Can We Recover the Constitution’s Constitution?

A Constitution in Full:
Recovering the Unwritten Foundation of American Liberty
By Peter Augustine Lawler and Richard M. Reinsch II
(University Press of Kansas, 2019)

This review provides a bittersweet moment to reflect upon the basis of constitutional order in these strange days of virus, protest, and economic upheaval. Neither state nor market alone can cure what ails us or provide meaning to troubled lives. Hope comes from ourselves, our family and friends, and all the small things that connect us to others and to our pasts and futures. Writ large, this challenge is the trial of our republic, seeking meaning and stability in tumultuous times. Writing before pandemic and icon-toppling protests, Peter Lawler and Richard Reinsch diagnosed the ills besetting our republic and pointed toward the treatment, which makes A Constitution in Full a book for our times.

Peter Lawler’s untimely passing in 2017 left it to Richard Reinsch to finish the book, which originated in articles written by the authors individually and together. Given the circumstances under which it was finished, it’s not surprising that their theme is not always developed sequentially and seamlessly through the chapters. But it is nonetheless compelling. The book brings to mind the noncoincidental institutional and personal meanings of constitution, which can refer both to a set of governing rules and to personal qualities that make for health and strength. The American Constitution works because of its grounding in Lawler and Reinsch’s “constitution in full”: the attributes that sustain the character of citizens and hence the republic. The political is personal. The constitution as a document is just the tip of this iceberg. The “actual constitution” is a country’s “way of life . . . found in a people’s political culture, mores, customs, disposition, and peculiar talents.”

This insight is not always welcome. I was once asked to give my university’s presentation for Constitution Day, that federally mandated homage to free expression. I used the occasion to point out that the Constitution did not constitute America. I was not asked to speak again. Perhaps renewal of the deeper constitution grounded in tradition and practice is a hopeless cause.

Then again, these “times that try men’s souls” may be just the moment to recover this forgotten tradition. While the neoliberal promised land of material self-realization was already being undermined by populist revolt, COVID-19 discredited any claim that the globalized thrill ride of technological innovation and economic growth is a panacea for person or polity. That epiphany may brighten the allure of capitalism’s great modern rival in America: the progressive attempt to tame the chaos and creativity of markets under the yoke of reason and planning. But it is painfully evident that no form of government can ensure safety and abundance, let alone soulful satisfaction. Lawler and Reinsch show how a simplistic understanding of human nature and a millennialist fervor for perfection plague both progressive government and free-market neoliberalism. They turn to an older, less ideological tradition of the relational republic.

In addition to Alexis de Tocqueville, who infuses the authors’ argument throughout, they rely on Willmoore Kendall and especially Orestes Brownson as wellsprings of insight. Prominent in the nineteenth century but forgotten today, Brownson was a writer who began with Presbyterianism and then embraced the Unitarian/Transcendentalist culture of New England before converting to Catholicism. Brownson’s writings bolster the authors’ argument that respect for embedded relationships can temper individualism and shallow materialism. Following his lead, they contrast the nineteenth-century cultures of Southern aristocracy and Northern industry, finding stability in a balance of the two.

This is a fruitful though perilous journey. Given the authors’ style, it’s not always clear when they are channeling Brownson or other thinkers and when they are expressing their own views. They appear to embrace Brownson’s praise of Southern leaders as “intrinsically superior to the mass.” Those not privileged by birth or circumstance might beg to differ.

Lawler and Reinsch acknowledge that secessionism and racism are barriers to appreciating the South, yet they sharply criticize the aggressive use of the Fourteenth Amendment by federal courts as “a fundamental reworking of Madisonian constitutionalism” that “transformed the Bill of Rights into an instrument of judicial power against state governments.” The criticism is merited, but how can a relational republic be sustained when full personhood is denied to so many by law and practice? How could those conditions have been changed if not through judicial intervention, however blunt and controversial?

Unless these tough questions are faced, it remains easy to dismiss the value to be gained from the Southern legacy, that of hierarchy. Compared with liberty and equality, hierarchy less easily fits American myth. Yet it is in no small part hierarchy—in family, in faith, in education, and in work—that turns grasping, impetuous individuals into self-reliant, responsible citizens. Because this notion runs so much against the modern grain, the argument requires nuanced development if it is to satisfy anyone but tweedy intellectuals. If appreciating the relational republic requires celebrating Southern aristocracy, too many potential allies will reject both.

Lawler and Reinsch join Brownson in seeing religious faith as key to the historical reconciliation of Lockean liberalism with the relational foundations of human character. This accommodation between what are essentially different cultures kept liberalism from going off the libertarian deep end and created an effective bulwark against encroaching progressivism. As the authors put it, “Christians and Lockeans readily allied against the Marxists. . . . In that sense the Lockeans and the Christians are united against the progressive privileging of History (with a capital H) over the unique and irreplaceable person.” The American bourgeoisie was both Lockean and Christian long before William F. Buckley’s theoretical “fusionism.”

But this tradition faced two challenges: an existentialist left-libertarianism that sought to remove the individual from religious, natural, or social restraint (and that would later find success in Supreme Court cases discussed below) and an older rationalist faith in central planning and direction. The authors primarily attack the latter, portraying progressivism as a profound break with the Founding culture and the genesis of much of what ails us today. Although told before, the unromanticized story of progressivism merits repeating, as it still challenges the dominant narrative in education, entertainment, and administration. The authors make this argument well, even without Tocque­ville and Brownson, who did not live to see these developments.

From Goldwater to Reagan, a resurgent Lockean opposition to the modern administrative state repudiated the 1950s stereotype of conservatives as slower, crankier statists. By the 1990s, even the Democratic establishment supported free trade and deregulation. But from the perspective of the “constitution in full,” that was only half the battle. For Lawler and Reinsch, the erosion of organic society and particularized relationships is more worrisome than limits on economic activity. The victory of Lockeanism did not bring a return to traditional sources of order. Instead, it set up “a contest between progressivism and a simpleminded individualism.” In their critique of the two sides of this modernist coin, Lawler and Reinsch present a nuanced version of the familiar conservative criticism of the noxious contemporary brew of social permissiveness, mindless materialism, and governmental intrusiveness.

The Supremes’ War on Morality

The culture of restrained freedom has clearly come under attack in law. Here the threat is not rational planning but nihilistic individualism. Lawler and Reinsch lay much of the blame for the decline of the relational republic on the Supreme Court’s expunging of traditional moral judgment from law in cases such as Casey v. Planned Parenthood and Obergefell v. Hodges. Most startling were Justice Anthony Kennedy’s gushy opinions, which would have been parodied by the intelligentsia had he not promoted their favored causes.

Kennedy was breathtaking in his reimagination or outright denial of human nature and society. “At the heart of liberty,” he infamously declared in Casey, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This is existentialism with a vengeance. In Obergefell, Kennedy stripped away centuries of practice, theology, philosophy, and social debate to reveal the true meaning of marriage: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” That’s it. Bag all that relational stuff, commitment and sharing, the little detail about procreation, and a stable environment for children. All that, according to the Kennedy Court, is not merely insufficient to defend traditional marriage but even irrational.

This assertion of irrationality is especially disturbing. For decades, the Court granted that governments might well have good reasons for what it deemed infringements on fundamental rights, but asserted that these reasons had to meet the highest standard. In contrast, rights deemed inferior (such as property or contract) could be compromised simply by showing that the government had a rational basis, which the Court was happy to imagine even in the absence of facts. Kennedy declined in these Fourteenth Amendment cases to impose anything more than this minimal standard. Surprise! Laws restricting newly discovered rights fail even the lowest standard of review. To Kennedy, traditional morality is irrational and provides no justification for infringing any rights. It is not simply insufficient, anachronistic, or wrong—it is crazy.

Beyond taking deserved shots at recent doctrine, the authors could have used the chapter on law to emphasize that the unwritten constitution (in which rights were embedded) must be the basis for understanding the written document. What we need may not be disparagement of constitutional rights so much as better understanding of their sources and scope.

Rights derived from English constitutionalism, the common law, and political theory were an essential part of political culture preceding the national constitution. State constitutions put declarations of rights first and foremost. Madison was pained in The Federalist to justify the lack of a national Bill of Rights, and soon after the Constitution’s ratification one was added. Although republican, the Founding culture respected formal limits on government and the people. Liberalism is not a dirty word if it is rightly understood through this contextual development. Rights and relations are not antithetical.

The unwritten constitution, then, does not fit easily with majoritarian populism. Yet the authors’ dual rejection of progressivism and atomized liberalism does fit our populist moment. With the stunning victory of Donald Trump in 2016 (and strong performance in 2020), the success of Brexit and Boris Johnson in Britain, the rise of nationalist governments in eastern Europe, and protests by les gilets jaunes in French cities, people throughout the West have sought to stand athwart history and yell, “Stop!” Lawler and Reinsch do this more subtly and point us back to our foundations as a people and as persons.

Although I share their concerns, I am less sanguine about populism, which does not always lead to greater appreciation of tradition, unwritten mores, the dignity of persons, the particularity of cultures, or the sanctity of relationships. Heads tend to roll when populists take up pitchforks. Lawler and Reinsch may be reading the populist protest vote too generously when they laud 2016 as “the year of the populist rebellion against liberalism understood as liberated—or displaced, and so unencumbered—individualism.” Such abstract intentions might leave puzzled Trump voters scratching their heads.

With their Kirkian reverence for the rural, it is perhaps too easy for the authors to condemn the “emptiness of humanitarian cosmopolitanism.” Having grown up on the almost mythical small farm outside a very small and fervently republican (small “r”) town in circumstances far from privileged, I know the stability and harmony that can flourish in such circumstances. Those roots still “live loudly” within me.

Yet I also know the xenophobia, obsessive conformity, and unspoken class inequalities found in such places. For many refugees from Arcadia, suburbia, and the rusting centers of industrial bitterness (another part of my familial psyche), higher education, travel, arts, and worldly culture provide cherished escapes from the suffocation of the self and the harshness of cruel or indifferent relationships. Who in the scribbling class has not experienced the joy of encountering a soulmate in vigorous classroom debate or in the most improbable of foreign circumstances? This—and not simply alienation and shallowness—is also cosmopolitanism.

Along with its excesses and disruptions, our not-so-brave new world creates new opportunities for the meaningful relationships that remain dear to every human heart. A reactionary populism carries risks as well as promise for the values and habits the authors preach. Returning to a more gentlemanly and gentlewomanly way of life grounded in restraint, responsibility, and courtesy may be a dream dear to professors and intellectuals. But “how ya gonna keep [the less privileged] down on the farm after they’ve seen Paree?”

Appreciating the creative tension between the universal and the particular may be especially Catholic, as is the authors’ argument about unwritten foundations. Catholic thought rejects the cabbage-patch anthropology of Lockean social contract theory and understands the person as both a distinct individual and essentially social. It regards the meaning of earthly existence as both universal (all are creatures of God and equal in His eyes) and particular (each is also a unique and unrepeatable being, with distinct webs of relations). Not surprisingly, Lawler and Reinsch draw not only on Brownson and Tocqueville but also on current Catholic thinkers, including Pope Emeritus Benedict XVI and Pierre Manent. Following Manent, they see localism as providing “the shared place where people ‘concretize their universal humanity.’ ”

A continuing quest for balance and measure may not provide a satisfying, Disney­esque finale in the utopian theater of political theorizing. It portends an uncertain future in which the satisfaction of the person and the stability of our constitutional republic are perhaps never fully realized and are pursued by paths not yet known. But is that not part of the richness of the human experience? I can’t help but believe that the irrepressible God-given instincts of joy, wonder, love, and even ambition will lead persons to discover and nourish relationships, despite the selfishness and alienation endemic to imperfect beings and intensified by the temptations of market and state.

Sustaining the person and the republic under these circumstances is a daunting task—perhaps a quixotic fantasy—as the institutions that historically have engendered civility and managed conflict have been battered for decades. The road to recovery begins with recognition. A Constitution in Full can help awaken the perplexed and inspire those who see the social ills and wounded persons among us to actions large and small. With the able help of Richard Reinsch, Lawler speaks to our times more than he could have known. Peter may be looking down with his wry smile, dismayed but with a bit of hope that we may yet find our way home.

Dennis Coyle is associate professor in the Department of Politics and a fellow of the Institute for Human Ecology and the Institute for Policy Research at the Catholic University of America.

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