“Your Constitution is all sail and no anchor.”
Consensus on the benign motives of our Founding Fathers and the nature of the Constitution that had persisted through the 19th century began to crack at the beginning of the 20th under assaults from the Progressives. It has disintegrated at an accelerating rate since, so that today we, as a people, are uncertain of our legacy. In this work, addressed to the “common reader,” Russell Kirk does not settle any of the controversies that have given rise to this disintegration. Nor does he appreciably advance our understanding of the subtle disputes over the nature of our founding that have emerged in recent decades. But he does make some interesting points that are bound to add fuel to the fires.
The Conservative Constitution consists of lectures that have been spliced together into 15 chapters, only loosely connected with each other by their focus on some aspect of our constitutional order and certain problems surrounding its meaning and operations. The first six chapters, in one fashion or another, deal with the Framers, their goals, and the influences on their thinking; the remaining chapters with disparate matters such as pornography, the differences between our Bill of Rights and the French version of the “rights of man,” the controversy over “original intent,” the intended meaning of the Establishment clause of the First Amendment, the constitutional protection of property, and, among others, secular humanism.
At the outset, Kirk maintains that “whatever may be said of certain Supreme Court decisions since the Second World War, the Constitution continues to function today as a conservative framework for the Republic.” “No other national constitution of our time,” he emphasizes here and throughout, “extends such protection to Permanent Things.” Now, in Kirk’s estimation, we are heavily indebted to Edmund Burke for the conservative character of our Constitution. The American patriots, those who fought for independence, were as one with Burke on at least one significant point: they viewed themselves as fighting for a restoration of the rights and liberties that were part of the English tradition. In contrast to the French Revolution, then, the American Revolution was not really a revolution at all; the Americans, unlike the French revolutionaries, “intended no radical break with the past.” Rather, as Kirk writes, “they thought of themselves as conservators rather than innovators”; in their resistance to the innovations of George III “they were endeavoring to prevent, rather than to make, a revolution.”
In dealing with Burke’s influence on the Constitution, Kirk goes beyond pointing up a mere coincidence of a “conservative” outlook between the Framers and Burke and undertakes to show the direct impact of Burke’s views on their thinking. In this endeavor, which moves into relatively virgin territory, Kirk is far from convincing. For instance, he places great significance on what he perceives to be the correspondence between “the general frame and substance of the United States Constitution” and “the political principles of the Rockingham Whigs, whose manager and intellectual chief Burke was.” In this regard, however. Kirk acknowledges that Burke probably would not have endorsed the Constitution without reservations, chief among them being its provision for the separation of powers. Yet, given the fact that the separation of powers is a fundamental principle of our constitutional order—one that accounts in large measure for its organization, structures, and procedures—such a reservation cannot be lightly dismissed. In fact, it belies Kirk’s argument concerning Burke’s enormous influence on our Founders, the more so as Hamilton points out in Federalist 9 that key elements of the separation of powers—e.g., “distribution of power into distinct departments,” “the introduction of legislative checks and balances”—will serve to spare the new republic from the “perpetual vibration between the extremes of tyranny and anarchy” that have proved fatal to previous republics. Nevertheless, even with regard to the matter of separated powers—a constitutional principle that enjoyed virtually unanimous support at the time of ratification—it is fair to say that the Founders did share Burke’s temper and concerns: building on their own political traditions and practices, they were concerned with establishing institutions that would provide orderly and decent government. Certainly they did not live in the gnostic world of the French revolutionary ideologues with their visions of a perfect order built upon reason.
While Kirk does not make a convincing case that Burke had a significant impact on the Founders, he is on firmer ground in arguing that John Locke cannot be regarded as the philosopher of the Constitution. “If we turn to the books read and quoted by American leaders near the end of the eighteenth century,” he contends, “we discover that Locke was but one philosopher and political advocate among the many writers whose influence they acknowledged.” Leaving Burke to the side, among those of greater significance for the Founders, he believes, were Montesquieu and Hume (both of whom, unlike Locke, are cited in The Federalist): Montesquieu because he provided them with “a theory of checks and balances and of the division of powers”; Hume because he pointed to the possibilities of an extended republic with a multiplicity and diversity of interests that could provide stability, free from oppressive majorities.
Consonant with his views on Locke and Burke, Kirk rejects the notion that the first part of the Declaration of Independence, with its “appeal . . . to self-evident truths,” embodies the supreme values of the American tradition. With Carl Becker he holds that “the phrases of the Declaration [particularly those of the second paragraph], congenial to the philosophes, were calculated to wake strong sympathy in France’s climate of opinion.” For this reason, he regards the Declaration’s justification for independence as a departure from “the constitutional argument of the Americans that had been advanced ever since the passage of the Stamp Act. Until 1776, protesting Americans had pleaded that they were entitled to the rights of Englishmen, as expressed in the Bill of Rights of 1689.” What is more, whereas the rights of Englishmen had emerged from the existential realities of the British tradition, the Declaration advances “fanciful claims of natural right” derived from “a priori theories.” Such a view, it should be noted in passing, is bound to raise hackles. It is. for example, an anathema to the Straussians, who look upon the Declaration as the centerpiece of our political heritage.
Continuing in this vein, Kirk devotes a chapter to the differences between our Bill of Rights and the French Declaration of the Rights of Man. Here, again, he notes the Burkean character of our formulation of rights; they constitute “sanctions” derived from “ancient statute and charter, the common law, precedent, British usage, colonial custom.” “In effect,” Kirk notes, “the guarantees and protections of the first eight Amendments were principally reaffirmations . . . of rights and immunities already established and accepted as a matter of course in the thirteen states.” In contrast, the Rights of Man were derived from “natural-right [not natural law] doctrine” and “the abstractions and the visions of such speculative minds as Rousseau.” Thus, the rights proclaimed were “amorphous,” lacking “legal precedent,” and “flouted . . . often by the very neophyte politicians who had promulgated them.”
The foregoing illustrates what I believe to be Kirk’s chief contribution, namely, showing that the gnosticism that characterized the French Revolution, and against which Burke inveighed in his Reflections, is not part of the American founding experience—save, perhaps, as it seeps in through the likes of Jefferson. As remarked above, however, we cannot legitimately infer from this that Burke’s views exercised a profound influence on our Founding Fathers. In fact, in my view, it is quite likely that if Burke had never lived, the Constitution would have turned out exactly as it did. What can be said with a high degree of certainty is that the Founders shared Burke’s understanding of the place of man in the order of being, the organic nature of civil society, and the limitations of abstract reason in the affairs of men, as well as his respect for tradition and fear of capricious and arbitrary government.
Finally, as intimated above, save for certain decisions by the Supreme Court in recent decades. Kirk believes our constitutional order to be in fairly good health, still operating well within the realm of Burkean prescriptions. He even suggests that the excesses of the judiciary may be a thing past because recent appointments to the Court make “radical change in constitutional interpretation . . . improbable” and hold out prospects that “some ruling of recent years will be found in error.” Indeed, his final paragraph begins: “The crash of empires and the collapse of constitutions have blinded and deafened most of the world since 1914. Only American territories and American laws have stood little touched amidst the general ruin.”
Probably most traditionalists (myself included) will not share his estimate of our constitutional health. In fact, they might well regard it as naive. To begin with, they would no doubt point out that the problems with judicial power cannot be remedied by a mere change of personnel; that they involve far more than simply overturning the outrageous decisions rendered by the Court in recent decades. In their view, which is supported by our finest constitutional historians and commentators, the problems posed by the prevailing views of judicial authority are critical because they undermine our traditional understanding of constitutionalism, republicanism, the separation of powers, and the rule of law. When, for instance, the judiciary successfully asserts a power to legislate, to tax (!) in order to carry out its mandates, and then to judge its own actions, we have judicial tyranny pure and simple. The death of federalism, the breakdown of our system of criminal justice, the pollution of our moral environment, and the invention of new rights, are all the by-products of an arrogant, unrestrained judiciary guided by a liberal agenda that pays scant heed to our constitutional moorings. All of this, no matter what one’s view of the judiciary, surely represents an enormous departure from the constitutional and moral legacy of the Framers. But this is not all: that the judiciary should be able to impose its arbitrary will, without serious resistance from the other branches, indicates the degree to which there has been a sea change in our collective thinking, from the natural law of Burke and our Founders to the ideology of the Enlightenment.
In sum, contrary to what Russell Kirk asserts, there is ample evidence that the Constitution of which he writes in this book is, in fact, dead.
[The Conservative Constitution, by Russell Kirk (Washington, D.C.: Regnery Gateway) 241 pp., $22.95]