Academic journal article Humanitas

The 'Wayward Sisters' and Constitutional Interpretation

Academic journal article Humanitas

The 'Wayward Sisters' and Constitutional Interpretation

Article excerpt

It has been said that every religious heresy proceeds from a misunderstanding of the nature of God. Something similar could be said about constitutional heresies. They proceed from a misunderstanding of the nature of the Union. From the time the conservative intellectual movement emerged in the United States in the early 1950s, for example, its self-professed members have been divided into hostile camps who disagree sharply on the nature and meaning of the constitutional system that all federal office holders are bound by oath to support or uphold. The differences over constitutional interpretation reflect even more fundamental differences concerning human nature and man's historical predicament.

For those who might be called mainstream or traditional conservative thinkers, such as Russell Kirk and Peter Viereck, the Constitution that emerged from the Philadelphia convention was the product of a culture and worldview, deeply rooted in European and especially English history, that was acutely aware of flawed human nature. Men and women are torn between higher and lower inclinations. Because we cannot always count on individuals and groups to do what is right for its own sake, governments are instituted to put restraints on the governed in furtherance of community. But since government itself is composed of imperfect human beings, we also need to limit the power of public officials. As Madison explained in Federalist 51:

  If men were angels, no government would be necessary. If angels were
  to govern men, neither external nor internal controls on government
  would be necessary. In framing a government which is to be
  administered by men over men, the great difficulty lies in this: You
  must first enable the government to control the governed; and in the
  next place, oblige it to control itself.

To achieve the latter, the framers built into the new federal system a two-part set of checks and balances, many flowing from compromises mediating the conflicting interests of different states and regions. First, political power within the new general government would be divided among the legislative, executive, and judicial branches. Second, the overall power of the new government itself would be confined to the performance of certain enumerated purposes, with all other powers to be retained by the states or the people.

  In Federalist 45 Madison noted: The powers delegated by the proposed
  Constitution to the Federal Government, are few and defined. Those
  which are to remain in the State Governments are numerous and
  indefinite. The former will be exercised principally on external
  objects, as war, peace, negotiation, and foreign commerce. ... The
  powers reserved to the several States will extend to all the objects,
  which, in the ordinary course of affairs, concern the lives,
  liberties and properties of the people; and the internal order,
  improvement, and prosperity of the State.

Madison added that the operations of the federal government would be most extensive during wartime and that the states would predominate in peace time. And, since peace would be the normal condition, the state government generally would have a more significant effect on the lives of the people than the central government.

As mentioned, most intellectual conservatives have cherished the division of powers between the federal and state levels of government as providing much-needed opportunity for individuals and groups to seek to advance their own and the common good in diverse and complex circumstances. However, a tight-knit faction of intellectuals influenced by the writings of Leo Strauss, many of whom consider themselves part of the conservative movement, has sought to diminish the importance of traditional restraints as supports for man's moral quest, including the role of the states under federalism as a check on federal power. Harry Jaffa and his followers have been especially prominent among "Straussians" in insisting that to celebrate America is to celebrate, not constitutional restraint but radical revolution and innovation. …

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