Reason and the Unfounded Constitution
In Gerald Russello’s account of Russell Kirk’s Constitutional theory, he conscisely outlines Kirk’s thought on that central concern for conservatives and indeed for all Americans. As Kirk understood, the Constitution is a great Fact of American experience, whose importance cannot be overlooked; and yet, as any historian could tell us, the trouble with facts is that they are at once stubborn and cagey. They will not go away, but they also do not necessarily surrender their meaning, if we come ill equipped for interpretation. Far from taking issue with any of Russello’s claims, I would like to highlight three elements in Kirk’s thinking that may require either explanation or modification if his main ambition—which I take to be a revival of Brownson’s distinctly Catholic interpretation of the Constitution—is to appear as compelling as it ought.
At the heart of the three points I shall discuss lies Russello’s citation of Brownson on the foundation of our written constitution on an unwritten one. I shall consider i) the essential reliance of this premise on just that theory of civilization it was Kirk’s life work to advance; ii) the path this claim cuts, in the hands of Brownson and Kirk alike, between the abstract rationalism of liberal political theory and what I take to be the troubling “anti-rationalism” at the heart of such conservative thinkers as Michael Oakeshott; iii) and, the necessity for a richer understanding of the “Christian doctrine of natural law” than Kirk explicitly provides, if it is to serve as the hypostasis, as it were, that makes tenable any claims about the existence of an unwritten Constitution.
The Past is the Unwritten Constitution of the Present
According to Brownson, the United States, as a people, as a nation, is properly constituted by its whole way of life: its customs, practices, and vision of what is the purpose of human life and all things. The written constitution is merely an “ordained” distillation and expression of some aspects of this unwritten constitution and is dependent upon it. Thus, Brownson may be understood simply to take the side of Edmund Burke against Thomas Paine in their great argument, in the wake of the French Revolution, as to whether any constitution besides one that is written, one that is promulgated as positive law, could bind persons together as a people under one law.
For Burke as for Brownson this was more than a local argument regarding what constitutes a legitimate polity. It bears rather upon the more fundamental question of how we, as a people now living in the world, stand in relation to the whole body of knowledge and experience of our ancestors and in relation to those who have yet to be born. Kirk, perhaps more richly than any other American thinker, has dilated upon the significance of this question in order to offer a complete theory of culture.
If one peruses any of Kirk’s many volumes, one will find abundant quotations, oft repeated tags and phrases (as, for example, his perennial intoning of the first lines of Yeats’s “The Second Coming”), and above all a style that draws unapologetically on the cadences and expressions of the great English prose artists, such as Samuel Johnson, Cardinal Newman, and Henry Adams. Much like T.S. Eliot’s modernist poem, The Waste Land, one could speculate that a quarter of Kirk’s writing consists of quotation, and a majority of it of allusion and imitation. His prose is a weave of the words of the living people he has met and, above all, of the magnificent letters of the dead that he has studied.
This is no mere stylistic tick. Kirk’s central insight about civilization is that past writes the present; or, conversely, that the present is entirely constituted by the thoughts, actions, and events of the past. He cites with approval Eliot’s chastening of Whiggery—the belief that the enlightened present has left the past in the dustbin with its ignorance—in favor of tradition:
Someone said: “The dead writers are remote from us because we know so much more than they did.” Precisely, and they are that which we know.
Kirk learned from Eliot that the present is nothing other than the pattern of the past, and a failure to see the form, the pattern, entails not simply the forgetting of our history but our becoming incomprehensible to ourselves. But there is more.
Kirk does not offer a deterministic traditionalism that falls silent as soon as it has pronounced that the past constitutes the present. That is just his factual claim. Rather, he contends that consciousness of this dependence should make us conscious also, in Bernard of Chartres’s aphorism, that “We are dwarfs mounted on the shoulders of giants.” The past makes possible new achievements—natural developments and even, sadly, radical departures. We dwarfs must see that within the past that constitutes us lies a vast catalogue of experiences and ideas that are of unequal value. Only in recognizing our dependence upon it can we hope to sift that inheritance with wisdom or good judgment in order to discover which of its insights should bind us. This is a quest for “normative perception,” wherein we study the three great sources of the contents of civilization: “revelation, custom or common sense, and the insights of the seer.” Those who deny the claims of these things upon us would not only cut our legs from beneath us, but would risk the loss of a wisdom adapted to the infinitely fine complexities of human society and to which we may never again gain access.
The woven pattern of the past makes us who we are. Its accumulations make possible our present imagination, reason, and judgment. And, finally, the treasures of the past provide us access to a wisdom that we may not be able to generate unaided or anew. No one can read Kirk without hearing these claims assert themselves as constitutive of civilization as such. Just as Kirk frequently insists upon the analogy between the personal, moral order and the public, political order, so he suggests that this theory of civilization also applies to the constitution of a people, whether that people is governed by a written constitution or not. In this light, the peculiarity of the American experience has been our sustained argument about the meaning of a legal document not in terms of the culture from which it springs, but in terms of whether its interpretation should be bound by or freed from that culture. Kirk’s The Roots of American Order marvelously sets the Constitution within the pattern of the past, denying legitimacy to any merely positivist reading.
The Life of Learning as the Truest Political Philosophy
Anyone who has read Burke’s disparagement of “metaphysicians,” calculators, and economists, in his Reflections, will understand why some critics of conservatives may dismiss their position as “romantic” and “antirational” (two words Russello cites). If the conservative theory of civilization is necessarily one of deference to a past that constitutes us, lifts us up, and contains precious and fragile wisdom, it may consequently seem to be an ideology of slavish anti-intellectualism. Now, Burke’s epithets were plucked from the rhetorical conventions of his day and cannot serve as an unqualified basis for his view of philosophy; but in our day there is a species of conservatism that owes about equal debt to Burke and David Hume, which does, to my mind, seem anti-intellectual. The work of Michael Oakeshott, for instance, has often been taken to dismiss all uses of abstract reason in political life. Only the practical reason of custom matters, and often our explicit political thinking has nothing to do with it. Politics would seem to be about what we do independent of reflection. When we mistake thinking rather than custom for reality, he suggests, we become mere ideologues. In contrast, the Jacobins in Burke’s day and certain forms of constitutional conservatism in ours stand athwart such a position, insisting that only the written positive law can bind us.
Kirk’s theory cuts a wise path between these positions. He admired and cited Oakeshott in order to deflate those ideologies that would dare to remake the intractable yet fragile world of history into a utopia modeled on their private store of ideas. Further, as I have noted, Kirk deems custom per se one of the three great sources of wisdom that build and bind the present. But Kirk, who owned a small book shop in East Lansing during his days as a graduate student at Michigan State College, appreciated that the works of humane letters, including even political philosophy, are part of, often the greater part of, our historical experience. He was wary of those who fell prey to what Plato called “misology,” which can justly be interpreted as a cynicism or hatred regarding arguments, reason, and writing (words). The best and most important moments in our lives come often as idleness with a book in hand.
As Kirk notes in his discussion of Burke in The Conservative Mind, Burke’s Reflections was a passionate cry in response to a present crisis not a work of political philosophy, but that does not justify dismissing Burke’s writing as a whole as mere rhetoric. Rather, he seeks to distill and analyze the fundamental philosophical insights that guide Burke’s language. Thus, philosophical thought can no more be sifted out and separated from the custom and common sense of historical cultures than history and human nature can be remodeled to conform to the abstract designs of the ideologue’s will. Late in The Conservative Mind, Kirk invokes the term “scholar” to designate those great thinkers and writers whose beautiful words and wise insights constitute our tradition. They are not “intellectuals” who stand apart from culture and seek to destroy it, but those who would help ennoble the human patrimony. To be a scholar is, therefore, not to be a rationalist, but it is to be reasonable. And so, if it need be said, Kirk’s understanding of positive law as dependent on unwritten custom and ancient usage constitutes a historically sensitive, eminently rational, perspective, and not an outright rejection of reason for custom or sensibility.
The Scope of Natural Law
The chief burden of Russello’s essay is to illuminate the role of natural law thinking in Kirk’s constitutional theory. If positive law is not based on some “overarching moral order,” some “enduring moral standards,” then even the most disciplined legal “experts”—technocratic idolaters of efficiency though they be—will soon find themselves practicing an arbitrary and centralizing governance subject to no rule but the limits of power. But, if natural law is unwritten and, indeed, seems to hover in the ether of generality, it can hardly serve as a helpful guide to political life.
Kirk’s articulation of the “Christian doctrine of natural law” is informed largely by Burke and by his study of the deliverances of the Jewish Law and the Prophets. Burke would write “it is our pride to know, that man is by his constitution a religious animal,” and by this he primarily meant that the reverence and fear of God acts as a limit on political power. Great though a king may be, he and the pauper will stand alike before divine judgment and, before the altar, both are equally creatures and sinners. Kirk’s reading of the Jewish contribution to civilization reinforces this idea: the God of Israel is one of Justice. Justice exists, Kirk writes, “arising from the nature which God has conferred upon man; law is a means for realizing these principles,” and so “the people were protected” against the capriciousness of other ancient gods by God and that of kings by a law above kings.
As expressed here, this conception of law as limit and of natural law as divine limit is impoverished in comparison with either the ancient Israelite conception of it or the scholastic conception of natural law that emerged, when the philosophical vocabulary of Aristotle made possible a systematic elaboration of the Jewish idea of law. It invites the incredulity of those critics who ask, what good will natural law do for us when we are being trampled under the boot of a tyrant?
Kirk hints at an answer, but I do not know that he ever developed it. In Roots, he speaks of natural law as relieving the “terror of existence without object or rule.” It provides that rule, but note that it also provides an object, and this should be understood as primary. Natural law is one expression of the ordering of all things, including human actions, to an end, an object. According to St. Thomas Aquinas, reality is ordered by the eternal law, which is the reason of the mind of God. We may come to know some aspects of that law by way of divine law—those truths about how things are that God reveals—and natural law—those truths about how things are that we discern with our own reason. Positive law consists only of those statutes, promulgated by legitimate political authority, that give particular expression to something known by way of natural or divine law.
The question that arises, then, is “what does natural law do?” It clearly does not operate like positive law—which, for instance, binds or punishes our actions; if it did, positive law would be redundant. Here, in telegraphed form, are the premises of natural law. We know that all things aim at some good. Human beings are by nature rational animals; that is, what makes us human is our potentiality to reason. Those goods at which human beings should aim to fulfill their nature, therefore, are just those that are in accord with reason. The highest good of reason (or of the intellect per se) is the contemplation of truth. God is truth itself. Therefore, as far as human beings are concerned, natural law is simply the body of knowledge that we have discerned by means of reason that tells us how to fulfill our rational natures. It tells us whatever reason can tell us about how to order ourselves and our society to the contemplation of God.
On this account, natural law can help us to order a human community according to reason, and specifically so that it respects the rational nature of every human person. It can also indicate to us what is in violation of reason and therefore hurtful to human persons. It provides an object according to which we may orient ourselves and, at best secondarily, it suggests what would lead to disorder. It would be a mistake, therefore, to suggest that the natural law can limit evil, as if it might have intervened to save the victims of the Nazis from the gas chamber. But it could have guided said Nazis to discern the disorder of their actions, or those who resist such cruelty to know that they do so in accord with justice and reason.
In The American Cause and elsewhere, Kirk defines “decadence” as the loss of an object, the failure of the purposive ordering of civilization to its end. Because he was primarily a philosophical historian, rather than a moral philosopher, he was wary of shifting from the language of description to that of prescription. His gift was for the evocation of those who manifest and defend first principles, rather than for laying down arguments regarding the metaphysics and teleology of human life. In consequence, his discussions of the natural law are adequate to his purposes, but underdeveloped for an age such as ours, when the normative goodness of creation and the potency of human reason are both under continuous assault.
Kirk’s writings on the constitution work to fend off a related, but distinct, kind of assault. Confident expositors of human reason without a history, totally beholden to utilitarian views of the good, and pursuing a utopian vision of society, sought to untether the Constitution from the civilizational riches that made it both possible and intelligible. He wished merely to remind those who thought they were self-created and autonomous that our lives and norms, along with such rare achievements as the Constitution, are gifts ratified by the “democracy of the dead.” To treat them as gifts outright risks misunderstanding and destroying them; to treat ourselves as the masters of all things was to misunderstand and harm our own natures. Kirk was there to remind us of our limits and of the noble dead who give shape and reason to our thought.