Academic journal article Humanitas

More Than 'Parchment Barriers': The Ethical Center of American Constitutionalism

Academic journal article Humanitas

More Than 'Parchment Barriers': The Ethical Center of American Constitutionalism

Article excerpt

Much has been written in the past century about the state of American constitutionalism and the political culture that serves as its animating force. Some scholars have argued that American constitutionalism has evolved so far from its founding principles that political practice today would be unrecognizable by the eighteenth-century Framers. These critics submit that the way to restore constitutionalism to its original form lies in insisting that public officials, and especially judges, abide by the Framers' constitutional intent.

Before one can assess such claims, it is necessary to analyze several aspects of American constitutionalism. We must understand not only what constitutionalism is, but also what is required to maintain a constitutional order over time. This analysis must include attention to the historical, theoretical, and ethical characteristics of constitutionalism. More specifically, it involves developing an understanding of the relationship between liberty and power as well as that between the written and unwritten constitutions. Within the context of the unwritten constitution, central problems of order are discovered. These relate to the kind of character and personality required of political leaders and citizens alike for constitutional government to be possible. (1)

Relating the insights that follow from an analysis of the unwritten constitution to recent American politics, it becomes evident that the movement away from the Framers' decentralized republic toward a highly centralized mass democracy is due to what some political theorists call deculturation or degeneration. American political degeneration is illustrated by the increasing tendency to substitute the political ideas of Hobbesian or Rousseauistic naturalism for the Framers' assumptions about human nature and political life. These types of naturalism tend to view human beings and politics in abstract ahistorical ways that undermine the moral realism that gave rise to American constitutionalism. One of the consequences of this substitution is not only the centralization of power but the proliferation of public policy that replaces inner (i.e., ethical) control with social (i.e., state) control. Taken together, these characteristics mark a crisis of American constitutionalism that is especially evident in judicial politics. It would seem premature, then, if not imprudent, to suggest that the restoration of American constitutionalism can be inspired by the doctrine of originalism as if the problem were a matter of intellectually embracing abstract principles or subscribing to a particular method of constitutional interpretation.

For the restoration of American constitutionalism to be possible, the political culture underlying American politics will have to be infused with the kind of moral realism that gave it life in the eighteenth century. The restoration of moral realism will itself require the presence of individuals who possess what Claes Ryn calls the "constitutional personality," comprising the personality type and imagination that make constitutionalism possible in the first place. Only if this personality type should again become prevalent in American politics would something like originalism have any chance of shaping political conduct. With such individuals setting the tone in society, it is more likely that a historical rationalism and romanticism will be avoided and that political life will be conducted as an attempt at creative renewal of America's constitutional experience. In this way American constitutional history can become a living past that incorporates historical experiences of sound order in contemporary political life by deeply embedding them in imagination and consciousness. When change is necessary, leaders who possess the constitutional personality are equipped to build on the experiential foundation of the American past in a way that synthesizes old and new. Change can flow from continuity with previous generations of Americans who, in their particular circumstances, groped toward the continuation and further realization of civilized life. …

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