We need a constitution that will bend to populist winds so that it will not break.
At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism. And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.
But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did. Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.
But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience. First, if the rate of technological and social change has speeded up, historical experience provides less clear signposts than it did previously. The experience of the ancient Sumerians and the hunter gatherers they replaced did not illuminate the issues of late eighteenth century parliamentary democracy even for Burke. Today, technological acceleration distances our own era from previous ones at an ever faster rate. And, while human nature does not change, policy depends on the intersection of our nature and the environment. Or to put it in an economic way, people’s fundamental goals may not change drastically, but their constraints may, if technology changes quickly. Inferences about present policy become harder to draw from the past.
Second, while historical experience is one way to get the benefit of many minds in their evaluation of a social issue, there are other methods of gathering dispersed information in the modern era. Today we can use crowdsourcing and prediction markets to project the results of policy. Empiricism becomes an ever better method to test the effects of policies as we have more data and more powerful computers to run the analysis. And data sets capture more proximate experience than the kind of historical prescriptions Burke invoked. (Parenthetically, I would note that the rise of computation is one of the reasons that the study of law’s historical course is losing out to empirical legal studies as a method of assessing the efficacy of contemporary law).
The faster pace of change emphatically does not mean that we should use the abstract reasoning of the philosophes to resolve social policy. That approach still has aridity, rigidity, and isolation from lived experience that Burke brilliantly identified, But it does suggest that our focus should be less on institutions that try to reflect historical experience or preserve the status quo than on those that allow us to evaluate new policies for new situations based on evidence. Federalism in particular and decentralization in general are examples of such structures, because they allow for experimentation and evaluation. Unfortunately, many of our Supreme Court justices are descendants of the philosophes in their enthusiasm for the abstracting reasoning of national rights creation. They thus undermine federalism, a venerable structure still well designed for modernity.