Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
In his great work, The American Republic, written in 1866, the American Catholic political writer Orestes Brownson – who ranks with Calhoun and John Adams as among the finest political minds America has produced, and who still remains somewhat neglected – wrote this about the nation’s political order.
The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.
The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is Providential, not made by the nation, but born with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted.
This dual structure also informs the work of Brownson’s greatest intellectual descendant, the conservative writer Russell Kirk (1918-1994), whose major book The Conservative Mind celebrates its 60th anniversary this year. Kirk drew explicitly upon Brownson in that book, arguing that constitutions must first be drawn from historical experience, and are the product of slow growth. Indeed, Kirk says that whatever the form of government that has grown up in a nation, that “must” therefore be the best form of government for that nation. For constitutional government, the same rule holds, Kirk writing that “no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention , affirms an enduring moral order of obligation and personal responsibility.” In the subsequent forty years of writing, until his death in 1994, Kirk rarely strayed from that conviction, but he did explain in further detail what his early work set out only in outline.
Although Kirk is not primarily known as a legal thinker, over the course of his career, and especially in the last fifteen years of his life, Kirk devoted several important essays and articles to legal themes. A collection of his writings on the law are found in a posthumous work, Rights and Duties, which combines previously unpublished pieces with an earlier book-length work, The Conservative Constitution. His writings on the law, justice, and the Constitution present a conservative perspective that is opposed not only to a liberal theory based on abstract rights but also to what are considered more classically conservative approaches. Kirk may be classed among the originalists, in that he believes the Constitution does reflect a consistent meaning that relates back to the meaning it had during the founding period, and that judges should exercise restraint in interpreting the Constitution. However, his concern is really with the cultural underpinnings that make a written constitution workable in the first place. Paraphrasing the Harvard critic Irving Babbitt, Kirk believed legal and political problems were at first philosophical, then theological problems. A community that was confused about its founding principles would be confused as to its laws. Understanding the customs and traditions of a nation must inform our understanding of the written Constitution.
In his works, which primarily concern intellectual history and biography, Kirk delineated a comprehensive critique of liberalism. He focused on finding (some would say creating) a tradition of conservative thought, descended from the Whig statesman Edmund Burke, to counter what he saw as the desiccated rationality of the Enlightenment and the coming post-liberal age that Kirk termed the Age of Sentiment. His individual studies of writers such as Burke and T.S. Eliot, and his more thematic works such as The Conservative Mind or America’s British Culture, were intended to identify enduring cultural norms upon which, Kirk believed, civilizations must rely. His writing was for this reason narrative and evocative rather than purely analytical, deliberately creating a conservative style of thought that was – rhetorically and substantively – a counterpoint to what he saw as liberalism’s excessive devotion to scientism and abstract rationalism.
His mode of writing about the law is in this vein. Kirk is not interested, really, in professional arcana like statutory interpretation or parsing precedent. In constitutional law, as in other areas, Kirk displays his central themes: a suspicion of centralized power and rule by “experts,” a devotion to tradition, and a commitment to the nation’s federal structure. He repeatedly states that the purpose of the law is a simple one – it is to keep the peace. Because it is intended to keep the peace, the law must evolve gradually out of actual disputes and compromises of a living community. The law must not be imposed top-down, as such an enforced peace is not peace at all. Moreover, such a legal system reduces certainty and fairness, and turns the legal system into a struggle for power.
But at the same time, Kirk believes in an overarching moral order that also – as much as local custom or convention – informs both the law and the Constitution. However, Kirk developed his own perspective on whether, and to what extent, that law has to do with positive law. He emphatically rejected a view that the Constitution required “substituting [the] personal and shifting value judgments of nine judges – who can form no consensus among themselves – for enduring moral standards derived from religion, philosophy, and a people’s custom and convention.” That perspective, unfortunately for those seeking a Kirkian “system,” does not reduce itself to a series of propositions or statements of “right” answers. Rather, Kirk was a forceful voice for multiplicity and diversity in constitutional arrangements, but those arrangements must be adjusted and modified at local levels and across a myriad of courtrooms and other fora. The conservative obsession, at least since the 1980s, with fixing the “original meaning” of the Constitution had little resonance for him given his larger cultural concerns.
The historian Clinton Rossiter once quipped that Kirk was born in the wrong country a hundred and fifty years too late, and Kirk was criticized by fellow conservatives (such as the libertarian Frank Meyer) for promoting a static social order of squire and servant rather than a free republic. But amidst the sweeping history of The Conservative Mind is a chapter titled, “Legal and Historical Conservatism: A Time of Foreboding,” which treats the work of Henry Sumner Maine, Leslie Stephen, and W.E.L. Lecky. This chapter has not received significant attention, but in it Kirk undercuts the vision of him as a faux-aristocrat. First, he approves Maine’s assessment that the transition to the modern world is from status to contract. Contract accords each of us the right of freely entering into agreements. In his discussion of Maine, Kirk notes that “the source of social wisdom is the knowledge of past ages, but that dreary imitation of what once lived will stifle the most gifted peoples.” Kirk was no reactionary.
Kirk is often challenged for his statement in The Conservative Mind that civilized society “requires orders and classes, as against the notion of a ‘classless society’,” and that some such hierarchy was necessary for a stable social order. Kirk’s argument is typically misunderstood as an approval of a particular social order, specifically that of late eighteenth-century Britain, and that such a social order must mean people stay in place. Neither of these mischaracterizations are true. Kirk in fact had no patience for the eighteenth century, which he called “an age of gilded selfishness and frivolous intellectuality— an age almost without a heart.” His preference for Burke over other thinkers of the same era, for example, Bolingbroke was because, for Kirk, Burke was “essentially a modern man, and his concern was with our modern complexities.” Rather his point is that every society has such hierarchies and orders, and to pretend otherwise – either by inventing a Marxist “classless society” or an equally imaginative egalitarian utopia, actually undermined both order and liberty.
The “science of jurisprudence” likewise cannot be weighed down by the dead hand of the past but must change with “the passage of the generations.” The law is not, Kirk says, “immutable.” But the fact that the law changes was less important to Kirk than how it changes. In the Anglo-American tradition, Kirk identified several prerequisites, foundational principles upon which the rule of law rested. The most important of these are first, that the law is not an arbitrary system to be used by those in power against those who are not; second, the notion that no one is “above” the law; and third, that the sources of law are custom, tradition, and precedent. These features, for Kirk, it must be stressed, not themselves part of the rule of law or the formal “legal system,” but rather arise from the historical experience of the West. Taken together, they represent a strong preference for gradual, piecemeal development of the law, with few if any abstract, universal principles imposed from outside.
This approach can be frustrating, and Kirk – in part because he came to legal discussions rather late in his life – never fully developed, for example, how he would reconcile both his belief in an enduring moral order with his approach to specific legal questions. Some essays, however, give an example. In 1986, he wrote a long essay on the Supreme Court’s pornography jurisprudence. Kirk’s thesis was simply that local communities needed to decide how to treat such materials, or even to permit them at all. The moral absolute of free speech – if such there was – applied only to political speech. To find otherwise, and to let judges, especially the Supreme Court, apply their own pet theories as to whether something was obscene, was a recipe for social disaster. One thing the precedent demonstrates was the “imprudence of transferring to an arbitrary central authority decisions that have traditionally been made by local communities or state legislatures.” In short, such arrangements might differ across the country. It is liberalism, not conservatism, that was imposing a moral straitjacket on the country. In this he sounds something like Willmoore Kendall, in his 1964 article on the school prayer cases, who made the same point. “We the people” must live together in our various communities, and the law should reflect our considered sense of justice.
Kirk wrote several important essays on the “natural law,” which he sharply distinguished from the doctrine of “natural right,” an ideology he traced to the French revolution. Some have criticized Kirk’s reliance on the natural law, which they say was both too commanding and yet too vague to be of real use. Drew Maciag, for example, in his recent book on Edmund Burke and his reception in America, finds Kirk’s invocation of the natural law underwhelming and indeed “slippery.” For Maciag, Kirk’s proposition “that humans could not determine where natural law began or ended, and should neither define it too precisely or too vaguely, but should be guided by it” made little sense, and was more a romantic, antirational invocation of romantic sensibility than a persuasive account of the natural law, much less the details of its operation.
But this overstates Kirk’s use of the natural law. First, in the everyday world of disputes, the natural law will be little invoked. Indeed, he wrote that the “Christian doctrine of natural law cannot be made to do duty for ‘the law of the land’; were this tried, positive justice would be delayed to the end of time. Nevertheless, if the Christian doctrine of natural law is cast aside utterly by magistrates, flouted and mocked, then positive law becomes patternless and arbitrary.” Natural law is “more than a guide for statesmen and jurists. It is meant primarily for the governance of persons — for you and me, that we may restrain will and appetite in our ordinary walks of life.” Careful attention to historical development and actual community norms would be a better guide to the natural law than philosophic theorizing, to which judges are unsuited.
Kirk himself warned against this use of natural law as trump in his recounting of the controversy between Senator William Seward and Orestes Brownson. In a speech on the Senate floor in 1850, Seward stated there was a “higher law than the Constitution” regarding laws about slavery. This speech caused Brownson to write in reply one of his more famous essays, the 1851 “The Higher Law,” which argued that while the law of God may indeed be above that of the Constitution, the Constitution is not intended to channel private judgment about what that law is.
Nevertheless, both progressives and conservatives have called upon the natural law to serve their purposes, often deriving various principles out of elaborate theories. Yet for Kirk the natural law had a public purpose only in the most narrow of circumstances – tyrannicide is the only clear historical example Kirk uses, when arguing that those conspiring to kill Hitler were justified in doing so. Kirk sees the natural law as a bulwark against a conception of law that does not acknowledge any boundary to the lawgiver’s power. Kirk termed this as positivist law, which rests all authority only in the state.
This brings us now to the Constitution. Kirk objected strongly to the view that the Constitution reflected a Lockean state of nature. Indeed, he wrote a famous essay titled “The Constitution Was not Written by John Locke.” The “social contract” was a dangerous fiction, and if there were any such agreement it was one between generations and bound by sentiments such as love of neighbor and a sense of duty. The Founders were not Lockeans, and the majority of Americans at the time, the ones who actually ratified the Constitution, were small-town communalist protestants more influenced by moralist Thomas Browne (and Burke) than Locke.
Instead, the Constitution was the final flower of the “great tree” of Anglo-American jurisprudence, and not something born simply of the minds of the fifty-five men gathered in Philadelphia. He did acknowledge the novelty in some respects of the American governmental system, as defended for example in the federalist. Kirk saw that the tripartite federal system, with its division of powers, extended over such a large republic, was new in political science, and was without clear British or classical models. Nevertheless, at the state and local levels, much remained of British practice, not least the strong tradition of common law and the use of British precedent and legal treatises. Kirk saw political parties, the presidential cabinet, and the primary system as important supports for our written constitutional orders.
That system rests in turn on the “postulates” of Christianity. In an important 1983 lecture, Kirk draws on Maine, again, and more recent legal writers such as Roscoe Pound to claim that the particular forms of Anglo-American law reflect, even if opaquely, certain Christian assumptions. Without those assumptions, the legal system will collapse, and be used merely as a tool for social engineering and “judicial metaphysics.”
The law that judges mete out is the product of statute, custom, convention, precedent yet back of statute, custom, convention, and precedent ay be discerned, if mistily, the forms of Christian doctrines, by which statute and custom and convention and precedent have been much influenced in the past. And the more that judges ignore Christian assumptions about human nature and justice, the more are they thrown back upon their private resources as abstract metaphysicians – and the more the laws of the land fall into confusion and inconsistency.
It should not be necessary to state what Kirk is not saying. He is not saying the United States is a “Christian commonwealth,” or one whose legal code need match the Christian moral code (indeed, he stated in a lecture given at the Heritage Foundation that the ‘state is unconcerned with sins unless they lead to breaches of the peace, or menace the social order.”) And certainly much of the practice of the modern administrative state is quite removed indeed from the postulates of human nature Kirk refers to here; rather Kirk is making an historical point that our legal system comes from a very specific, concrete, and long tradition that should not be ignored.
Kirk presents a challenging historical and legal vision of the Constitution for conservatives, accustomed now for almost three decades to fight over the legitimacy of the Supreme Court and the true meaning of the Constitution. Important as the battles over constitutional meaning are, the stability of the constitutional structure lay elsewhere.