Reflections on the Fundamental Law
I first came across Russell Kirk’s writing forty-two years ago, when I was a student at the University of Virginia. I have a very clear memory of the day in the Alderman Library periodical reading room. Turning the pages of the Yale Review, I found his essay on the Western Isles of Scotland. The style, scholarship, and values expressed in it made a deep impression on me, as have all his works over the years. He is a writer who embodies all the best in our civilization, the civilization born of the people of the British Isles and transferred across the Atlantic to America—now in danger of becoming a lost civilization.
This latest work from his hand, The Conservative Constitution, describes in rich scholarly detail the origins of the basic law of the land, the character and background of the fifty-five framers of that law, the intent they had in drafting its numerous provisions, and how the document has been interpreted and misinterpreted since it went into effect in the spring of 1789. He offers the most convincing documentation for the conservative purpose that guided the framers and shaped the document. He makes clear how fortunate the American people have been in the survival of their fundamental law. But he also reveals the changed character of the United States in the past forty-odd years and how the U.S. Constitution has been undermined, creating conditions at law that contravene the aims of the framers and the principles that shaped American life in the eighteenth century.
Each chapter of this book contains rich offerings from Kirk’s great store of scholarship. America’s “Present Discontents,” to use his phrase, are thoroughly explained in wide historical perspective. He notes, for example, that the United States, viewed by many as the great conservative power in the world, “has been falling to ruin since 1914.” The downward acceleration, the author asserts, became marked in the mid-1940’s. In an immensely powerful chapter on “The Constitution and the Antagonist World,” Kirk states that “American laws and social institutions rest upon the moral postulates of the Christian religion.” Since the 1940’s, he writes, “The Supreme Court majority, and a good many other federal and state judges, have seemed to hold that religion of any sort is suspect and should be excluded from public life.” He rightly states that if their view prevails and “works changes in our unwritten constitution of custom and convention, then very grave consequences are liable to develop before the end of the century.”
Indeed Dr. Kirk amply illustrates the consequences that have already resulted from court rulings, misinterpretations of the Constitution, over almost half a century. The press is full of news regarding these consequences, such as Dial-A-Porn, the distribution of condoms to school children, the banning of prayer in schools or mention of the divine, metal detectors at school entrances to prevent “students from entering school buildings with pistols or knives in their book bags.” Unfortunately the dominant media fail or refuse to link these shocking social phenomena to the court decisions and public policies from which they arise.
These terrible developments, Dr. Kirk makes clear, stem from the creation of a wall between religion and public education, a wall that denies America’s children access to religious values. Indeed he shows how the Supreme Court has distorted constitutionally protected freedom of religion into a doctrine of freedom from religion. One of the most important chapters in The Conservative Constitution is “The Supreme Court on Pornography.” The unwritten constitutional guarantee of decency in American life has been shredded. “Addiction to pornography,” Kirk observes, was not a serious affliction until after World War II. He makes the interesting observation that “that great struggle injured public morality in diverse ways, arousing sexual appetites and besmirching the moral imagination . . .” In the 1950’s came the Supreme Court decision that denied the constitutionality of state anti-obscenity laws. Today, anything goes. Films in neighborhood theaters portray sexual acrobatics, and the language used in films and other media has been brutalized beyond anything Americans could have imagined a half century ago. The First Amendment has been used to permit the airing of what is unspeakable and degrading to human beings. This is described in fashionable, intellectual circles as “freedom.” Dr. Kirk rightly charges that “the more successful pornographers have acquired fortunes with which to defend themselves and their sordid empires.” There is a host of law school professors, jurists, politicians, and other lobbyists dedicated to helping the smut peddlers. The result of the tidal wave of pornography—the destruction is of the decencies essential to a civilized society that treats human life as dignified and precious.
Kirk devotes a number of chapters to pressing contemporary issues related to the Constitution. Other parts of this book explore the fundamentals of the Constitution and Constitution-making. In the process, he clears away many popular misunderstandings such as the equating of the American “Revolution” with the French Revolution, the latter being a true Totalitarian Revolution in the vein of the Russian Revolution. Dr. Kirk explains that the American War of Independence was a preventive movement waged by Englishmen who were simply asserting their historic rights as Englishmen. The Constitution wasn’t created by ideologues, but was “the product of American mores, convictions, customs, and previous political experience.” Today, alas, American customs have undergone tremendous change as a result of forty years of judicial legislation.
Dr. Kirk explores the mind and manners of the fifty-five framers to gauge their intent in fashioning the Constitution. The framers belonged to the “natural aristocracy” of the colonies. They were classically educated gentlemen who were “orthodox members of one of the established Christian communions.” Kirk says they drew “their primary assumptions about the human condition . . . from the Bible and (many of them) from the Book of Common Prayer.” This shows the illogic of saying that this country wasn’t founded as a Christian country. It was founded as a country without an established church, but despite this historical truth, the courts have substituted a secular humanist religion for the faith of our fathers. As Kirk writes, “Religion went down the Memory Hole.”
Among the most chilling words in this book are Dr. Kirk’s warning, “We have now in America a genuine proletariat . . .” He reminds us that Lord Macaulay, in his famous critique of the U.S. Constitution, said that “the Huns and Vandals that ravaged the Roman Empire came from without . . . Your Huns and Vandals will have been engendered within your own country by your own institutions.” Anyone who considers the wastelands of once-great American cities and the guerrilla-urban terrorist wars that are waged in their streets against law-abiding people is aware of this threat. The proletarianization of urban America endangers every aspect of civilized life in this country and provides cause for legitimate fear that despotism lies in America’s future.
One of the most valuable points Dr. Kirk makes in this book is that the U.S. Constitution can’t be transplanted. It arose from the social, cultural, and political inheritance of British settlers on these shores. Other nations lack this heritage. Hence the constitutions drafted in Third World countries since the 1950s have proved to be mere scraps of paper. Nevertheless, the crusaders for one-man, one-vote democracy worldwide have been unwilling to recognize this reality. Kirk says that both Republican and Democratic national administrations have pursued the mirage of Third World constitutionalism, imagining that these countries could manufacture basic laws with the enduring qualities of the U.S. Constitution. He writes: “The naïveté about the transplantability of American institutions, incidentally, afflicts a good many of the folk nowadays called ‘neoconservatives,’ who sometimes seem to fancy that if only we would shout loudly and often enough the words ‘democracy’ and ‘democratic capitalism,’ by some magic and a measure of American support the world could be transformed upon our model.”
The Conservative Constitution is an essential text for serious students of constitutional law and the American political system. It also is an important work of historical scholarship, illuminating the background and outlook of the framers of the nation’s fundamental law.
“Great states with good constitutions develop when most people think of their duties and restrain their appetites. Great states sink toward their dissolution when most people think of their privileges and indulge their appetites freely. This rule is as true of democracies as it is of autocracies. And no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention, affirms an enduring moral order of obligation and personal responsibility. . . .
“The crash of empires and the collapse of constitutions have blinded and defended most of the world since 1914. Only American territories and American laws have stood little touched amidst the general ruin. It is not accident that will preserve them for posterity. Of those Americans who dabble in politics at all, many think of such activities chiefly as a game, membership on a team, with minor prizes to be passed out after the latest victory. Yet a few men and women, like Burke, engage in politics not because they love the game, but because they know that the alternative to a politics of elevation is a politics of degradation. Let us try to be of their number.”
—Russell Kirk, The Conservative Constitution
Anthony H. Harrigan (1925–2010), the author, over the past four decades, of several books on current affairs, had, at the time of writing, begun work on a study of the future of the Great Plains—once called the Great American Desert.
Posted: January 27, 2013 in Best of the Bookman.