Do We Want a Redeemed Constitution?

My current podcast is a discussion with a most excellent scholar, Michael Paulsen, on the book he has coauthored with his son, Luke Paulsen, introducing the U. S. Constitution to the general reader. Good as the book is in many respects, it did surprise me with its embrace of the idea that the Constitution of 1787 was a pro-slavery document. In terms evocative of the radical abolitionist William Lloyd Garrison—who once declared the Constitution to be a “pact with the devil”—the authors declare:  “If slavery was our nation’s original sin, the Constitution was our nation’s deal with the devil, and repentance, redemption and restoration did not come easily.”

Is the book’s judgment that our Founding document was pro-slavery justified? I’ll give my full answer in a future post, but for now let me say, I find it unwarranted and wholly dismissive of the principled compromises during the Philadelphia Convention that made it possible for slavery to be extinguished despite its powerful growth.

Before even getting to that, though, I would ask: How exactly does one redeem a political constitution? Or to put it differently, is such a document even among the types of things that can be redeemed?

To think so seems to me, to put it mildly, a category error. It conflates the political things, that is, the human things, with religious concepts and terms. The power of the Garrisonian-sounding statement I’ve quoted consists in the fact that it places the Founding of the American constitutional order under judgment of the supernatural order. Garrison, you will recall, found the federal union so morally corrupted by the inclusion of slave states that he called for disunion as the only acceptable course for free states to obtain moral purity. The limitations of power, interests, and circumstances that the Framers faced in the Philadelphia Convention were, in Garrison’s eyes, no excuse. Did the Framers even have the power to end slavery in the states? No matter. Garrison, we might say, needed the American Constitution to be washed in the blood.

Jacques Maritain in Man and the State (1951) described this facet of the modern mind, an almost millenarian willingness to equip the state with powers too heavy for human hands to hold. He said frequent association of the state with sovereignty–a term of metaphysical and religious absolutist meaning–sets up an expectation that man’s religious longings and hunger might be satisfied, or at least reflected in an institution that simply is not capable of fulfilling that expectation. In this way, a sovereign state can minister to the humanitarian needs that the modern democrat repurposes in the state—needs that become authoritarian when backed with such absolute power. In short, Maritain was warning that such confusion over purposes, powers, and potentialities won’t end well.

Complementing Maritain’s counsel are Pierre Manent’s recent musings about the need to separate human things and religious things. Neither can quite do without the other, but the tension between them is born of the fact that both are entities in their own right that speak to separate human capacities that frequently seek dominion over each other. We must be cognizant that the modern political freedoms of the West, adds Manent, are achieved through human virtues in pursuit of temporal ends. The founders of a political order and its train of statesmen may well be religiously motivated, or motivated by a belief that they are participating in something greater than themselves. But this is not to say that what they have founded must be in accord with the theological virtues. Politics is more limited. We cannot demand from it more than it can give.

And so we return to the Paulsens’ judgment of the American political order: that if it wasn’t ill-founded, it was certainly besotted with sin—and that the pro-slavery Constitution received its redemption through the blood of the Civil War, the rhetoric and statesmanship of Abraham Lincoln, and the Thirteenth, Fourteenth, and Fifteenth Amendments. I note that if we are willing to say that a bad Constitution was made good only through the carnage of war, what does this mean for American constitutionalism? Is its course one that requires constant perfection?

In one of Jefferson’s more unguarded moments, which might have revealed his true mind, he made the famous observation that “the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it’s natural manure.” Pairing such Enlightenment perfectionist thinking with the notion of redeeming the Constitution, we might wonder when we finally get to stop and look to a body of organic, nearly fixed law whose sole purpose is to limit power and, where it is called for, to channel it in ways that uphold the liberties of individuals, states, and communities to order their lives as self-governing entities.

There may not be another civil war to fight, but a redeemed Constitution is a heavy document. How is it to be maintained? Does it need further perfecting by more enlightened understandings of social justice, racial equality, educational equality, gender equality, and now gender identity? Need such perfections be consonant with the constitutional forms of self-government? Or might fuller and fuller redemption require extra-constitutional judicial opinions taking us to domains that legislatures have yet to discover? The Paulsens may well disavow such ambitions. But the potentialities imminent in the redeemed Constitution certainly raise these questions.