The Politics of Prescription: Kirk’s Fifth Canon of Conservative Thought

Defending tradition is a difficult task in an age that is
predisposed to innovation and change. Yet that has been the
challenge to conservatives in the modern age. Modernity inverts
the conservative prejudice for prescriptive wisdom; it favors
change and innovation as the instruments of progress; it places
faith in what Edmund Burke called the “naked reason”; it arrogates
a wide array of abstract rights divorced from the concrete
moorings of historical experience, prescriptive wisdom, and
expedience; it has lost faith in a divinely inspired order that limits
the extent of moral, political, and social progress and makes
politics the art of the possible. There is a spirit to the modern mind
that is infused with Rousseauian sentiment; it rejects the sober
classical/Judeo-Christian view of the human condition and posits
the natural goodness of man. To the Rousseauist and Marxist
alike, traditional conventions are mere chains that prevent individuals
from creating a new age of freedom and equality. To the
positivist, much of religious tradition and social convention is
superstition that impedes social and scientific progress. These
characteristics of modernity are not easily defeated in favor of
tradition. They appeal to the modern desire to escape from the
bonds of prescription and set men free to follow their inclinations
or the abstractions of unaided reason.

Edmund Burke’s political theory was engendered in the
context of the unfolding drama of modernity. In particular, his
political ideas were a response to the rise of radical ideologies like
Jacobinism. But the circumstances of the eighteenth century may
have been worse than Burke surmised. Irving Babbitt recognized
by the early twentieth century that Burke had underestimated the
spiritual strength of radical ideologies bent on uprooting traditional
ideas and the prescriptive institutions of Western Civilization.
Burke dismissed the radicals of the eighteenth century as
“half a dozen grasshoppers…with their importunate chink.” The
men of tradition he compared to “thousands of great cattle,
reposed beneath the shadow of the British oak.” Although they are
silent, they outnumber and outweigh in character the “little,
shrivelled, meager, hopping, though loud and troublesome, insects
of the hour.” Babbitt, however, replies that “the little,
meager, hopping insects of the hour were representatives of an
international movement of a vast scope, a movement destined
finally to prevail over the prejudice and prescription that Burke
was defending.”¹

Russell Kirk was a student of both Burke and Babbitt.
Whatever the case may have been in the eighteenth century, Kirk
characterized the battle between radicalism and conservatism as
a rout. The modern age is defined, in part, by the triumph of
innovation over conservation. Yet, Kirk found reasons for hope.
His works make a significant contribution to the restoration of
historical consciousness through which the experiences of the
past can become a living force in the present. As he once stated,
“my endeavor is to help refurbish what Edmund Burke called ‘the
wardrobe of a moral imagination.'”² If the modern age has
stripped human consciousness of prescriptive wisdom, then Kirk
was intent on restoring to memory the wisdom of the ages.

In The Conservative Mind, Kirk defends the conservation of
prejudice and prescription against ideologies of radical change.
He, like Burke and Babbitt in earlier ages, understood the
consequences of giving way to a Rousseauian and Baconian spirit
of change that have united in the twentieth century under the
mantle of humanitarianism. The spiritual union of romanticism
and scientism makes defending tradition even more difficult than
it was for Burke. The promise of science and technology animated
by humanitarian sympathy makes those who defend tradition
appear to be obstacles to social and scientific progress. Conservatives,
it is said, defend tradition and custom because they are
unenlightened; they wish to maintain the conventional order
because it preserves their undeserved privileges and keeps the
lower classes from rising. The result is social and economic
inequality that must be dismantled by a state that is adequately
empowered to redistribute wealth and reorganize society in
accordance with ideologically-driven theories of universal rights.

Yet, Russell Kirk did more than reject radical political ideologies
that destroy established institutions. Like Burke, he was not
an antiquarian. His defense of tradition is theoretically substantive;
it is grounded in historical knowledge. He rejects neither
sentiment nor reason but he insists that each should be tethered
to historical experience in the form of prescriptive wisdom. His
numerous books and articles address various aspects of the
tension between the preservation of tradition and radical change.
He understood that historical experience lives in the historical
consciousness of individuals and the political, religious, and
social institutions of the living generation. Therefore, they can be
recalled to memory with the help of artists, poets, novelists,
historians, philosophers, and men of letters, who have the imaginative
power to bring them to life in the present age. In short,
historical experience has an indelible quality to it; as much as
reformers and radicals may try to escape it, they are bound by
history. This is not to say that change and reform were impossible
or unnecessary. But for Kirk, like Edmund Burke, prudent change
must maintain continuity with the past. To break radically from
the past, as the Jacobins did, is to deny one the advantage of
prescriptive wisdom and experience. It is, as Burke noted, to put
one on his own private stock of reason as opposed to availing the
bank and capital of the ages. He added that, “man is a most unwise
and a most wise being. The individual is foolish; the multitude, for
the moment, is foolish, when they act without deliberation; but
the species is wise, and, when time is given to it, as a species, it
almost always acts right.”³

Kirk provided a wealth of historical and theoretical evidence
to demonstrate the connection between tradition and civilized
life. In particular, he focused on three central aspects of tradition
that emanate from the human condition and that explain why
tradition is necessary. A man of exceptional learning and rational
power, Kirk knew the limits of reason and the power of imagination.
He also understood the moral duality of human nature;
human beings are divided between good and evil inclinations.
That permanent condition limits political and social progress. As
Kirk wrote, “poverty, brutality, and misfortune are indeed portions
of the eternal order of things; sin is a terribly real and
demonstrable fact, the consequence of our depravity, not of
erring institutions.”⁴ While Kirk recognized the existence of
universality, he argued that universality was found in particularity.
Tradition and custom were man’s way of grasping on to those
instances when universality was revealed or discovered in specific
experiences. Historical experience with universality, then, provides
an understanding of universality that can be used to recognize
truth, beauty, and good in different historical circumstances.
Abandoning tradition meant discarding these concrete experiences
of order, truth, and beauty. Without recourse to concrete
historical experience, individuals are prone to following abstract
ideologies like Marxism or liberal progressivism that inspire men
to war against the constitution of being.

Why is Prescription Necessary?

Prescription is necessary because of the human condition. Human
beings are born into a world that is ordered. Kirk, like
Aristotle, Cicero, and Aquinas, was aware that men are born into
a moral universe. The mundane order of political and social life
is inextricably bound to a higher universal order. Human beings
are powerless to change the laws of moral nature; they must abide
by their dictates or face the consequences of disorder: despair,
loneliness, misery, and anguish. Yet, human beings control human
law and it varies in its reflection of universality. How are human
beings to navigate the complexities of life given an imperfect
understanding of this universal moral order? In short, human
experience and the social and political conventions that embody
it are the guide. As Kirk writes, “Providence has furnished means
by which mankind may apprehend this moral universe. Tradition
and prescription are the guiding lights of the civil social man.”⁵
Kirk notes that Burke was influenced by Hooker on the necessity
of prescription. Burke could quote from memory Hooker’s line
that “‘The reason first why we admire those things which are
greatest, and second those things which are ancientest, is because
the one are the least distant from the infinite substance, the other
from the infinite continuance, of God.'” Kirk notes that this
sentence “expresses the soul of their prescriptive philosophy.”⁶
Tradition is not, however, self-interpreting. Tradition must be
combined with prudent judgment and expediency. In other words,
tradition is not a stagnant, abstract, reified blueprint that individuals
can simply imitate. Tradition and custom are rather living
vibrant ways of life that require renewal and restoration, creativity
and change. They must be followed in the same spirit in which
they were engendered and it is that spirit, as much as the content
of tradition, that breeds civilization. Burke called this disposition
“the spirit of a gentleman, and the spirit of religion.”⁷

Kirk attributed the lack of moral progress in the modern age
to several factors but chief among them was modern man’s revolt
from tradition. The modern mind is hubristic; it places too much
faith in its capacity to know truth or it has abandoned the pursuit
of truth in favor of ideological dogma. In short, modern man has
lost historical consciousness of the experiences and lessons of
past generations, what Burke called the wisdom of the ages. The
future depends on preserving continuity between the past and the
present. In fact, Kirk explains that the present and the past,
regardless of the current generation’s recognition of it, are
inextricably linked. Everything which the living possess has roots
in the spiritual and intellectual achievements of the past. Everything
man has—his body, his mind, his social order—is in large
part an inheritance from people long dead.

Why is the past, then, so vital to the living generation?
Without the benefit of historical experience, individuals live
without guidance and the tested judgment of previous generations.
In Kirk’s words, “unless men know the past, they are unable
to understand distinctions between what is permanent and what
is transient in their lives.”⁸ Tradition, then, provides standards
and norms by which the current generation can judge the social,
political, and intellectual currents of their time and discover their
moral responsibilities. As Kirk writes, “Many of our duties are not
voluntary; they are prescribed by the moral law.”⁹ Kirk means by
“norm” something specific. Norms are derived from the natural
law. They are rules of conduct that measure public virtue. They
attune individuals and societies to the universal moral order. Living
by these norms is the way that social harmony is created. To
violate norms is to set oneself against the grace of God, to plunge
into the depths of the moral abyss, and to cause social discord.

Ideology is destructive to genuine norms for two basic reasons.
First, ideology ends the search for the true, the good, and
the beautiful because it claims to represent the ultimate truth in
its ahistorical dogmas. It ends the process of reconstituting the
human understanding of universality. What is normative is replaced
by what serves the specific ideology’s doctrines. Second,
ideology destroys normative consciousness. Historical experiences
with universality are erased from memory either by state
control of ideas or by a concerted effort to recast them as
destructive to progress. Consider the plight of Winston Smith in
George Orwell’s 1984. Oceania is a society governed by a totalitarian
authority that aims to create complete obedience to the
state. To accomplish this objective, it is necessary to destroy
historical consciousness and old ways of life. Most everyone in
Oceania has lost memory of historical life. Big Brother can make
any claim about the past without concern that it will be revealed
as a lie or prevarication. The abstract dogmas of Insoc, the state
ideology, shape the imaginations of party members to ensure that
they see life through the eyes of Big Brother. Language symbols
are constantly being reduced by the Ministry of Truth to limit
human consciousness of reality. Winston Smith maintains a shred
of historical memory and consequently he resists the totalitarian
order. He remembers past experiences that serve as standards
against which he can measure the claims of Big Brother. He
remembers a time when life was different, when social life was not
controlled by the state. He remembers concrete experiences, the
love of his mother and the taste of good food. He has maintained
an imaginative grasp of a higher form of life even though there is
little if anything in his contemporary society that refreshes and
reinforces that experience. The institutions that embody prescriptive
wisdom have been destroyed but they have not been
completely erased from human memory. Winston must fight
against the fear of state terror and social alienation in order to
maintain his precarious grip on historical experience. What he
holds in imaginative memory is enough to inspire his resistance to
a state that is defined by dehumanizing everyday life. His imagination
conceives of a higher quality of life that is historically
grounded. Without historical consciousness, it is impossible to
sort out what is real and what is mere delusion. Winston Smith’s
experience in Oceania recalls David Hume’s comment about
custom. In Enquiries Concerning Human Understanding and
Concerning the Principles of Morals, Hume wrote that custom,

is the great guide of human life. It is that principle alone which
renders our experience useful to us, and makes us expect, for the
future, a similar train of events with those which have appeared
in the past. Without the influence of custom, we should be
entirely ignorant of every matter of fact beyond what is immediately
present to the memory and senses.¹⁰

Without the aid of historical experience—the prescriptive
wisdom embodied in traditions and customs—reason becomes
the plaything of momentary passion and ideology; it loses contact
with the ground of human experience and sends reason wandering
into the world of metaphysical abstraction divorced from the
concreteness of past experiences of order.

Kirk suggests that human beings are capable of a range of
experiences. Some contribute to happiness (eudamonia), some
are trivial, and some are destructive to human happiness and the
good life. Human beings experience, as part of their nature,
contrary inclinations. They are often inclined to act in a way that
destroys happiness, social harmony, and civilization. Civilization,
itself, is an act of will that is dependent on an imaginative vision
of what is real and possible; it requires the rejection of inclinations
that destroy social harmony, beauty, and truth. Civilizations have
ways of preserving their experiences with this eternal quest for
order. Traditions, customs, and prejudice properly understood
provide a rich body of experience that Kirk calls “prescriptive
wisdom.” It is hubristic to assume that human beings can build
and preserve civilization without the benefit of prescriptive
wisdom. The forces of momentary passion and the limits of one
generation’s wisdom and experience confine the horizon of the
imagination to the limits of contemporary life. Without the
benefit of historical experience, individuals do not stand on the
shoulders of giants; like the Jacobins, they move about blinded by
their passions and oblivious to the effects of their reckless
uprooting of prescriptive institutions.

There is resistance to the appeal to tradition and past experience.
In the spirit of modernity, claims are commonly made that
the past embodies ways of life that the living generation rejects.
History progresses. It moves toward a superior understanding of
truth and beauty. Some, like Francis Fukuyama, claim that
history has led to the final evolution of political forms; it is, in his
view, inconceivable that a form of government could be more
prudent and just than democracy. Others, like Herbert Croly,
believe that democracy would perfect human nature and give
birth to a new age of freedom, peace, and prosperity. He concludes
The Promise of American Life by stating that

Democracy must stand or fall on a platform of possible human
perfectibility. If human nature cannot be improved by institutions,
democracy is at best a more than usually safe form of political
organization…. But if it is to work better as well as longer, it must
have some leavening effect on human nature; and the sincere
democrat is obliged to assume the power of the leaven.¹¹

Those, like Croly, who refuse to learn from the past are forced
to witness the folly of their idyllic imaginations. In the frenzied
embrace of progress, little attention is paid to preserving the
genuine progress of civilization. Consequently, the wisdom of the
past slips from human consciousness.

Prescriptive wisdom is important because it provides contact
with concrete human experiences rather than abstract principles.
The range and depth of historical experience is far greater than the
experience of one man or one generation. Universality for Kirk
and Burke was known in the particular experiences of history.
Tradition and custom embody particular experiences with universality
but they do not exhaust it. The true, the good, and the
beautiful must be rediscovered in every generation. The past must
become a living past. For this to happen, tradition must be
examined and reconstituted; the experiences of the past that
contributed to civilization must be imaginatively relived and
prudently applied.

Kirk also believed that no one tradition could provide a
universal understanding of the good. The American tradition, for
example, had limited application outside Western Civilization.
Building and maintaining a civilization is not a matter of creating
dogmatic principles but a living tradition requires reform,
rearticulation, and creative regeneration. Traditions must fit the
circumstances and exigencies of a particular civilization. A living
tradition is not didactic. Tradition can be sharpened as new
experiences and circumstances enrich the imagination with new
possibilities.

A worthy tradition, then, requires a certain disposition of
character that can reconcile preservation and change. Men of
letters and natural aristocrats are obligated to preserve and
reconstitute tradition. Social and political leaders are obligated to
exercise prudence in the affairs of state and community. For
prudence joins prescription and expedience; it is the primary
virtue that guides individuals in the quest for moderation. Change
must avoid radical separation from long established practices.

Tradition shapes imagination and creates a prejudice that
prepares individuals for action. Burke explains the point in
Reflections:

prejudice is of ready application in the emergency; it previously
engages the mind in a steady course of wisdom and virtue, and
does not leave the man hesitating in the moment of decision,
sceptical, puzzled, and unresolved. Prejudice renders a man’s
virtue his habit; and not a series of unconnected acts. Through
just prejudice, his duty becomes a part of his nature.¹²

A contrast can be made between adherence to prescriptive
wisdom and adherence to ideology. An ideologue is not left
hesitating in the moment either because he stands firm on
ideological principle. The difference between Burke’s prejudice
and ideology is that the former is part of a never-ending search for
truth and the latter claims to have discovered the truth for all
time. They differ, as well, in philosophical substance. Burkean
prejudice is grounded in historical experience; ideology is grounded
in abstract metaphysical reason, half-truths, or what Plato called
doxa. Burke also understood that prejudice was not itself the end
of the quest for the true, the good, and the beautiful. It rather
inclined individuals to favor certain ways of life and to help them
resist radical change; it was part of the maintenance of civilization
not the final sum of what it could produce. There is no escaping
expedience and moral judgment.

Tradition provides the substance that maintains a civilization.
Societies must have common beliefs in order to exist as political
communities. The self-understanding of a society depends on its
formative experiences of order. Walter Lippmann referred to
these common beliefs as the public philosophy.¹³ Tradition provides
the constitution of a society. It creates limits and boundaries
for human action and even thought. It provides a check against
anarchy and tyranny and it makes individuals suspicious of radical
reformers and ideologies. It implants in men a humility captured
in Burke’s dictum that the individual is foolish but the species is
wise. The collective wisdom of generations is a substantial brake
on the inclination to remake society by tearing up its long
established roots. Yet, tradition also provides examples of the
spirit that animates prudent reform. Burke, for example, was no
ideologue. In India and America he opposed British expansion,
but when necessary he favored using the full might of the empire
to destroy Jacobin influence. His reaction to the specific challenges
of his day was not to apply some ridged ideological
principle but to exercise prudent judgment that was inspired by
prescriptive wisdom.

There is an important philosophical insight embodied in
Kirk’s faith in tradition. Reason is flawed; as Hume stated, it is a
slave to passion. But an appeal to tradition is coupled with an
abhorrence of metaphysical abstraction. Tradition anchors one in
the concrete experience of history. Abstraction, by contrast,
sends men’s imaginations into fits of idyllic fancy, unable to
distinguish reality from utopian dreaming. Set on a course of
abstraction, anything is possible. The established customs and
institutions that provide checks on human will and appetite are
seen as obstacles to progress. The imperfection in tradition and
the institutions that embody it are exaggerated. The imperfection
in reason and human nature itself are either ignored or rationalized.
Kirk’s defense of prescriptive wisdom is an alternative to
modern ideology. It is a sober account of the human condition
that appreciates the great achievements of history.

The Human Condition and the Need for Prescription

To discuss the need for prescription outside the context of the
human condition is to base one’s understanding on ahistorical
abstraction and not human experience. Kirk insisted that important
insights into human nature were embodied in the Western
heritage. Aristotle, Cicero, Augustine, and Burke, to name a few,
agreed that human nature is divided by good and evil inclinations.
Evil is a permanent part of life on earth and consequently political
and social life must contend with the lower passions of men and
women who, intentionally or not, do harm to others and themselves.
This basic insight into human nature provides a check
against radical change. It cautions one to reject utopian schemes
that begin by claiming the power to perfect man and society. The
gnostic impulse to remake the world depends on a rejection of the
older sober view of man. A certain tolerance for evil must be
cultivated because the devil we know is apt to be better than the
devil that radical change engenders. The hubris of the modern
mind is to assume that the existing generation knows better than
previous generations and that reason and science can create a new
world. Gone from this way of thinking is the notion that mystery
is part of life. Even Machiavelli understood that roughly half of
life is out of our control. The modern error, however, is to attempt
to control too much of life in the belief that the more we try to
control and change the better off we will be. How can one not try
to fix evils wherever they exist? The evils of the world can be a
great diversion from the evils of one’s soul. Civilization depends
on individual men and women ordering their own life before they
venture into the world to save mankind.

Kirk and the Constitution

Just as Burke opposed radical ideology by defending the British
constitutional order, Kirk opposed the radical ideologies of his
day by defending the American constitutional order. Both fought
for the preservation of the constitution of civilization. As Burke
explained, “each contract of each particular state is but a clause
in the great primaeval contract of eternal society.”¹⁴ The content
of the constitution of civilization includes “reverence for the
divine origin of social disposition; reliance upon tradition and
prejudice for public and private guidance; conviction that men are
equal in the sight of God, but equal only so; devotion to personal
freedom and private property; opposition to doctrinaire alteration.”
¹⁵ Their respective defense of the British and American
constitutions is not surprising given that both constitutions
embody the prescriptive wisdom and experience that Burke and
Kirk defended. But it is important to understand that their
defense of constitutionalism was not a romantic yearning for a
past that could be frozen in time. Burke and Kirk saw the necessity
of change and reform. The quality of conservative reform, however,
differs greatly from radical reform. This is evident from Kirk’s
constitutional theory. An examination of Kirk’s constitutionalism
will illuminate the meaning of the politics of prescription.

In Kirk’s Rights and Duties: Reflections on Our Conservative
Constitution, he indicates that the purpose of the American
Constitution was to create and maintain “a conservative political
order.”¹⁶ The conservative nature of the American constitutional
order is illustrated by Edmund Burke’s influence on the American
mind and imagination and the consistency between Burke’s
political theory and the constitutional theory of the American
Framers. Kirk’s emphasis on Burke separates him from those who
identify Locke as the greatest influence on the Framers.¹⁷ Locke
separates rights and duties. Kirk and Burke saw them as inseparable
parts of the quest for ordered liberty.

What is it that gives the American Constitution its conservative
characteristics? At the core of both the American Framers’
and Burke’s constitutional theory is a view of human nature that
is shaped by the ethical dualism of the ancients and Christians.
The constitution of being provides the ontological context for
political constitutions. Written constitutions cannot change the
human condition but the human condition provides limits to what
constitutions can accomplish. As both St. Augustine and James
Madison understood, the human condition makes political institutions
necessary. This conservative way of thinking confines
government and political life to objectives far more sober and
realistic than those of modern political ideologies represented by
Marxism, Croly’s progressivism, or the welfare state.

The nexus between human nature and government was well
known to the American Framers. Men are divided in their souls
by opposing inclinations. The will to do good and the will to do
evil. The Framers recognized that evil was a permanent part of
political life. They were not utopians or idealists. The evil tendencies
of man made government necessary. This idea is captured by
James Madison’s Federalist 51: “if men were angels, no government
would be necessary. If angels were to govern men, neither
external nor internal controls on government would be necessary.”
The context for this famous quotation has to do with
Madison’s defense of checks and balances and the separation of
powers. These particular institutional mechanisms are derived
from the Framers’ moral realism.

Burke’s influence is also found in the Framers’ insistence on
continuity. Jefferson, by contrast, was no Burkean. This is evident
in his desire for a constitution that lasts for only one generation.
In a letter to Madison dated September 6, 1789, Jefferson
questioned “whether one generation of men has a right to bind
another.” He claimed it as a “self-evident” truth “‘that the earth
belongs in usufruct to the living;’ that the dead have neither
powers nor rights over it.”¹⁸ To conceive of a constitution that
lasts for only one generation, Jefferson must engage in the
imaginative destruction of the social fabric. He must, like other
modern idealists, ignore the reality of the human condition and
the particular historical circumstances of his time, in order to
abstractly construct in his imagination a world that provides an
escape from the harshness of life. He supposes that each generation
is born, matures, and dies on the same days. Jefferson
conceives of men not as Burke did as part of the eternal social
contract but as flies of summer. Like social contract theorists,
Jefferson searches for a theoretical construct with which he can
remake the constitution of being. Madison’s reaction to Jefferson’s
letter is Burkean (see Madison’s letter to Jefferson February 4,
1790). Madison admits his “skepticism” regarding Jefferson’s
doctrine and suggests that it is not “in all respects compatible with
the course of human affairs.” Besides being impractical Madison
finds Jefferson’s principle unwise. He asks, “Would not a Government
so often revised become too mutable and novel to retain that
share of prejudice in its favor which is salutary aid to the most
rational Government?” He adds that the living are indebted to the
dead for their improvements. Financial debts, for example,
incurred by the living generation provide benefits to future
generations.¹⁹

Kirk’s constitutionalism is consistent with his understanding
of order found in The Conservative Mind and The Roots of
American Order. Political and social order cannot be reduced to
positive law. A written constitution reflects the unwritten constitution
but it cannot possibly capture or encompass all of the
unwritten constitution. The traditions, customs, mores of a
nation are not embedded in one place, e.g., the four corners of a
written document. They live as part of an organic whole that
changes and remains the same through time. The unwritten
constitution provides the substance of law and political power;
the written constitution defines the parameters and limits of the
powers that are used to create law and public policy. The
outcomes of law depend on the temperament, character, and
imagination of political leaders, scholars, parents, and clergy who
mold the substance of the law according to the quality of their
minds and imaginations. In this sense, then, the American Constitution
is indeed a living document. It is given life by the
unwritten constitution and by judges who exercise discretion in a
way that maintains continuity between the spirit of the constitution
and its letter. Kirk is not an advocate of strict constructionism
nor does he believe that the constitutional order is determined
primarily by judicial conduct and theories of judicial
interpretation. The substance of law is shaped by conscience and
the many influences on conscience including natural law. In short,
natural law is, in part, what gives life to a written constitution.

In Kirk’s understanding of the American order, the Constitution
does not give birth to a new order but the Constitution was
created “to conserve the order and the justice and the freedom to
which Americans had grown accustomed.”²⁰ The American order is
not a break from the past, as was the French Revolution, but an
effort to preserve the experiences and wisdom that were part of the
British political tradition. Constitutions exist before they are put
into writing. Their particular characteristics take shape in the
customs and traditions that evolve over time. This is why a written
constitution can never completely capture the constitutional order.
This is also why a written constitution is not an assurance that
certain political practices and demarcations of power will remain
the same over time. Yet a constitution does intend to preserve.

Kirk quotes James Bryce’s The American Commonwealth to
explain why constitutions do not guarantee ordered liberty.

To expect any form of words, however weightily conceived, with
whatever sanctions enacted, permanently to restrain the passions
and interests of men is to expect the impossible. Beyond a certain
point, you cannot protect the people against themselves any more
than you can, to use a familiar American expression, lift yourself
from the ground by your own bootstraps.²¹

The quotation is reminiscent of comments in the Federalist
papers that speak to the dangers of democracy and the threat of
government tyranny. Human nature guarantees that whatever
specific institutional limits will be formed in the written constitution,
the usurpation of powers will occur. Minimizing and checking
these usurpations makes for a tolerable political order but it
does not promise the transforming ends that radical ideologies
claim are possible. Custom and tradition are important to the
underlying civility that makes constitutional government possible.
They provide a cultural ethos that inculcates the disposition
of civility that is necessary for ordered life. Custom and tradition
also provide the cultural context for law and government. While
setting boundaries and parameters to government power, they
provide a cultural check against tyranny. Lawmaking, for example,
occurs in a context with preexisting customs and traditions.
Legislators must gauge the force of custom before they
craft laws and public policies. The efficacy of law depends, in part,
on its compatibility with custom and tradition.

The connection between the written and unwritten constitutions
explains why Kirk was skeptical about the exportation of the
American Constitution. While other nations may benefit from
emulating the spirit of the American Constitution, Kirk warned
that “it is not possible for the politicians of very different cultures
to emulate thoroughly the American framework of institutions,
for their circumstances and necessities are very different from
ours. Even if they were so to copy the details of the American
Constitution, that house of cards would fall to its ruin within a few
years, at most.”²² To preserve the American constitutional order,
the written constitution must be followed and the unwritten
constitution must maintain a spirit within the leadership class,
especially, that fosters constitutional character. Kirk is no legal
fundamentalist. He understands that universality, the permanent
things, require flexibility and change. But change must be gradual
and most importantly change must maintain continuity with the
past as it is embodied in American traditions and customs.
Continuity also means that the spirit of constitutionalism is what
guides change and reform. Kirk is willing to concede to judges a
certain degree of discretion in interpreting the law and meaning
of the Constitution but legitimate discretion is not the same as
ideologically driven law making by judges. The living constitution
of the New Deal and Warren Courts was not consistent with the
spirit of authentic American constitutionalism for it destroyed in
significant ways the very fabric of the American political and
social order. The welfare state that those courts helped to
engender and constitutionally legitimate is incompatible with
authentic American constitutionalism. An example will suffice to
illustrate the constitutional revolution of the twentieth century.
The Commerce Clause in Article I, section 8 of the Constitution
gives the Congress the power to regulate commerce between the
states but it reserves the power to regulate commerce within
states to the states. The 10th Amendment, added in 1791, merely
makes explicit what was evident from the original Constitution.

In a short period of time, the Supreme Court’s interpretation
of the Commerce Clause radically changed. The dramatic change
only makes sense if understood as part of a larger ideological shift
away from the Framers’ constitutional ethos and toward a progressive
liberal world view. This evolution can be marked by the
Court’s decisions in Schechter Poultry Co. v. United States (1935),
NLRB v. Jones and Laughlin Steel (1937), and Wickard v. Filburn
(1942). The last case illustrates the erosion of constitutional
standards.

In Wickard v. Filburn²³ the Court ruled 9–0 that a farmer
who grew wheat for his own consumption—wheat that never left
his farm—was subject to federal quotas created under the Second
Agricultural Adjustment Act (1938). Roscoe C. Filburn was a
small farmer in Ohio. In addition to raising livestock, he grew
wheat to feed his chickens and cattle, to feed his family, and to
provide seeds for the next year’s crop. Filburn did not sell any
wheat; it all remained on his farm. But in 1941 he was cited for
exceeding his federally-established wheat quota by 12 acres. The
12 acres yielded 239 bushels of wheat for which Filburn was fined
49 cents per bushel. Filburn challenged the fine, arguing that the
federal government had no constitutional authority to regulate
wheat that was neither marketed nor part of interstate commerce.
Justice Jackson justified Congress’s power by citing the commerce
clause that stated Congress’s power to “regulate
Commerce…among the several states.” Jackson argued that wheat
that was consumed but not marketed had an effect on the wheat
market. Presumably Filburn’s wheat reduced the demand for
wheat and thus reduced the price of wheat. Farmers like Filburn
produced an estimated 20% of the wheat produced in the U.S.
Their wheat, although grown and consumed on private land and
never sent to market, had an effect on the price of wheat.
Consequently, Jackson argued, the wheat was part of interstate
commerce and fell under Congress’s power. Under this reading of
the commerce clause it is difficult to fathom what does not come
under Congress’s commerce powers. Backyard gardens, it could
be argued, have a similar effect on the national tomato market and
thus Congress is empowered to regulate them.

Conclusion

The conservative mind must provide alternatives to such ideological
forces as those that animated the New Deal and Warren
courts. To carry out this task, the conservative mind must be
molded by the scholarship of men like Russell Kirk whose
constitutional theory provides the foundation for a reconstituted
American order that preserves the wisdom of the ages in the flux
of changing historical circumstances. We are not in search of
specific forms of political ideas but the spirit that engenders them.
Only then with the union of spirit and mind will we be prepared
to meet the challenge of preservation and change. In this lifelong
endeavor, we do well to follow the example of Russell Kirk.

Kirk’s defense of prescription provides a foundation for the
restoration of American and Western traditions that have been
slipping from historical consciousness. The project of restoration
includes rejection of ideology and its closure to the search for
more differentiated understandings of reality. Prescriptive conservatism
must also address the criticism that reason, not historical
experience, is the foundation for truth. Providing scholarly
arguments and insights that explain the limits of unaided reason
and the virtues of prescription will bolster the case for traditional
conservatism. In the end, Russell Kirk has done a great deal to
bring the importance of this project to the attention of his many
readers and students. A fitting tribute to the Sage of Mecosta is
the continuation of the search for prescriptive wisdom.

Michael P. Federici
Mercyhurst College

NOTES

1. Irving Babbitt, Democracy and Leadership (Indianapolis:
   Liberty Fund, 1979) 136.
2. Russell Kirk, Enemies of the Permanent Things: Observations
   of Abnormality in Literature and Politics (La Salle: Sherwood
   Sugden & Company) 16.
3. Edmund Burke, “Speech on the Representation of the
   Commons in Parliament” in Edmund Burke: Selected Writings
   and Speeches edited by Peter J. Stanlis (Chicago: Regnery Gateway,
   1963) 331.
4. Russell Kirk, The Conservative Mind from Burke to Eliot
   (South Bend: Gateway Editions, 1978) 31.
5. Ibid., 32.
6. Ibid., 33.
7. Edmund Burke, Reflections on the Revolution in France
   (New York: Penguin Books, 1979) 173.
8. Russell Kirk, Prospects for Conservatives (Washington,
   D.C.: Regnery Gateway, 1989) 229.
9. Russell Kirk, Edmund Burke: A Genius Reconsidered
   (Wilmington: Intercollegiate Studies Institute, 1997) 178.
10. David Hume, Enquiries Concerning Human Understanding
    and Concerning the Principles of Morals (Oxford: Clarendon
    Press, 1985) 44–45.
11. Herbert Croly, The Promise of American Life (Boston:
    Northeastern University Press, 1989) 400.
12. Burke, Reflections, 183.
13. See Walter Lippmann, The Public Philosophy (New York:
    The New American Library of World Literature, 1955).
14. Burke, Reflections, 195.
15. Kirk, Conservative Mind, 15.
16. Russell Kirk, Rights and Duties: Reflections on Our Conservative
    Constitution (Dallas: Spence Publishing, 1997) viii.
17. The original title Kirk considered for the book was
    Edmund Burke and the Constitution of the United States.
18. Thomas Jefferson, Writings (New York: Library of America,
    1984) 959.
19. Letters and Other Writings of James Madison, vol. I (1769–
    1793) (New York: R. Worthington, 1884) 503–504.
20. Kirk, Rights and Duties, 3.
21. Ibid., 12.
22. Ibid., 14.
23. 317 U.S. 111 (1942).