is good; jurists protecting bribery as speech – developments like these have paralyzed our government. Explanations – i.e., scientific explanations, the only reliable kinds of explanation — range over many factors: the psychological, the demographic, the economic, and the constitutional.
Yes, the constitutional: if a government isn’t working, the plan of that government bears some responsibility; finding the extent of this responsibility is the responsibility of the scientific community, including the constitutional studies part of that community. Greg Weiner tries to deny this responsibility. His essay of October 4 (“What Do We Owe the Founders?”) calls not for emulating the founders but “reverence” for, or “respectful deference” to, the constitution they produced. He struggles to justify this reverence, but he ends in contradiction and paradox, the paradox of giving up on the constitution he would revere.
The American founders determined their obligation to the nation’s first constitution by asking whether it worked – whether it was “adequate to the exigencies of government and the preservation of the Union,” “Justice,” and “the real welfare of the great body of the people” (The Federalist: No.1, par. 1; No. 15, pars. 1-5; No. 40, pars. 3-9; No. 45, par. 2; No. 51., par 10). This was a benefits test of whether a constitution deserves the fidelity of its people, and it’s an excellent test. In fact, it’s the one unavoidable test. In his essay of October 4, Weiner tries to avoid this test, only to prove that he can’t.
Weiner acknowledges the influence of the benefits theory of constitutional obligation. He associates it with “some of the most excellent legal scholars of our time.” Weiner names but one exponent of this theory, Randy Barnett. He could have added many other names. Starting with Publius, he could have added Jefferson, Lincoln, and Roosevelt, along with recent scholars like Michelman, Murphy, Moore, Tulis, Macedo, Fleming, and Balkin. (See my Welfare and the Constitution, 3-4, 28, 38-41, 57-58, 66, 146-48, 150-55).
Yet Weiner advocates a different theory of constitutional obligation. Though he associates his theory with Edmund Burke, he attaches no clear label to it, so I’ll just call it Weiner’s theory. Weiner clarifies his theory by analogizing constitutional obligation to an obligation to leave one’s children a house bequeathed by one’s parents. This analogy assumes not just any old house; it assumes a house of special value. If we inherited an heirloom like the Robie House (a block from where I write) we could be obligated to maintain it and pass it on. But this obligation would be explained only by the irreplaceable character of the house and its value to both our children and their community, as weighed against values enabled by the house’s demolition — a highly contingent matter involving reflection and choice among competing goods. Thus, Weiner’s argument by analogy doesn’t work; it requires a rational balancing of benefits that it seeks to displace.
Nor can Weiner claim the authority of Burke. When Weiner cites Burke’s portrayal of society as a partnership in ends that can be achieved only across generations, he assumes that the ends to be achieved are public goods (Weiner’s examples are victory in a war and the Interstate Highway System) not mere bequests, and not things made good by mere bequest. Burke’s references to intergenerational partnerships “in all science . . . all art . . . every virtue . . . and in all perfection” assume the same: the intergenerational transmission of benefits.
Weiner eventually inclines toward a benefits model of constitutional obligation when he contrasts responses to the founding’s racial injustices and exclusions of women from equal citizenship. The “castigators” respond by seeing only the founding’s sins; the “contortionists” twist the founders’ thoughts into “unnatural shapes” to “get the Founders off the hook.” Weiner would be neither a castigator nor a contortionist. He would credit the founders “for their virtues” and hold them “accountable for their sins.” Weiner acknowledges that the Constitution “may in fact contain serious flaws that demand repair rather than reverence.” But how he would separate what needs repair from what deserves reverence, or “respectful deference,” remains unclear. In deciding what does and does not conduce to the people’s happiness (The Federalist, No. 45, par. 2), Publius consulted the lessons of experience, the science of politics, and the principles of practical reason (No. 1, pars, 1, 7; No. 9, par 1-3; No. 10; No. 15; No, 23, pars. 1-6; etc.). Weiner nods to this rationalist approach. He asks, rhetorically, “Why would we not use our reason to evaluate our obligations today and take or leave them as our judgment concludes?” And he answers: “That, too, is fair.”
But “fair” is not good enough for Weiner, and he ends contending for a source of obligation other than reasonable benefits. He says that “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.
Weiner’s use of this passage from Burke suggests that we can have no real reason for constitutional fidelity. The mysterious force that links physical causes to moral duties resembles that which prompts us to “follow religious rituals whose meaning is unclear to us.” Thus, our attitude toward the founders (“respectful deference”) should bear some similarity to our attitude toward divinity (“reverence”). “If the Constitution seems defective to us,” says Weiner, we may be “missing something that was evident to” the founders, and we should therefore “assume the deficiency is ours, not theirs.” This is bad advice. No constitutionalist, Weiner included, can accept what it implies, namely, that if we reject an established system or practice or teaching whose justification is not evident or even beyond evidence (in forces “dark and mysterious”), the fault is ours. Weiner himself rejects this proposition when he recognizes slavery and the exclusion of women from citizenship as sins of the founding. If these practices were sins, they were sins not against history or divinity; they were sins against reason and the value that humanity places on government by reflection and choice.
Weiner assumes that our inheritance from the founding is limited to something tangible: a document that establishes our institutions and prescribes their conduct. He implicitly denies that Americans have inherited what the founders valued most in themselves and their generation: the intellectual and moral competence to rise above accident force and establish good government by reflection and choice — the competence to be constitution makers. Weiner needn’t defend this implication; that Americans have lost the capacity for constitution making is beyond questioning. But as America’s display of constitutional competence was once humanity’s triumph, America’s loss of constitutional competence is humanity’s tragedy. Weiner should lament this tragedy, not justify it or excuse it.
This is not to say that no one should ever counsel reverence for what the founding produced. Madison himself counseled reverence for the Constitution in Federalist No. 49. But Madison counselled reverence where partisan divisions made efforts to improve the Constitution likely to make matters worse, worse than the status quo (No. 49, pars. 6-7). In our case, reverence for the Constitution preserves a status quo that’s getting worse on its own. Madison counselled reverence where competence was lost, as it is today. But lost constitutional competence bespeaks useless institutions and useless institutions bespeaks constitutional failure. Recall the founding’s attitude toward the Articles of Confederation: Logic didn’t rule out institutional change under Article XIII. That provision wasn’t useless as a logical matter; it was practically useless – useless for the practitioners of that day. Weiner holds that Article V and the institution of judicial review are adequate to the nation’s present needs and that this warrants the nation’s “respectful deference” for the Constitution as a whole. But, charitably put, whether Article V and judicial review are adequate for us to accomplish the large tasks ahead is anything but a settled fact. It’s at best an open question. Respectful deference to the Constitution would make sense if the nation were actually making changes that it needs, in which case deference to the instruments of change wouldn’t be an issue. Deference would also make sense if the question of competence were closed – closed against the Constitution. Deference in this latter situation would be like palliatives for dying patients. Weiner thus ends in paradox: his position would make sense only as a response to irreversible constitutional failure.
The American system is in trouble. Emulating the founders’ conduct might save it; “respectful deference” to the Constitution won’t save it.