Conserving the Constitution

defending the republic

Defending the Republic: Constitutional Morality in a Time of Crisis; Essays in Honor of George W. Careyimage
Bruce P. Frohnen and Kenneth L. Grasso, eds., ISI Books, 352 pages


By: Mark Nugent

In American politics, everyone claims to be on the side of the Constitution. A return to our constitutional Republic was, of course, the predominant theme of Ron Paul’s presidential campaign and is central to the alternative Right that has coalesced in its wake. But mainstream politicians also claim to follow the Constitution, despite their support of unbridled judicial lawmaking, far-reaching regulation of virtually all economic activity, and global imperial crusades. Even a sincere call to return to the plain meaning of the Constitution may yield more questions than answers. How is the document to be interpreted, what commitments does it imply for us as a nation, and what is the nature of the Republic that it was designed to govern?

George W. Carey, professor of government at Georgetown University, has dedicated his career to addressing these questions. Carey is arguably the pre-eminent constitutionalist conservative alive today. Edited by Bruce Frohnen and Kenneth Grasso, Defending the Republic: Constitutional Morality in a Time of Crisis is a collection of essays examining Carey’s thought and offering reflections on some of the primary themes of his scholarship. The editors’ introduction and Frohnen’s essay “George Carey on Constitutions, Constitutionalism, and Tradition” together provide a penetrating overview of the full range of Carey’s academic work.

Carey began his scholarly career by working closely with the political theorist Willmoore Kendall, who was a prominent, if unorthodox, figure in the post-World War II conservative movement. After his mentor’s death in 1968, Carey assembled a series of Kendall’s lectures, amplified by material of his own, into The Basic Symbols of the American Political Traditionimage, a classic text that remains indispensable for understanding the religious and philosophical matrix that gave rise to the Constitution.

A symbol, in this context, refers to a concept or commitment by which a people conceives of its purpose in history. In Basic Symbols, Carey and Kendall examine the political tradition of the early American Republic by tracing the evolution of its symbols through the history of the colonies, beginning with the Mayflower Compact. These basic symbols eventually expressed themselves in the Constitution, The Federalist, the Declaration of Independence, and the Bill of Rights.

The “official literature,” as Carey and Kendall term our erroneous modern-day understanding, holds that our supreme ideals as a nation attain their archetypal expression in the Declaration of Independence: the equality of all men and their possession of sacred, inalienable rights that cannot be abridged by government. The Constitution, according tothe official narrative, is a reactionary document—its various checks and balances were constructed to thwart the democratic will of the people and the egalitarian impulses that underlay the Revolution. But the Bill of Rights was soon engrafted onto it, supplying a legal commitment to individual rights. This is where we get the idea of America as a unique “propositional nation,” founded upon abstract, universal ideals, rather than an actual set of communities bound to a specific place, time, and culture.

According to Carey and Kendall, “the supreme symbols of the American tradition,” as they were understood at the time of the Founding, are “the symbols of a virtuous people through deliberative processes striving to achieve and advance their declared purposes which involve, inter alia, better ordering with justice”—that is to say, the common good. While the legislature is not constrained by formal rules (what Madison called parchment barriers) concerning the protection of individual rights, it is restrained by its commitment to deliberation, consensus, and just laws.

This commitment expresses itself in the Constitution through structural features that are designed to foster deliberation and consensus and to discourage oppressive measures from being passed by bare majorities. Moreover, while no exact boundary between state and federal authority is spelled out in the Constitution, theauthority of Congress is limited to certain specifi c areas, leaving the states a broad measure of autonomy to govern themselves as their citizens see fit.

In short, the Constitution as it was originally understood “is clearly nomocratic in character, largely concerned, that is, with providing rules and limits for the government through which the people express their will,” according to Kendall and Carey. But in the modern conception, “the Constitution is increasingly viewed from a teleocratic perspective as an instrument designed to fulfill the ends, commitments, or promises of the Declaration.” The modern regime, in other words, prizes egalitarian ends over structural and procedural means.

Carey’s career can be seen as a sustained defense of the older, “nomocratic” understanding of the Constitution and an examination of its corruption into our modern “teleocratic” regime. In his scholarship on the Constitution, Carey pays particular attention to The Federalist, which he sees as an essential source for determining the intended operation of the federal government and its properrelationship with the states. The Federalist also sheds light on the “constitutional morality” that provides tacit rules for the operation of government unstated in the text of the Constitution, such as the respect and restraint each branch of government should show towards the prerogatives of the other branches.

In the early Republic, the legislature expressed the deliberative sense of the people, and therefore naturally predominated over the other branches. But the task of representation was not restricted to the legislative bodies, as Gary Gregg writes in his essay “No Presidential Republic: Representation, Deliberation, and Executive Power in The Federalist Papers.” While representatives bring “a knowledge of the conditions and interests of their local constituency,” the Senate, being “further insulated from the passions that may from time to time sweep through the people ... introduces order and stability.” This leaves the presidency, through the power of the veto, to check “improper laws” and defend constitutional institutions from attacks emanating from imprudent congressional majorities.

The derailment of the American political tradition, however, has resulted in a presidency that has attained vastly expanded power and initiative. This derives from a messianic aspect of our latter-day political tradition: an idealized America is presented not as a virtuous people enacting wise policy through deliberation and consensus but as a centralized state led by “an apostolic succession of great leaders,” each moving America closer to an egalitarian ideal.

A particularly belligerent messianic ideology stemming from the corruption of our political tradition is neoconservatism, which Claes G. Ryn examines in his contribution to this volume, a trenchant essay titled “Neo-Jacobin Nationalism or Responsible Nationhood?” Despite their appropriation of the term “conservative,” the neoconservatives’ ambition to put the United States at the forefront of a global democratic revolution places them decidedly toward the left end of the political spectrum. Ryn labels them “neo-Jacobins,” after the radicals of the French Revolution, who also saw themselves as the vanguard of a violent struggle to liberate mankind—to force men to be free. The neoconservative movement finds itself unconstrained by a respect for the Constitution or for the culture and traditions from which it arose. Despite the elevated rhetoric of neoconservative ideology, “the will to power is throwing off inner and outer checks,” Ryn writes. “Neo-Jacobinism is ultimately an ideological front for the desire to dominate others.”

While the neoconservatives primarily direct their aggression toward those hapless foreign populations stubborn enough to resist “American values,” the modern Supreme Court focuses its destructive powers on the American people themselves. The judiciary has enabled the dramatic centralization of power in the federal government, and through its decisions on such issues as school prayer, criminal justice, and abortion, it has removed some of the most critical and contentious issues we face from the purview of legislative deliberation.

In his essay “Rights in a Federalist System,” Francis Canavan attempts to trace the philosophical origins of the liberationist ideology that animates the Supreme Court’s self-imposed role as the interpreter and guarantor of an ever-expanding sphere of individual rights (administered, of course, by a vastly powerful centralized state). Canavan believes the roots of this development lie in the social contract theories of John Locke and Thomas Hobbes. These theories view “civil society as a mutual nonaggression pact.” But by removing decision-making power from states, towns, and other sources of authority such as churches and families, centralization and judicial activism actually degrade those intermediate institutions. “As the late George H. Sabine said,” Canavan writes, “the absolute sovereign and omnicompetent state is the logical correlate of a society which consists of atomic individuals.’”

The ideology that forms the core of liberationist Supreme Court decisions can also be seen as a triumph of one side of a cultural divide over another, as Kenneth Grasso argues in “Religious Pluralism and the American Experiment: From Articles of Peace to Culture Wars.” Colonial America was religiously pluralistic in the sense that a wide variety of sects found their home there, but operated under a broad cultural consensus informed by the basic tenets of Christianity that they shared. To accommodate the religious diversity of the United States, and to provide a measure of “civic unity” despite this diversity, the concepts of federalism and limited government left the resolution of contentious moral issues in the hands of states, local communities, and churches. The First Amendment is an expression of the “articles of peace” that place decision-making on moral and religious questions outside the purview of the central government, whose authority extends only to secular matters.

But the growth of both centralized, unlimited government and cultural secularism has undermined this consensus. For one thing, the dramatic expansion of government into such formerly private spheres as health care and education leads to intensified debate and strife over issues such as abortion and religious observance in schools. Additionally, the “massive expansion of federal power and a dramatic decline in the power and autonomy of state governments” robs “localities of their authority to handle matters at the very core of their being.”

Much of this newly centralized authority emanates from the Supreme Court, “an institution significantly less equipped to succesfully navigate the treacherous waters of policymaking in a pluralist society” than legislative bodies. In sum, the usurpation of legislative powers by the judiciary and the displacement of state and local decision-making by centralized authority are both causes and symptoms of the disorder of our current regime.

Young Americans for Liberty and other institutions of the freedom movement are now attempting to return to our constitutional moorings. The deeply disordered conception of our system found in progressive and neoconservative notions has come to be institutionalized in our government and deeply entrenched in the popular consciousness. Any kind of restoration of our old constitutional norms will be a formidable task indeed. Reviving the American Republic will require a deep and textured understanding of the Constitution and the civil society for which it was created. Such an understanding requires renewed and continuing attention to the work of scholars such as George Carey and those who build upon his thought in Defending the Republic.

Mark Nugent is an attorney and Web designer living in Arlington, Virginia. He blogs at spinline.net/blog.