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The Constitution’s Design for Promoting Civic Virtue: Part I

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest.  The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

Nothing in the text of the Constitution assumes any level of religious belief on the part of the American people.   The Constitution emphatically does not call for the people to adhere to any particular religion or any religion at all. It prohibits all religious tests for any federal office and permits Presidents to affirm rather than take a religious oath to defend the Constitution.

Rather than rely on religion or indeed some thick conception of secular, communitarian virtue, like Sparta, the Framers built the Constitution on the bedrock of human nature.  As Hamilton said “man will only serve the public interest, if the structure of government interests his passions in doing so.”  Paradoxical as it might seem, Hamilton’s view reflects an important element of Protestant theology at the time which emphasized that politics had to recognize the consequences of the fallen nature of man.   Given the unknowability of who actually was among the elect, even many religious believers would have acknowledged it perilous to make the Constitution depend on the uncertain religious state of the populace.

Instead of relying on religion, the Constitution has a different design to elicit the virtues needed for civic life and its preservation. First, the Constitution creates a commercial republic to make sure the self-interest of man helps promote virtue.  It is remarkable that except for national defense, almost all the enumerated powers of the federal government were meant to facilitate a continental market—to make commerce regular.

There were far-reaching implications to the essentially commercial character of American society.  It put a premium on self-control and honesty; it required citizens to pass judgment informally on one another’s reliability and integrity, since many decisions would be based on reputation; and it required the free exchange of information and ideas so that opportunities could become known.  Thus, commerce rewards virtues of self-restraint, fair judgment and social interchange that are indispensable to republican life.

Creation of a commercial society generates an ethos that reaches beyond merchants, influencing the orientation of everything from education to law. In a society devoted to commerce education naturally focuses on self-reliance, not self-indulgence. Political correctness is in tension with the truth seeking of the scientific methods so important to innovation.

Perhaps importantly, commercial society affects the nature of lawyering.  In a commercial society lawyers’ bread and butter was private law, and by and large at the Founding the bar stood for the sanctity of contacts and property and the formal reading of legal texts that preserved them. Lawyers were spiritually as well as often literally the brothers of merchants. That is sociological reason that the Framers entrusted the legal community through the judiciary with the power of judicial review.

But after the New Deal created a substantially bureaucratic culture, lawyers’ interests turned to manipulating the bureaucracy.  Most lawyers turned against vested rights. They understand law instead as a malleable tool for constitutional transformation, not least because they get a slice of the transactions costs of the bureaucratic state and from each stage of legal change.

Reader Discussion

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on November 16, 2015 at 11:24:41 am

John won the debate IMHO and this nuanced and insightful essay shows why. John is the leading voice of classical liberalism in the legal academy today.

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Mark Pulliam
on November 16, 2015 at 12:49:58 pm

Interesting. I look forward to the next four posts.

A couple observations at this point:

First, "We the People of the United States," seems totalitarian and in 1787, the population was split 99% Protestant, 1% Catholic and the balance "other." So the 1787 draft tacitly claims a Christian virtue rather than a civic virtue. (Perhaps you will define "civic virtue," in a future post. I certainly don't want to rely on opinion I might find by searching.)

We think the preamble presents a civic contract, and throughout these 228 years, there have been many dissidents. US and USA citizenry was and is divided between persons who accept the literal preamble's civic contract--and we dub them A Civic People of the United States--and the rest of the citizens. We seek to establish means, neither secular (non-religious) nor religious, to determine civic morality.

Second, the constitution for the USA, the product of the negotiations begun on September 17, 1787 but finalized with the ratification on December 15, 1791, very definitely codifies the establishment of religion, an institution, rather than thought, a human responsibility. Need I say it's in the First Amendment? [Politically negotiated by James Madison leaving costly error for posterity.]

Federalist 10 does not seem to support the statement "Given the unknowability of who actually was among the elect, even many religious believers would have acknowledged it perilous to make the Constitution depend on the uncertain religious state of the populace." It seems evident that James Madison considered himself capable of discerning the elite.

Regardless, being male, having money, and owning property were the criteria for voting, and in 1790 free citizens who could vote were 6% of the population. What definition of elite applied in 1790, and should we be trying to get back to before?

Today, citizens claim religious opinion that is split: 70% sectarian Christian, 7% other believers, and 23% non-believers. And 100% of non-criminal citizens may vote.

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Phil Beaver
on November 17, 2015 at 14:25:09 pm

Adams also suggested that the constitutional design, of checks and balances, would itself foster a particular character. Reflecting on the Massachusetts constitution, and perhaps on the federal constitution (then in the process of ratification)--both had two houses elected by the people, an elected executive with a qualified veto, and a judiciary with jobs during good behavior:
"Happiness, whether in despotism or democracy, whether in slavery or liberty, can never be found without virtue. The best republics will be virtuous, and have been so; but we may hazard a conjecture, that the virtues have been the effect of the well ordered constitution, rather than the cause. And, perhaps, it would be impossible to prove that a republic cannot exist even among highwaymen, by setting one rogue to watch another; and the knaves themselves may in time be made honest men by the struggle."

The modern administrative state breaks that. Rather than having government by men who rule and are ruled in turn, it creates a permanent governing class. And, not coincidentally, it attacks the separations of power that became enshrined in the Constitution when the Virginia plan's insttutional design was rejected. Is there any daylight between Adams' comment and Washington's comments about religion in his Farewell. Doubtful.

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Richard S
on November 22, 2015 at 18:42:34 pm

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

True, only a moral and religious people would recognize that God, not Caesar, or King John, or John Locke, Has endowed us with our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which is what God intended.

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Nancy D.
on November 25, 2015 at 16:07:46 pm

Adams might have seen what Matt Ridley sees. In The Rational Optimist, 2010, in the chapter, “The Manufacture of Virtue,” Ridley describes good rule-making by traders often ruined when politicians who intervene.

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Phil Beaver
on November 25, 2015 at 16:11:11 pm

"The Pursuit of Happiness, the purpose of which is what God intended."

An opinion like that could take note that there could be a silent, second opinion--or more than one silent opinion.

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Phil Beaver

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