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Volume 38, Number 1 (Spring 1998)

The Character of Our Constitution

book cover imageRights and Duties: Reflections on Our Conservative Constitution
by Russell Kirk.
Spence Publishing Company, 1997,
208 pp., $28 cloth.

Bruce Frohnen

The present book includes all of Kirk’s earlier work, The Conservative Constitution (too long unavailable), and adds to it a number of important, more recent writings. It is unfortunate, however, that this edition does not include any of Kirk’s fine essays on America’s federalist tradition, which he preferred to refer to as “territorial democracy,” following Orestes Brownson. This is regrettable because Rights and Duties remains the single best volume written on our constitutional heritage and its contemporary ills.

Of course, for Kirk our constitutional heritage is not exhausted by the provisions of any single document. Kirk recognized that it was our unwritten constitution that gave our nation and its people the order and freedom necessary for a good life lived in common. Accordingly, Rights and Duties focuses on the institutions, beliefs, and practices that form the American character and polity and the role of our written Constitution within that context.

Early in the book, Kirk points out that our “Constitution had been designed by its Framers, in 1787, to conserve the order and the justice and the freedom to which Americans had grown accustomed.” Thus Kirk takes issue with ideologues who seek to convince us that America was created ex nihilo through the drafting of an abstractly philosophical Declaration of Independence. The Declaration, and the War for Independence, must be seen as our Founders saw them: as defensive measures intended to protect Americans’ traditional and chartered rights from an overreaching English Parliament.

The Constitution was not, as many maintain, an attempt to institutionalize an abstract, natural rights philosophy encapsulated in the first paragraph of the Declaration of Independence. Indeed, such a vision misreads the Declaration itself, the bulk of which consists of common-law charges against George III (and, through him, the English Parliament). The War for Independence was justified, according to the Declaration, because America’s English rulers had violated the inherited rights of Englishmen living in the American colonies. Kirk notes that the Declaration, written for French eyes to garner French support, includes abstract statements regarding human rights. But the Declaration’s abstractions were written in defense of a concrete way of life, to which Americans had become accustomed and which they had inherited and made their own. The war was fought for the same reasons and, by and large, in the same spirit.

As Kirk points out, the War for Independence was a revolution, not made, but prevented. By breaking with an increasingly tyrannical colonial ruler and setting up mixed, limited constitutional government, our Founders sought to preserve the way of life developed in America over a hundred and fifty years of history, with roots going back several more centuries in Great Britain. It was never America’s purpose—unlike France’s—to pursue the ideal of perfect freedom. Where French abstract rights fell victim to the very ideology that gave them birth, American historical rights were firmly enmeshed in the fabric of society. As Edmund Burke said of the English, the Americans held their rights as an inheritance. They valued their rights because they formed an integral part of their lives, ordering their daily interactions and providing a framework within which to form local communities.

Thus the Constitution no more created our nation or people than had the Declaration. Rather, each was an attempt to preserve a pre-existing order. As Kirk points out, this is a fundamentally Burkean task. Unfortunately, too few students of our Founding recognize Burke’s influence thereon, preferring to dismiss Burke as if his Reflections on the Revolution in France, written after the Constitution, were his only work. In a fine essay, Kirk argues that Burke’s influence was in fact deep and widespread. This influence was in part due to Burke’s several speeches in Parliament, during the prelude to the War for Independence, defending the colonists’ efforts to retain their inherited rights. Even more important, however, was Burke’s often forgotten role as editor of the highly influential and widely read Annual Register, through which educated Americans got their news of British politics and many of their “old Whig” views.

Central to the old Whig understanding was a conviction that the practical compromises of politics must take place within a preexisting order of tradition and morality. Thus a Constitution will help maintain private rights and public order only if it fits the nature of the people involved. According to Kirk, this is why the American Constitution, so successful at home, has failed so badly when exported abroad. It also explains why constitutions are less important in conserving order and freedom than is the moral character of the people.

This is not to say, however, that constitutions, and governmental structures in particular, are not important. A constant theme of Kirk’s work is the danger posed to the people’s moral character, and through it order and freedom, by our expanding and centralizing government. The danger comes not only from what the government does, but from what it prevents the people from doing for themselves. By forcing self-government and self-help out of the center of our existence, expansive government saps the people’s will and moral vigor. Kirk recognized in Washington’s insistence on regulating ever more aspects of the people’s lives a progressive replacement of the light hand of tradition with the firm yoke of political proclamations, and the threat of official violence standing behind all such proclamations, from the most important law to the most niggling regulation. Increasingly accustomed to acting or refraining from action only in response to threats of force, men’s sense of right and wrong is replaced by a primitive calculation of the likelihood of punishment for each particular act. Moral ties and public trust disintegrate, manners and traditions of good conduct atrophy and disappear. Over time, the people lose the capacity for self-government and the rulers must dispense with the semblance of liberty in order to control a people no longer capable of controlling itself.

In response to this danger, so-called “civil libertarians” have elevated our Constitution’s Bill of Rights to the status of holy writ. But this attempt to stretch parchment protections to cover the vast realm once protected from government interference by custom and the tradition of limited government is doomed to fail. As Kirk points out, parchment rights can protect ordered liberty only if the customs necessary to sustain them are kept vital. That means both rights and duties are crucial; and judges who stretch rights beyond their proper, historically rooted boundaries and meanings undermine them by replacing habitual respect for inherited practices with abstract pronouncements requiring the threat of force to be even minimally effective. Only if the people, by and large, recognize and respect a right can it be effectively exercised. For example, when the Court proclaimed the “right” of neo-Nazis to march through Skokie, Illinois, home to thousands of Holocaust survivors, it violated the Constitution’s meaning and the consciences of the people. The “right” was not accepted, and the neo-Nazis, wisely for once, decided not to march. Indeed, the very definition of a right depends, as The Federalist puts it, “on the general spirit of the people and of the government.” Publius’ example, freedom of the press, remains relevant today. Even as the Court continues to uphold the “rights” of pornographers, politically incorrect campus newspapers continue to be burned and suppressed by university authorities and their henchmen. In the process, habits of reasoned public debate atrophy, as does true respect for law.

More fundamentally, thanks to the Supreme Court’s string of misinterpretations of the First Amendment’s Religion Clause, numerous school officials and local boards have for years been refusing to allow constitutionally protected free exercise of religion. Not only the prayers forbidden by the Court, but even the singing of Christmas carols have been effectively banned in many areas. Why? Because the Court has promulgated the false notion that any public statement with religious content is somehow dangerous if made by a public employee, or even if made by a private citizen, if on public property. The Court’s decades-long attack on religion in America has warped our Constitution and, worse, corrupted the people’s understanding of the proper, constitutionally sanctioned role of religion in public life. According to Kirk, such a course can bring only catastrophe: “No matter how admirable a constitution may look on 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.” This quotation points to Kirk’s often criticized emphasis on the need for public recognition of natural law, the unchanging moral order. Critics charge that this emphasis merely provides spurious justification for judge-made law. But, as Kirk shows, “natural law ought to help form the judgments of the persons who are lawmakers. . . . The civil law should be shaped in conformity to the natural law. . . . It does not follow that judges should be permitted to push aside the Constitution or statutory laws and substitute their private interpretations of natural law.”

Natural law tells us that we should seek the good and avoid evil. Because it is universal, in most cases it cannot tell us which public policy is best under the given circumstances. More than this, because natural law tells us to seek the good, and because we must have political order for any such pursuit, our first duty is to obey established authority so long as we may peacefully seek redress through existing procedures. This was the root of the “due process” agreed to by King John in Magna Carta. The accused were to be treated according to the law of the land, that is, according to historically rooted, generally accepted procedures. Natural law is not a detailed code of official conduct or blueprint for utopian government. It provides something far more important: the recognition that each of us is a limited but morally responsible creature. It tells us that a nation that allows its authorities to become hostile toward its own religious roots cannot long endure. By pointing us toward natural law, Rights and Duties provides a stern warning of our nation’s peril, as well as wise guidance to set us back on the right path. 

Bruce P. Frohnen was at the time of writing the senior speechwriter for U.S. Senator Spencer Abraham. He is the author of The New Communitarians: The Crisis of Modern Liberalism (University Press of Kansas, 1996).

Posted: November 18, 2012 in Best of the Bookman.

A culture is perennially in need of renewal. A culture does not survive and prosper merely by being taken for granted; active defense is always required, and imaginative growth, too.

Russell Kirk

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