What should receive more discussion is the notion of “Liquidating” the meaning of the provisions of the Constitution.
In previous posts I’ve looked at what Raymond Bruckberger, formerly of the French Resistance turned student of American Constitutionalism, John Courtney Murray, and Willmoore Kendall have had to teach about the American commitment to modern republicanism and its theoretical and practical commitments for effectuating it. We should affirm Murray’s notion that
Civilization is formed by men locked together in argument” and then connect this to the American Proposition and its components of human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.
To do so permits a process of compromise, animated by principles while also informed by property and interests, history and legends, under a distinctive bond of reason that can be seen in the arguments over the Declaration of Independence, the Constitution, the state constitutional ratification debates, and the debate in the First Congress over the content and wording of the Bill of Rights. These debates display the compromise and the synthesis of the American constitutional tradition, and these foundational debates help achieve the constitutional consensus that can then be further debated and developed. The question stalking our tradition now is the resolute or ideological manner in which central questions are answered and the institutional mechanisms chosen to implement them. Put differently, our politics is war-like, and the answers for difficult social and socioeconomic questions are seen as too significant to be settled by the deliberate sense of the community. Publius put matters quite differently with his belief in separation of powers that would provide deliberative government, requiring the interests, identities, and loyalties of a diverse citizenry to be locked together in ‘dry political’ argument.
Perhaps an objection is that I have looked chiefly at the ‘constitutional moments’ of the Declaration and Constitution when the normal rules of self-interest and bargaining are attenuated by the promise of a better bargain that will surpass present weighty difficulties. However, the forced constructions of the Constitution by the abstractions of egalitarianism seen in Equal Protection Clause jurisprudence, or the postmodern attachment to liberty as pure will seen in the Due Process decisions of Lawrence v. Texas or Planned Parenthood v. Casey necessarily reduces the constitutional order to fixed philosophical doctrines closed to negotiation, closed to compromise. As such, the Constitution becomes amended or updated apart from the process of representation and the deliberation that would form it. But is such constitutionalizing by judicial doctrine, with the ring of finality to it, of difficult policy questions consonant with the best of American political practice?
In this understanding of constitutional law, the manifold loyalties we have as human persons and that would inform what is represented and negotiated and compromised in the political realm are excluded as legitimating reasons for legislation. In its place is the standard announced by Justice Anthony Kennedy in Lawrence that “Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. . . . They knew times can blind us to certain truths. . . . As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Justice Kennedy equates the Court as the guarantor and voice of this liberty discovery process. Moreover, the voice of the Court provides a nominalist account of the Due Process Clause that is employed by persons in their endless search for greater liberty.
The famous “mystery passage” of Justice Kennedy in Planned Parenthood makes this point in even more dramatic fashion with its contention that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Here, Justice Kennedy has certainly not provided for the ages a judicially administrable standard for due process. Moreover, if our understanding of liberty is this fractured, emergent, evolving, with no content given to inform its use, why a Court would deign to pronounce its constitutional status (which by definition is dynamic and thus will keep changing) is ridiculous. Would not the people feel such emerging, tide-sweeping changes in their bones and demand change in their representative institutions? Far better for representatives to compromise and reach a solution representing the rooted American standards of Calvinist anthropology and classical natural law balanced against the evolutionary humanist understanding that has also been part of the American tradition. Of course, Kennedy may also be informed by a certain amount of impatience with the principle of consent by the governed and its implicit reliance on the moral capacity of the citizenry to pass judgment on the policies that govern them.
Our unbounded notion of equality and consent, and our crazed focus on democratic perfection largely repudiate the founding’s commitment to deliberative government through the representative process. This proposition at its core affirms that all men are created equal, that personal freedom has natural support, philosophically and theologically, and that self-governing citizens are able to erect limited government that allows them to be free and responsible. The American citizen is a person, open to the truth about his being, capable of self-government, and the inheritor of the western constitutional tradition given to America and affirmed by it in its founding documents. This is what our consensus affirms and requires us to develop “upon pain of decadence.”