As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
To say legislation is not a discretely rational exercise is not to say it is positively irrational. But what of the fundamental law that is often taken to be the apex of legislative reason: the Constitution of the United States?
The work of 55 men in 89 days, it could, for several reasons, be regarded as abstract philosophy made concrete. Publius declares off the bat that the question the Constitution presents is whether governments can be established by “reflection and choice” rather than “accident and force.” British Prime Minister William Gladstone, as Evan Bernick notes, called the Constitution “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
Publius was right. The problem is that Gladstone misread him. Read in isolation, the words of Gladstone—who actually said the Americans and the British “alike prefer the practical to the abstract”—have the Philadelphia 55 engaging in what another British statesman assailed as “the nakedness of metaphysical abstraction”: philosophy detached from the concrete.
Yet Publius is not detached from the concrete. To be sure, he calls for reflection, but reflection on what?
Even reason’s greatest champion at the Founding, Jefferson, manifestly did not advocate it in proclaiming truths that were “self-evident.” Their essence was that they presented themselves to the mind without reason’s intervening. The kind of reflection for which Publius calls is reflection on those kinds of truths. He calls for reflection on experience. He does not call for the kind of abstract reflection to which Gladstone—again, read in isolation—seems to assume.
The Federalist as a whole is not a work of abstract reason, but not even that—nor the Declaration—is where American politics begins. If Eric Voegelin, Willmoore Kendall and George W. Carey are right that political analysis should originate at origins, it starts in America with the Mayflower Compact, a document whose humility is striking.
The soon-to-be settlers affirmed that they will pass such laws as are merely “thought to be most meet and convenient for the general good of the colony”—not the laws that are most meet and convenient. The latter would have bespoken complete confidence in reason, whereas what the settlers say is that they are making their best deliberative guess. They both employ reason and perceive its limits.
The Declaration itself, while it harmonized, as Jefferson later recalled, the “sentiments of the day,” was the culmination, not the cause, of revolutionary fervor. Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).
As Donald S. Lutz has shown, in fact the Book of Deuteronomy was the most frequently cited political authority during the Founding period; and among Enlightenment figures, the Baron de Montesquieu, defender of the British constitution, led the way, with William Blackstone—also not a revolutionary—coming in second.
Nonetheless, citations to John Locke—although more often to his epistemological rather than his political writings—are especially common in the 1760s, suggesting that he helped give voice to the American mind and American events. (It is still suggestive that there was no American printing of the Second Treatise until 1773, and not another, Peter Laslett notes, until the 20th century.)
In any event, to say Locke helped give voice to events is flatly different from saying philosophy caused Americans to revolt. It did not, any more than Locke caused, rather than justified, the Glorious Revolution of 1688. In both cases, he helped provide the scaffolding of ideas and words that legitimated and, doubtless, influenced activities that, equally doubtless, were otherwise occurring.
That enhances rather than diminishes the Founders’ achievement. At Philadelphia, John Dickinson told his colleagues:
Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. This is then our guide.
Dickinson’s warning came relatively late in the Convention, in August; in any case he and his colleagues had done remarkably little that could not be traced directly to experience. It could not have been otherwise. Such rational plans as were brought to Philadelphia almost immediately gave way to compromises to which judges or others cannot retrospectively impute discrete reason.
The major resulting features of the constitutional project—separation of powers, bicameralism, representation that cools passions, even the celebrated systems of “filtration” that Madison is widely thought to have borrowed from David Hume—virtually all descend from colonial forms. None of these was invented de novo—sprung forth, in Burke’s description of the Revolutionary French constitution, “out of the brain of Jupiter himself”—on the basis of philosophical abstraction. The only genuinely new form, federalism, was necessitated by circumstance and hammered out less in a spirit of philosophical instruction than in workmanlike give-and-take.
It should not surprise us, then, to see that Publius’ attitude toward abstract reason is, on the whole, balanced even as his disposition toward experience is deeply respectful. Thus Federalist 15 calls on the public to listen to “that best oracle of wisdom, experience.”
That is Alexander Hamilton. In Federalist 43, Madison agrees, writing with respect to the need to authorize the national government to quell domestic violence that “theoretic reasoning in this, as in most other cases, must be qualified by the lessons of practice.” Federalist 52 urges its readers to “consult experience, the guide that ought always to be followed whenever it can be found.” Madison had engaged in that consultation. His pre-Convention researches pertained to experience, not to abstraction.
[N]o human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work: EXPERIENCE must guide their labour: TIME must bring it to perfection: and the FEELING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments. (emphasis in original)
It is true there are contrary rhetorical impulses throughout the Founding. But paeans to reason during the period typically oppose it to the passions, as in Gouverneur Morris’ statement in Philadelphia that “we should be governed as much by our reason, and as little by our feelings, as possible,” or Federalist 15’s explanation that government is necessary “[b]ecause the passions of men will not conform to the dictates of reason and justice, without constraint.” This contrast is different from that between reason and experience.
To apply one’s reason to understanding experience is to confine it to concrete circumstances and thus inherently to limit it. To apply reason to metaphysical abstraction is to give it free rein. To bound it by experience is to recognize that no one’s limitless, Cartesian rational capacities would be adequate to the infinite complexities of politics.
Which brings us back to Gladstone, whose inaccurate contrast of the United States as having supposedly struck its Constitution off instantly, as opposed, he said, to the gradual evolution of British institutions, came in an 1878 article that celebrated the parent and child nations as twin champions of “rational politics.”
Even so, the Prime Minister could declare the American separation from the mother country to have been “a conservative revolution” in which “the thirteen colonies made provision for their future in conformity, as to all that determined life and manners, with the recollections of their past.” Rational, indeed.