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Culture’s Challenge to Constitutionalism

Democracy in America is justly famous for showing that democratic government depends not only on institutions but on culture. The American culture Tocqueville described was individualistic but socially cooperative, creating all kinds of civic associations. Its society was religious but under the domination of no one church or sect. It was egalitarian, but not deeply envious and resentful of success and wealth of others.

Certainly the subtext, if not the text of this  great work, is that the culture was as responsible for a flourishing society as any institutions set up by the Constitution. Indeed, the institutions of the Constitution might be considered mere extensions of the culture of civil society at the time. For instance, because civic associations provided social benefits and indeed disciplined the character of citizens, the relatively light and limited government of the Constitution was both possible and effective.

But what happens when that Constitution becomes part of a wholly different culture less conducive to mutual aid and self-discipline? A lack of congruence between culture and law is the greatest challenge to legalistic constitutionalism, including its most persuasive form, originalism. Gouverneur Morris, the man who wrote the Constitution, summed up this dilemma best in expressing his pessimism about the French Revolution: The French “want an American Constitution without reflecting that they have not the American citizens to support it.”

Consider just part of our contemporary culture, that of social media, and particularly Facebook. The social relations it helps create are wholly different from those celebrated by Tocqueville and perhaps less than democratically salubrious. In Tocqueville’s America, when people came together in civic associations, they saw one another in the round. But through Facebook people generally present carefully curated, airbrushed versions of themselves.

This means that the most important fake news on Facebook may ultimately not be political but personal. The feed is not exactly false but it is misleading about the fundamentals of lives around us. One could well imagine from looking at Facebook feeds that almost everyone is going from one triumph to another, interrupted only by fabulous vacations. It a recipe for social envy.

To be sure, Facebook does not constitute the sum and substance of social relations today. But no one can doubt, given other changes, particularly the decline in the amount of time spent in traditional civic associations, that our culture today does not much resemble that of Tocqueville’s America. Many conservatives complain that libertarians and classical liberals who favor legalistic constitutionalism mistakenly ignore that cultural chasm. Their view is that if we do not save the culture, good constitutional law will not protect us.

The difficulty with this argument is that culture is a very complex fabric, dependent on the decisions of millions of people and the technology of the time. No social policy or even set of policies is likely to restore the social virtues of Tocqueville’s America. And the power the government would have to wield to transform culture is wholly antithetical to the individualism that was a key component of that vanished time. Thus, the conservative critique of a legalism that ignores culture is more powerful than its proposed solution. And because of the weakness of its alternative policy program, the critique does not ultimately undermine the case for enforcing the original Constitution, even if we should look for policies consistent with its meaning to promote a culture that will better complement it.

Constitutional legalism is no panacea, but it is the best we lawyers can do.

Reader Discussion

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on January 08, 2019 at 06:15:36 am

At this point, constitutional legalism is the best that lawyers can do because the Constitution presupposes a religious people who are God-restrained. Someone in the past said something like that.

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Peter Aiello
on January 08, 2019 at 10:10:13 am

But for its central mischaracterization of "conservativism" and its saturation with ambiguity McGinnis' article is otherwise unremarkable, a commonplace assertion that all of his students (one would hope) already know of the important relationship between culture and constitution.

Here is his central error:
"Thus, the conservative critique of a legalism that ignores culture is more powerful than its proposed solution. And because of the weakness of its alternative policy program, the critique does not ultimately undermine the case for enforcing the original Constitution, even if we should look for policies consistent with its meaning to promote a culture that will better complement it."

McGinnis misstates American intellectual and legal history and incorrectly asserts (offering no support) that conservatism's critique is "of a legalism that ignores culture." Where is this so? Give me an example of a Supreme Court opinion written by Scalia, Rehnquist, Thomas, Alito or Gorsuch which is critical of a majority opinion because it "ignores legal culture?"

Further, McGinnis suggests that the so-called "conservative critique" to which he refers runs counter to originalism yet "does not undermine" the case for originalism. Conservativism, to the contrary, supports adhering to the text, meaning and intention of the original constitution as written, meant and intended by its Founders and ratified by the people in convention. Hence, conservatism supports, does not deny, originalism and, contrary to constitutional liberalism, denies that the constitution was intended to be a "living document" open to flexible interpretation and subject to evolution and change with the times (except, of course, by amendment.)

Conservatism also stresses the importance of individual liberties, as does the liberal interpretation of the constitution, but since the Court's dramatic, constitutionally- unsupportable shift toward a living constitution embraced by the latter FDR Court and thereafter, especially by the Warren Court,, conservatism has lost a great deal of its former faith in the judicial system and seeks to restore that faith by recovering the lost constitution.

Finally McGinnis refers (again without explanation or example) to "the weakness of its (conservatism's) alternative policy program." What in the world are you talking about? "Alternative" to what? What are the elements of this mysterious conservative constitutiona "policy program?"

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octothorp
on January 08, 2019 at 11:13:31 am

So we'll keep the Constitution, it just won't be a republican Constitution because we won't be republicans. We very nearly got there in 2016 - and indeed the lawyers contributed greatly. I think Robert George was right, although the contract argument was an admirable effort.

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MPB
on January 09, 2019 at 13:21:10 pm

Hard to know these things, hard to discern cause and effect, as everything operates on everything. So perhaps greater fealty to the Constitution by the judiciary over the decades would have prevented some of the developments assigned to the category "cultural." We'll never know.

However--scruples. This is what differentiates conservatives from progressives. Conservatives agonize over decisions, never certain that the act can be reconciled with the principle. Progressives' only principle is expediency--whatever advances their demand du jour is for that reason Morally Right, and their media auxiliaries sell it without ruth or relent. If you go by the media, we've always been at war with Eurasia and the chocolate ration was doubled.

I know it's dangerous, but desperate times and all that: until conservative judges, especially appeals court judges and especially especially Supreme Court Justices, begin to deliberately, by decision, undo the progressive maiming of the Constitution, case after case, precedent after precedent, cow after cow, the document will disappear even from beneath the bulletproof glass in the National Archives. It will become an unDocument. Justice Thomas seems to be the only one who truly understands this. It would be nice to see conservative-leaning legal faculty more vigorously and vehemently exhort the courts to do just this.

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QET

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.