How should we think about the relationship between the US Constitution and the law of nations?
The modern nation-state is so familiar to us as a political form that it seems an obvious way of organizing individuals into larger societies. We take it to be, if not the only form conceivable, at least the clear default solution to the problem, inherent in the human condition, of reconciling the necessity of order and authority with some scope of freedom for individuals and for non-coercive associations. And so it comes as a surprise, even a bewildering surprise to us to recognize the internal contradictions that beset, or even the downright mystery that surrounds, the modern political form par excellence.
Of course one could well argue that all political order is resistant to rational explication, that there is no actual or indeed conceivable political form that wholly explains the origins and foundations of our common life. When the Federalist touts the Founders’ proposition of a political constitution established for the first time on “reflection and choice” rather than on “accident and force,” he certainly does not mean to claim pure rational mastery (which would be more the style of the Jacobins of the French Revolution), but rather (as the Papers as a whole make clear) to praise the unusually deliberate reasonableness of the Framers – and, by extension, of the people who waited upon and eventually endorsed their framing.[i] The reasonable view of reason that operates in the Federalist is one that takes full account of the limits of reason’s power over passions and interests (thus, for example, the famous strategy described in Federalist 51 “of supplying, by opposite and rival interests, the defect of better motives”) as well as reason’s dependence on beliefs and affections that it cannot spin wholly from its own resources (as in the appeal in Federalist 2 to the Providential unity of Americans as to ancestry, language, religion, custom, etc., and the expectation expressed in Federalist 49 that the Constitution will not rest on the people’s reason alone but on “prejudice,” or “that veneration which time bestows on everything.”). To carry this reflection on a reasonable and self-critical view of reason one step further, one might say that such a self-understanding of reason recognizes 1) reason’s limited power over what is beneath it (interests and passions); 2) reason’s dependence on what is above it (bonds and purposes it cannot itself fabricate); and 3) reason’s recognition that these lower interests and higher purposes are inextricably bound up together in human existence. Every human interest must have some connection (however slim, or even twisted) with human purpose, and there is always at least a vestige of visceral tribal loyalty in the most sublime expression of transcendence (at least insofar as such an expression is politically effective and relevant). A reasonable person senses these complications in the soul and the city, and a wise person takes them fully into account in judging projects and motives, including his or her own.
To take the permeability of reason to passion into account is not to deny the nobility of the passion for rational order. In fact one might say that such a passion for “the right ordering of cities and households” (Plato, Symposium) has defined the West since the emergence of politics in the Greek polis. Man, Aristotle thought, is an essentially political being in that his distinguishing capacity, his reason, can only find fulfillment through reasoned discussions of what we citizens must do, discussions therefore of what is good and bad, just and unjust, advantageous and disadvantageous. Politics, at its best and essentially, is about reasoning together about what is fundamentally at stake for us, for our community, as human beings; it is about what our association is for – and thus, at least implicitly, about nothing less than what life is for. Of course politics cannot answer such a question, and every political community remains rooted in bonds and interests it cannot scrutinize. Every polis is a cave, and even a cave ruled by philosophers would have to tell noble lies about itself in order to justify a ruling hierarchy within and, even more fundamentally, the very boundaries that separate one people from another, friends from enemies.
The fragility of all such ruling stories, stories that by no means become dispensable once a people has become political by aspiring to reason together concerning what is at stake in human existence, is at the root of the dynamism of Western civilization. Pierre Manent has recently traced the dynamism of Western political forms in a venturesome and magisterial new work[ii] the ambition of which recalls Hegel, but without the overreaching speculative teleology. Respectfully but pointedly distancing himself from Leo Strauss’s attempt to hold up the classical polis, as understood by the classical political philosophers, as a permanent limit and ground of political rationality, Manent argues that the classical model was tied to the tension between the few and the many, and that it necessarily suppressed the more universalistic framing in terms of the One and the All. That is, Greek reason was enmeshed in the tension between aristocracy and democracy, and never clearly envisioned or fully confronted the possibility of unity, that is, of a unified people under a king or Caesar, or a unified humanity under a God. This is another way of saying, I think, that Greek political reason could not accommodate the awareness, in principle available to every human person – and not only to the rare philosopher–, that he (or she) in some way transcends his particular regime or ruling order, determined as it must be by a particular, functional assertion of human virtue. We all know, or can come to realize, that our humanity exceeds the stamp put upon it by our particular political community. Manent shows that Roman thought was already propelled forward by an irresistible universalism (evidenced most concretely in the Roman willingness to die for some elusive “glory” that exceeded all civic identities), before Christians articulated the idea of a truly universal order, the City of God, which demoted all merely human communities to a secondary and provisional status.
Just how this provisional status of the City of Man is to be understood, and just how it might be possible to be a good citizen of both cities at the same time, are of course questions that run through Augustine’s City of God, not to mention the whole pre-modern Christian tradition. But no one can say they were answered. On the one hand, the earthly city’s demotion clearly implies less concern with virtue, or the fulfillment of the soul, and thus a kind of proto-liberal narrowing of politics to a merely human compromise regarding the physical necessities of life. On the other hand, the unquestioned superiority of the soul and its eternal interests over the body means that the Church, which is said to “make use of” the merely human city, is considered to be of higher dignity than the civil authorities. But can the City of God “make use of” the City of Man without reducing it to a subordinate institution (which was the quite logical conclusion drawn, if not by Thomas Aquinas himself, then by his philosophical heirs who made the case for Papal supremacy)? This problem was distilled, but again not really solved, in the characteristic political teaching of the Middle Ages, namely, the doctrine of the “Two Swords,” according to which both religious and civil authorities are divinely ordained institutions, the two operating in complementary spheres, each with its complementary function.
If the “Two Swords” trope had solved the problem of reconciling human transcendence with political necessity, then there would have been no modern attempt to “reunite the two heads of the eagle” – to overcome the debilitating conflict between worldly and other-worldly powers — which is how Rousseau approvingly described the thrust of Hobbes’ political philosophy. Paradoxically, the modern project of unifying human power – the theoretical project of the modern state — depended upon a pretended radical separation between “this world” and “the other world.” The unity of the state would rest on the resolute confinement of reason to universally acknowledged needs and interests; this unity required the expulsion of all higher (and therefore contentious) ethical and religious concerns to a realm now to be considered wholly private. The foundations of an absolutely unrivaled sovereignty, a human association of indivisible authority, could be secured in full rational transparency if only a clear line could be drawn between, one the one hand, the universally verifiable requirements of human nature and, on the other, any optional and therefore partisan and in fact potentially seditious notions about the good or the salvation of the soul. If only.
This, in outline, was the project of the modern state, in pure theoretical form. Its clearest and most radical formulation was authored by Thomas Hobbes. Its confident rationalism may strike us as naïve, but its essential features, if not its rigorous formulation and ostensible grounding in nature, survive today in powerfully influential form in the confident assumption of so many (bolstered by the meticulous efforts of John Rawls) that we can clearly distinguish a “secular realm” to be governed by “public reason” from the murky zone of merely private beliefs and prejudices that may be tolerated as long as they make no claim on law or policy. Of course the historical origins of the modern state are in no way reducible to any such rationalist myth. It suffices to note that a nation-state requires a nation, and even the most secular democracy requires a people, a people who see themselves as native to or otherwise belonging to a land, a determinate territory. (It might be added, further, that democratic nations as we know them would not exist if such peoples had not been willing to compel neighboring or intermixed peoples to learn to recognize the same national bonds). And it is clear that the actual origins of modern states, the prototypes of the modern state, were inseparable from the confessional identities that arose out of and in response to the Protestant Reformation. Pierre Manent has pointed out with admirable clarity that the passage from a confessional state to a “secular” state in no way dispensed with the state’s claim to a certain transcendence:
We forget that the establishment of the secular state presupposed the prior establishment of a new sacred community, the nation. The state could not become neutral unless the French nation previously had become (at least for the vast majority) “the community par excellence,” thus superseding the church. For the secular state to become possible, it was necessary for “very Catholic France” to become simply “France.” It was necessary for the affirmation “I am French” to contain the meaning of an unreserved devotion to the French nation and people.[iii]
Just how the modern nation-state’s transcendence is articulated in relation to a people’s religious commitments is a complicated question that must be answered differently for different cases (very differently in France and in the United States, for example). But the key point that concerns us here is that the authority of the state has never been and could never be grounded in secular “reason.” Nevertheless, the myth of the rational state is powerful, and its power tends ever to increase, if only because its simplicity appeals to our taste, especially to the taste of the most ambitious, for power and for exemption from the personal and political limits of religion and custom.
The tendency of the “rational” state is therefore to consume or to dissolve its own foundations, its own moral and religious substance. In the terms of Manent’s Metamorphoses, the pure modern polarity between the One and the All, the State and the Individual, tends to overpower all substantive, content-laden tensions between discrete social and religious groups. As Tocqueville foreshadowed in his ominous chapter on “pantheism[iv],” the ever-more abstract passion for unity – or, more precisely, the passion against positive moral contents – eventually turns against the Biblical One as insufficiently abstracted from human and partisan claims. In fact this progressive conquest of all moral authorities that cannot justify themselves before the throne of “public reason,” itself tends to become the binding public purpose that operates as a kind of transcendence for the secular-progressive imagination. In this process deep-seated ambitions of two kinds, intellectual and political, tend powerfully to conspire together, whether or not they are operative in the same soul. As Tocqueville again saw with such foreboding penetration, the passion for general ideas and the mystique of the centralizing state are two dimensions of a single force: the intellectual passion to order things according to a constructive, autonomous reason is deeply linked with a political project that implicitly or explicitly attributes sovereign authority to a central power that reason is supposed to inhabit. Once reason is identified ultimately with construction (from Machiavelli’s “introducing whatever form one likes” to Kant’s “transcendental” formalism and beyond) and not with reverence for real presences that transcend the human mind, then the urge to realize that constructive power politically tends to become compulsive. “Seeing like a state”[v] is a profoundly seductive standpoint for theory and practice, and this for reasons that go far deeper than the merely “political.”
State-dependency is thus a syndrome that obviously affects more than just people who rely on food stamps or, for that matter, students and professors that rely on federal grants or companies that rely on subsidies. Deeper than our dependence on any concrete benefits dispensed by government is an increasingly deep-seated assumption, one that generally works at a level deeper than reflection, that our basic problems are technical and not moral. To be more precise: statism is the political manifestation of a certain orientation towards the world, a way of looking at whatever limits me as an individual as a problem to be solved by some impersonal expert power, and not as a feature of reality to be acknowledged within some larger view of the whole to which the development of my character must be attuned. The “rational” state tends to penetrate further and further into human moral, social and religious existence, dissolving all bonds that resist technical definition and claiming the power to substitute rational control for customary and inherited institutions and practices.
Since such a “rational” reconstitution of human existence is impossible, the costs of this compulsive statist project accumulate, naturally generating still more demands for more expert solutions. How far the process will have to go in formerly Christian nations before a critical number of elites are able to come to terms with the destructive nature of the rationalist-statist dynamic and begin to articulate a more humane understanding of “reason”[vi] and thus of political community we may have to wait and see. Or it may be that violent forces of reaction arising among peoples who never experienced the Federalists’ blessed confusion between “reflection and choice” and providential community will not allow us the leisure to watch the self-destruction of “reason” play out.
[i] Tocqueville more than endorses the Federalist’s self-praise: “*** I.i.8
[ii] Les metamorphoses de la cite (Flammarion, 2010)
[iii] Democracy without Nations? (ISI Books 2007), p. 54
[iv] Democracy in America Volume Two, Part One, chapter 7.
[v] James C. Scott, Seeing Like a State (Yale, 1999)
[vi] I have attempted to contribute to such an effort in The Responsibility of Reason (Rowman & Littlefield, 2011)