Thoughts on the Unwritten Constitution
The last two Heritage essays made brief references to one of America’s most interesting and mercurial thinkers, Orestes Brownson. Most readers have probably never heard of Brownson. His life spanned three-quarters of the 19th century, but in many ways, he represented a broad range of ideas. His early involvement with the transcendentalist movement and its related social experiments yielded to a conversion to Catholicism, the key difference, in his way of thinking, being the latter’s more sober and more truthful accounting of human nature.
My longstanding interest in Brownson was rekindled yet again when I read a recent essay on Unherd that reflected on America’s “unwritten constitution,” a concept most prevalent in Brownson’s later thinking. In Federalist #48 Madison referred to the written Constitution as a mere “parchment barrier” that in itself could do little to resist encroachments of power. Brownson realized that the restraint of power resulted from America’s “unwritten “ — the underlying habits, dispositions, mores, beliefs, judgements, and conduct of a people that constituted the nation’s true political identity.
Should the National Archives in Washington DC ever burn to the ground, America would still possess constitutional government. While our system of government might be codified into paper form, the actual government itself is more flesh and blood than it is paper and mortar.
The reference to an unwritten Constitution reminds us that government in America emerged from the bottom-up, and the actual system of government must reflect America’s unwritten Constitution. N.S. Lyons, the author of the Unherd essay provocatively titled “The Constitution won’t save America: It has lost touch with the nation's twisted soul” draws our attention to the disconnect between our systems of governance, based as they are on skeptical views of human nature but retaining confidence in the ability of non-governmental institutions to cultivate the requisite levels of virtue, and the underlying cultural factors more interested in signaling virtue than demonstrating it and filled with unshakeable confidence in individuals to act on their impulses.
Lyons begins his essay with reference to the recently argued Murthy v. Missouri, which many legal specialists expected to be, but may not be, a ringing defense of speech rights, one of the justices expressing the rather odd concern that the First Amendment might hamper the operations of government. Well, yeah … that’s kind of the point. But that isn’t really the issue for Lyons. For him, confusion about the case indicates a deeper confusion about the Constitution itself, and a misplaced confidence in its ability to ensure good order and to restrain power. He believes we’ve mythologized the Constitution to the point where we’ve confused the myths with the Constitution’s actual operations.
His argument results from a simple observation: the Constitution is not, like a monarch, self-executing. It still needs human beings to enforce its provisions, and if they are unwilling to do so, then the document is hardly worth the parchment it is printed on. He continues:
What is even more important to understand is that the Constitution isn’t actually our constitution. In fact, it has never been America’s true constitution. That’s because the Constitution (the written document) is only a representation of something real — or rather, in this case, something which used to be real. Its words were an attempt to encapsulate the Founders’ expression of the young Anglo-American nation’s implicit, unwritten constitution.Here he means largely what Brownson meant by the “unwritten constitution,” which in itself harkens back to the used-to-be-common assumption that all politics must rest about some ethical foundation, and that foundation is essential to the stability of the structure. Or, to use a different metaphor, we can view that Constitution as “a map, a symbolic representation of a cultural and spiritual territory” that “is not the territory itself.” Nations, he says, referencing the words of 19th Century French writer Joseph de Maistre, are not composed of paper and ink, but of heart and soul. Furthermore, de Maistre believed it foolish to think the most fundamental aspects of social life could be captured in words, and repeated the ancient claim that a surfeit of laws is a sign of disorder.
Lyons clearly makes the case for the disjunction between the unwritten and written Constitutions:
When the Founders drafted the Constitution, they were giving expression to an essential constitution of the American nation that already existed in unwritten form, and which continued to endure for a long while. But in time, even as the written Constitution continued to reign in official law, the spirit that governed the American people changed as they changed, and the corresponding unwritten constitution withered away and was replaced by a new intrinsic constitution. In fact, it’s probably accurate to say this happened multiple times, or in multiple stages. Yet in any case the unwritten constitution animating the American state today bears almost no resemblance at all to that preserved in the historical relic of the Constitution.Furthermore:
Much of what we’re seeing today in our seemingly revolutionary times is the outline of this new unwritten constitution becoming increasingly visible in law and government as the chasm of difference between it and the original American constitution becomes too wide to conceal any longer. More and more often now, the new regime fails to keep up appearances by successfully wrapping itself in the confining ritual pretences of the Constitution. Its mutated form is simply growing too hulking and twisted to fit.Absent the “public spirit” that animated the creation of the document in the first place, the Constitution’s provisions, which at one time were aptly described as a “lion’s leash on an amiable sheepdog,” become instead a whip in the hands of a merciless master.
Brownson understood well these dynamics, but lived in a country not only chronologically closer to the framers, but spiritually as well. He understood that politics operated on a set of moral and social “givens,” those typically unreflected-upon assumptions that limit and direct what the state may do. Periods of political turmoil occur, as Brownson witnessed in the Civil War, when those “givens” are brought to light and so are no longer given but are subject to what we foolishly refer to as “critical thinking.” “Givens” operate best when not thought about, but they can wilt rapidly under the glare of investigation for the obvious reason that, since they were given, they were never really reflected upon, leading to a failure of the mechanisms of defense. People who have never been asked to defend a position will be at a distinct disadvantage once required to do so.
Brownson, in the middle of our nation’s greatest crisis, realized that a lot of our political language, particularly about rights, derived from a much deeper, longer, and richer heritage — that of Christian thinking about the human person — and could only with difficulty sustain itself once uprooted from that soil. An essential part of that Christian thinking involved insistence on duty, on piety, on virtue, and on relationality. All this dissolved, however, in the Lockean world of abstract rights with its insistence on emancipation, self-determination, contract, and consent. (Whether his was a fair reading of Locke is another question.) Brownson believed that our unwritten constitution always stressed our status as parents and partners and siblings and neighbors and friends and church members as prior to and higher than our status as citizens. The focus on man as citizen would paradoxically work as an acid on community life, making us more powerless and helpless and more dependent on government to secure our well-being.
Brownson claimed that the unwritten constitution kept us from the twin dangers of atomization (hyper-individualism) and collectivism (or statism). Furthermore, it prevented a new kind of tribalism by directing persons to pursue a common good instead of that of their particular group. That collective good, Brownson believed, involved the idea of ordered liberty as a universal aspiration, one that would apply to master and slave alike. Only when the state serves its limited purpose of paying attention to the goods that we share in common rather than narrowly focusing on the interests of this or that individual or group, will the written Constitution match the unwritten one.
As I said: even in the middle of the Civil War, Brownson saw nothing but continuity between the unwritten constitution of his day and that of the framers. No one can say for certain when that continuity ended. My own theory emphasizes “drift” that operates incrementally at first but gradually picks up speed. Things get pushed apart at increasingly rapid rates, forced by levers of crisis: war, economic hardship, political corruption, technological changes, social and demographic dislocations, and alterations in our moral thinking. We would expect the decline of family life, hypermobility, moral relativism or nihilism, the application of technologies not just to nature but to human nature, dog-eat-dog economics, and so forth to rewrite our unwritten constitution. We live now in an era where the old Constitution no longer fits, but we lack the capacity to sew a new cloak for ourselves. So we stand naked for the moment, wondering and worrying about what we will look like once clothed again. For some, only a return to the prior unwritten constitution will allow our written Constitution to once again work; others are willing to see the written Constitution as a relic of a world thankfully past, a relic whose final destruction will usher in a world of peace, progress, prosperity, and perfect self-realization. Those who buy neither vision now find themselves homeless in our polity, desperately hoping for a third way that may never come, for the forces that are rewriting the unwritten constitution have the power of inscription in their hands.
Discussion Questions:
Does the idea of an “unwritten constitution” make sense, and in what ways does our written Constitution match the unwritten one of its day?
Since we know that society changes, must the Constitution change as well? What are the mechanisms for accomplishing this? What role does the Supreme Court play?
At what point does the disconnect between the unwritten and the written constitutions become so great that the only option is to jettison the latter? What would then take its place?
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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