I was told last Friday by this site’s SBE (“senior blog editor”), Ivan Kenneally, that an encounter between any two members of the postmodern conservative masthead, for whatever licit reason, is sufficient to warrant a posting. So here I am. I had occasion on Thursday to visit Kenneally’s home turf, Rochester Institute of Technology, to deliver the annual Constitution Day Lecture. This same lecture was given in the past by another pomocon writer, Peter Lawler, whose reputation in the community is so high that there is talk of naming a segment of the Erie Canal after him. It was also an opportunity to meet with many of the members of the fine political science department at RIT and to be treated to one of the better examples of Italian cuisine to be found east of Genova.
The topic I chose was the idea of a written constitution, which was one of the founders’ most important innovations. According to Thomas Jefferson, and what higher human source is there?, the state of Virginia in 1776 was the first government ever—ever meaning as in all of time—to produce a written constitution, i.e., a document that sketches the whole frame of government. By the time of the constitutional convention in 1787, after other states had adopted and modified this technique, there was already something of a theory of the status of a written constitution, of what it should include, and of how it should be drafted and how approved. The innovation of a written constitution made possible the elevation of law above government (see Federalists 53 and 78) and the consent of the governed (for how can people officially consent to something unless they can see what is in it and approve of it?). In addition, at least in the founders’ version of the theory of a written constitution (as distinct from Jefferson’s) a direct connection is established between the founders’ thought and the political thought of all subsequent generations. (This idea is explicated in Federalist 49, which I have tried to honor by adopting it as my license plate, “Fed 49,” leaving eighty-four other papers to be selected by conscientious Virginians.)
But was a written constitution a good idea? Perhaps it was not really so much a new theory as one that had been considered before and rejected by wiser heads. This was the suggestion of that iconoclastic conservative writer Joseph de Maistre of that age, a man obsessed with discounting anything that might smack as an innovation, above all something that came from America. (De Maistre went off, for example, on the effort to form a new city—Washington, D.C.—a position that some in the recent tea parties have all but seemed to endorse.) De Maistre could have made some very telling arguments, which were suggested a long time ago by the classics. If there are always exceptions to a rule—even a good rule—then it could be unwise to enshrine it into a rule that is deemed “higher” and unchangeable under the circumstances. Either you follow the rule and perish, or you break the rule and forever undermine credibility and respect for the rule of law as such. No human institution should ever be constructed that does not leave room for discretion, the kind of discretion that allows someone, for the public good, to set aside any rule. So from this point of view, there could be wisdom in the “theory” that underlies the unwritten constitution of Britain (or that used to underlie it before it joined the EU). It is implicit in Blackstone’s wonderful passage referring to the powers of parliament: “It hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.”
All written constitutions face this kind of dilemma. Some handle it by the expedient of having an opt-out procedure within the constitution, allowing for the constitution to be suspended during certain periods and for the executive to exercise emergency powers. Another view—which many believe is inside the American constitution—contends that the written constitution already allows, under the constitution, for the exercise of necessary emergency-like powers when the situation warrants.
Well, Joseph de Maistre did not dwell on these points. He instead referred us back to a broader question, which of course I did not have either the time or inclination to present to the predominantly undergraduate audience at RIT, but which I raise for the more speculative-minded Pomocon readers: is it wise to put anything of importance in writing? This question is one Socrates addresses, on doubt with a touch of irony, in the Phaedrus, 275-d and e: “And when they have been once written down they are tumbled about anywhere among those who may or may not understand them, and know not to whom they should reply, to whom not: and, if they are maltreated or abused, they have no parent to protect them; and they cannot protect or defend themselves.” No one with any sense would write down anything, at least not anything serious. If you read some so-called interpreters of our Constitution today, those who prattle on about its invisible interstices, you will have some sympathy with Socrates’s comment; these are interpreters who really could use some “parental” supervision.
And yet, all things considered, I am happy that Plato and Xenephon chose to write down “Socrates’” words, even if they never perhaps committed the most serious part to the written page. What they left us is still more than enough for us to chew on. Speaking of which, consider a thought from a higher source on how to digest some of your favorite works: “And he said to me, ‘Son of man, eat whatever you find here. Eat this scroll, and go, speak to the house of Israel.’ 2So I opened my mouth, and he gave me this scroll to eat. 3And he said to me, ‘Son of man, feed your belly with this scroll that I give you and fill your stomach with it.’ Then I ate it, and it was in my mouth as sweet as honey.” (Ezekiel 3:1-3)
There is still wisdom and majesty in that document that begins “We the People of the United States . . . ” if only we would read it with care.
