and decent government. Certainlynthey did not live in the gnostic world ofnthe French revolutionary ideologuesnwith their visions of a perfect ordernbuilt upon reason.nWhile Kirk does not make a convincingncase that Burke had ansignificant impact on the Founders, henis on firmer ground in arguing that JohnnLocke cannot be regarded as the philosophernof the Constitution. “If we turnnto the books read and quoted by Americannleaders near the end of the eighteenthncentury,” he contends, “we discovernthat Locke was but onenphilosopher and political advocatenamong the many writers whose influencenthey acknowledged.” LeavingnBurke to the side, among those ofngreater significance for the Founders, henbelieves, were Montesquieu and Humen(both of whom, unlike Locke, are citednin The Federalist): Montesquieu becausenhe provided them with “a theorynof checks and balances and of thendivision of powers”; Hume because henpointed to the possibilities of an extendednrepublic with a multiplicity andndiversity of interests that could providenstability, free from oppressive majorities.nConsonant with his views on Lockenand Burke, Kirk rejects the notion thatnthe first part of the Declaration ofnIndependence, with its “appeal … tonself-evident truths,” embodies the supremenvalues of the American tradition.nWith Carl Becker he holds thatn”the phrases of the Declaration [particularlynthose of the second paragraph],ncongenial to the philosophes, were calculatednto wake strong sympathy innFrance’s climate of opinion.” For thisnreason, he regards the Declaration’snjustification for independence as a departurenfrom “the constitutional argumentnof the Americans that had beennadvanced ever since the passage of thenStamp Act. Until 1776, protestingnAmericans had pleaded that they werenentitled to the rights of Englishmen, asnexpressed in the Bill of Rights ofn1689.” What is more, whereas thenrights of Englishmen had emergednfrom the existential realities of thenBritish tradition, the Declaration advancesn”fanciful claims of naturalnright” derived from “a priori theories.”nSuch a view, it should be noted innpassing, is bound to raise hackles. It is.nfor example, an anathema to thenStraussians, who look upon the Declarationnas the centerpiece of our politicalnheritage.nContinuing in this vein, Kirk devotesna chapter to the differences betweennour Bill of Rights and thenFrench Declaration of the Rights ofnMan. Here, again, he notes the Burkeanncharacter of our formulation ofnrights; they constitute “sanctions” derivednfrom “ancient statute and charter,nthe common law, precedent, Britishnusage, colonial custom.” “Inneffect,” Kirk notes, “the guaranteesnand protections of the first eightnAmendments were principally reaffirmationsn… of rights and immunitiesnalready established and accepted asna matter of course in the thirteennstates.” In contrast, the Rights of Mannwere derived from “natural-right [notnnatural law] doctrine” and “the abstractionsnand the visions of suchnspeculative minds as Rousseau.” Thus,nthe rights proclaimed were “amorphous,”nlacking “legal precedent,”nand “flouted . . . often by the verynneophyte politicians who had promulgatednthem.”nThe foregoing illustrates what I believento be Kirk’s chief contribution,nnamely, showing that the gnosticismnthat characterized the French Revolution,nand against which Burke inveighednin his Reflections, is not part ofnthe American founding experience —nsave, perhaps, as it seeps in through thenlikes of Jeflisrson. As remarked above,nhowever, we cannot legitimately infernfrom this that Burke’s views exercised anprofound influence on our FoundingnFathers. In fact, in my view, it is quitenlikely that if Burke had never lived, thenConstitution would have turned outnexactly as it did. What can be said withna high degree of certainty is that thenFounders shared Burke’s understandingnof the place of man in the order ofnbeing, the organic nature of civil society,nand the limitations of abstract reasonnin the affairs of men, as well as hisnrespect for tradition and fear of capriciousnand arbitrary government.nFinally, as intimated above, save forncertain decisions by the SupremenCourt in recent decades. Kirk believesnour constitutional order to be in fairiyngood health, still operating well withinnthe realm of Burkean prescriptions. Heneven suggests that the excesses of thennnjudiciary may be a thing past becausenrecent appointments to the Courtnmake “radical change in constitutionalninterpretation . . . improbable” andnhold out prospects that “some ruling ofnrecent years will be found in error.”nIndeed, his final paragraph begins:n”The crash of empires and the collapsenof constitutions have blinded and deafenednmost of the wodd since 1914.nOnly American territories and Americannlaws have stood little touchednamidst the general ruin.”nProbably most traditionalists (myselfnincluded) will not share his estimate ofnour constitutional health. In fact, theynmight well regard it as naive. To beginnwith, they would no doubt point outnthat the problems with judicial powerncannot be remedied by a mere changenof personnel; that they involve farnmore than simply overturning the outrageousndecisions rendered by thenCourt in recent decades. In their view,nwhich is supported by our finest constitutionalnhistorians and commentators,nthe problems posed by the prevailingnviews of judicial authority are criticalnbecause they undermine our traditionalnunderstanding of constitutionalism,nrepublicanism, the separation of powers,nand the rule of law. When, forninstance, the judiciary successfully assertsna power to legislate, to tax (!) innorder to carry out its mandates, andnthen to judge its own actions, we havenjudicial tyranny pure and simple. Thendeath of federalism, the breakdowri ofnour system of criminal justice, thenpollution of our moral environment,nand the invention of new rights, are allnthe by-products of an arrogant, unrestrainednjudiciary guided by a liberalnagenda that pays scant heed to ournconstitutional moorings. All of this, nonmatter what one’s view of the judiciary,nsurely represents an enormous departurenfrom the constitutional and moralnlegacy of the Framers. But this is notnall: that the judiciary should be able tonimpose its arbitrary will, without seriousnresistance from the other branches,nindicates the degree to which there hasnbeen a sea change in our collectiventhinking, from the natural law of Burkenand our Founders to the ideology ofnthe Enlightenment.nIn sum, contrary to what RussellnKirk asserts, there is ample evidencenthat the Constitution of which henwrites in this book is, in fact, dead. <^nAPRIL 1991/35n