The Moral Fragility of Constitutionalism

America’s Constitutional Soul
by Harvey C. Mansfield, Jr.
Johns Hopkins University Press, 236 pages, $32

In this collection of characteristically brilliant essays, Harvey C. Mansfield Jr., one of our nation’s most eminent conservative political theorists, defends the American Constitution as “the most glorious product of modern political science and still its best justification.” The achievement of our nation’s founders, according to Mansfield, was “to introduce a new era of human liberty” by thinking realistically and well about the problems of politics.

Today, however, the founders’ achievement is threatened “by the galloping informality or increasing democratism of our politics.” “Postmoderns” have become “disillusioned with reason, enlightenment, progress, and liberal democracy.” They have grown contemptuous of constitutional formalities that sometimes, and by design, function as obstacles standing in the way of the popular will. Even the political scientists “have become rampant democratizers because they have lost faith in reason.” Far from being part of the solution, political science has become a major part of the problem.

Mansfield’s criticisms of “increasing democratism” and “rampant democratizers” should not lead anyone to suppose that he is against democracy or in favor of some authoritarian alternative. Far from it. What Mansfield says of the framers of our Constitution can truly be said of Mansfield himself:

They distrusted democracy, but not because they loved aristocracy. They distrusted democracy for the same reason they rejected aristocracy—because they distrusted human nature.… To make popular government work well, they thought it necessary to prevent a representative, constitutional republic from descending to the extremes of democracy, in which people under the influence of demagogues make all decisions actively and immediately.

Nor should anyone imagine that Mansfield’s defense of limited government reflects an ACLU-type (mis) understanding of constitutional rights as protecting individual “lifestyle autonomy” or subjective “moral self-definition.” He is rightly contemptuous of the freewheeling judicial review by which legal elites, in the law schools and on the bench, have prosecuted the liberal social agenda under the pretext of interpreting the Constitution. Mansfield’s ideas of limited government and the rule of law extend also to the judiciary. Here too his thought is in harmony with the political science that produced the Constitution.

Mansfield is the rare political scientist these days who has anything interesting to say about what ordinary people mean and understand by the term “politics.” Part One of his book, comprising four essays, comments on the American elections of 1980, ’82, ’84, and ’88, respectively. He shows how each election had important constitutional implications. He frankly declares himself in favor of the Reagan revolution, yet does not hesitate to criticize the conservative elements—libertarians, fundamentalists, establishment Republicans, neoconservatives—that joined forces to make that revolution.

Mansfield exercises his critical powers more fully and dramatically, however, when he turns to contemporary academic political science. This subject is the focus of his Introduction and a fascinating chapter entitled “Social Science and the Constitution.” Never one to hunt for small game, his principal target is the great “behavioralist” political scientist Robert Dahl, whose A Preface to Democratic Theory (1956) overthrew the reigning “institutionalist” political science that preceded it. Dahl is the most sophisticated of those modern political scientists who fault the Constitution for its formal impediments to democracy, though Dahl’s “dislike does not reach the level of opposition, much less revolution, since he agrees that the formal provisions of the Constitution do not have much effect.”

Dahl and his behavioralist followers find it difficult to believe that political actors can guide their behavior in accord with formal norms such as those provided by the Constitution. On the contrary, they suppose, the activities that constitute political and other social phenomena must be motivated or “caused” by extra-constitutional factors.

Mansfield attacks this behavioralist reductionism at the most fundamental level. He contends that as rational agents, people are free to deliberate and choose among possible actions, and “choice is a certain activity of the soul.” Human beings are not mere selves capable of self-expression; as souls, they are capable of self-control. The political science that produced the Constitution is superior to the modern behavioralism that dismisses the effectiveness of constitutions and other formalities precisely because the older political science understood the significance of formalities, including constitutional formalities, for the governance and, indeed, the self-governance of responsible agents, beings with souls.

Another theme of these essays is the importance of pride to citizenship in a free society and the dangers of liberal paternalism. Mansfield is keenly aware of the ways in which liberal social policy is creating a nation of dependents who can take pride neither in themselves nor in the community that created their dependency in a vain attempt to secure their interests. He singles out for special criticism affirmative action policies that enable certain groups to be “readily identified as privileged dependents.”

Mansfield’s writing is generally admirably clear and without pedantry. One chapter, however—unfortunately, the one likely to be of greatest interest to readers of this journal, “The Religious Issue and the Origin of Modern Constitutionalism”—is somewhat clouded. Mansfield contends that “the religious issue,” namely, “whether men are ruled by God or gods, hence by divine right, or by themselves on principles they discern without necessarily referring to the Word of God in Scripture,” was a central focus of debate at the origin of modern constitutionalism in the seventeenth century and, in important respects, remains relevant today. (In a later essay, speaking of fundamentalists, he remarks that “the demon of divine right still needs to be exorcised.”) Religion’s relevance is obscured somewhat, however, because “in our day the social issue appears to be dominant.” Mansfield describes “the social issue” as “the age-old conflict between the rich and the poor.”

The bulk of the essay on the religious issue is devoted to a consideration of some writings of Hobbes, Locke, and Spinoza. Mansfield concludes that “the measures these philosophers adopted to contain religion by diminishing the soul seem also to endanger freedom.” That is a tantalizing proposition, but Mansfield’s analysis and criticism of these thinkers is so compressed that one is left somewhat unclear both about how he got to it and whether it is correct.

In any event, Mansfield is clearly correct in observing that “constitutionalism demands a people that is independent, but not so much as to think itself capable of governing without a constitution.” Even for such a people, though, constitutionalism “faces a dilemma that helps to explain the condition of democratic souls today.” That dilemma reflects the continuing relevance of “the religious issue.”

When the soul seeks a higher principle than self-preservation, it is sure to find one that justifies rule of others besides yourself.… A higher principle that asks much of oneself may reasonably, must rationally, make demands on others.

Therefore, “to keep one person’s soul from claiming jurisdiction over others … it is necessary to reduce his capacity for ruling himself.”

Locke and his followers, understanding the need “to contain the soul by diminishing it,” began replacing the classical ideas of choice and virtue with the ideas of necessity and interest. These moves, to be sure, “diminish the soul,” but in that very process they jeopardize the independence and sense of responsibility without which meaningful freedom is impossible. Mere “selves,” whose souls have been “flattened” to prevent their ruling others, can neither practice virtue nor rule themselves. The religious paternalism of the past is then easily replaced by the liberal social paternalism that is everywhere in evidence today: “Liberalism, which began with the rejection of paternalism on behalf of religion and virtue, now has returned to paternalism to ensure safety and comfort.”

What was most worthy in the Reagan revolution was its only partially successful effort to restore self-respect. As Mansfield observes (and as Reagan was savvy enough to understand), “morality is necessary to self-respect, which is the same as pride.” In the end, Mansfield points out, Reagan “did little to purge the country of pornography and easy abortion, but perhaps it is enough, and certainly it is more than nothing, to speak of the immorality of these things.”

The truth, however, is that talk is not enough, and it is here, finally, that the Reaganites must be called to account. Twelve years after the election of Ronald Reagan, more than one-and-a-half million unborn human lives are destroyed in America each year. At a time when even some liberal thinkers, most notably William Galston, are beginning to recognize that the moral decline of our culture is exacting a terrible toll in broken relationships and ruined lives, the Supreme Court—a majority of whose members were appointed by Reagan and Bush—continues to uphold unlimited abortion and other key elements of the liberal social agenda.

Morality and responsibility require the restoration of our flattened souls; and, as Mansfield teaches, this task is, in part, a political one. Mansfield is correct, however, to warn us that this restoration is not without risks of its own. Statesmen must be courageous enough to take these risks, yet prudent enough to recognize the need to observe strictly the wise “formalities” of the Constitution, lest courage degenerate into recklessness, and honorable freedoms be lost to the demagogues.

Robert P. George teaches philosophy of law and civil liberties in the Department of Politics at Princeton University, and is editor of Natural Law Theory: Contemporary Essays (Oxford, 1992).

Photo by Harold Mendoza on Unsplash. Image cropped.