On Teleological Constitutionalism
Peruse the online consternation over Christian nationalism for long enough and you will begin to gather a central theme, a rather juvenile contention. That is, the question of means. The evangelical kneejerk upon encountering once conventional claims that, say, blasphemy and idolatry can in principle be punished, is to summarily dismiss these ends because the only means to said ends they can imagine terrify them. The effect is that dispassionate, genuine interrogation of the validity of the ends in view—the actual conversation—is conveniently (for the average evangelical) sidestepped since they cannot solve for the means problem. Much of the evangelical kneejerk reaction to the Christian nationalism heuristic is owed to their intellectual conditioning. American evangelicals are, on average, as catechized in liberalism as anyone else when it comes to the purpose, ends, and especially operation of government. Procedure is paramount in this paradigm. Ends are not just secondary but usually irrelevant excepting for a narrow range of “ends” (loosely employed this time) necessary for the procedure to at least theoretically run smoothly. Liberalism presents government primarily as an arbiter of disagreement, a conflict mitigation mechanism. Too much emphasis on ends instigates the conflict liberalism fears, the source of all ills the triumph over which the festival of reason celebrates. In a very real sense, then, the procedure is the morality, as Sarah Isgur once put it on the Advisory Opinions podcast.
Consternation in the liberal mind is produced by the reversal of the inquiry, something Christian nationalism, as well as parallel Catholic debates, has done well. Charles Haywood’s Foundationalist Manifesto threw the typical evangelical for a loop for the same reason. Haywood’s emphasis on encouragement of societal virtue and governance according to true human anthropology, preference for Christianity, the priority of social cohesion and tranquility, and so on, dependent on a pre-modern conception of sovereignty, all this sits outside of the liberal paradigm. It is substantive not procedural and therefore, to the uninitiated, out of governmental bounds. Haywood’s qualifier that government will be limited in ends but unlimited in means also strikes fear in the heart of normie-cons, libertarians, and “classical” liberals alike. This because all three operate under a, perhaps, subconscious assumption that government has limited means to accomplish unlimited ends, mainly because the ends themselves, other than some modicum of personal security—a Millian harm principle ethic—are never considered.
Prioritizing ends over means in the first instance when investigating the optimal socio-political form in a given scenario is, in truth, both a classical attitude and as American as apple pie. Procedure and form—shunning of the matter—didn’t catch on until much more recently, not coincidentally right around the time the prospect of managerialist social engineering promised salvation from conflict. ‘Twas not always so.
John Adams, in Thoughts on Government (1776), identified “happiness” as the “central goal of government.”
“We ought to consider what is the end of government, before we determine which is the best form. Upon this point all speculative politicians will agree, that the happiness of society is the end of government, as all Divines and moral Philosophers will agree that the happiness of the individual is the end of man. From this principle it will follow, that the form of government, which communicates ease, comfort, security, or in one word happiness to the greatest number of persons, and in the greatest degree, is the best.”
Samuel Adams similarly defined political liberty (following Montesquieu) as safety and ease.
Agnosticism to form of government in the first analysis is entirely conventional in what Adams called “the Science of human Happiness,” that is, politics.
This is not to imply that form—whether a government be democratic, aristocratic, monarchical, or mixed—is irrelevant or of no concern.
Indeed, the form of government most conducive to the happiness of the people, which is found in virtue, is best, but this must be cognizant of the circumstance and condition of the people, the nation.
Adams concludes, on this basis, that “there is no good Government but what is Republican,” which he defines as “an Empire of Laws and not of Men,” a phrase tossed about today almost as recklessly and absent true reflection as “rule of law” or “self-government.”
Per James Harrington (Oceana), an empire of laws and not of men is none other than a government oriented to the common good (i.e., “common right or interest”) and controlled by prudence—the “ancient prudence, first discovered unto mankind by God himself, in the fabrick [sic] of the Common-wealth of Israel.” By contrast, an empire of men, and not of laws, is one directed by private interest (tyranny or oligarchy). We could further distinguish the two antithetical types of government as that of reason versus that of passion, the former being obviously preferable.
Hence, Adams can say “that particular Arrangement, and Combination of the Powers of Society, which is best calculated to Secure an exact and impartial Execution of the Laws, is the best republic.” Notice that Adams is employing the republican label abstractly here and apart from a determined form, so too Harrington. The ends are in view and properly designated republican prior to the means of orchestration such that Adams can rightly call the British constitutional monarchy of the time a “republic.” Why and how? Because “[o]f Republics there is an infinite Variety, because the Arrangements of the Powers of Society, are capable of innumerable Diversifications.”
The governmental form or structure is then a matter of prudence, circumstance, and even preference. Adams concludes that a bicameral legislature is most effective at making laws for five reasons, all of which are prudential and predictive, which is to say not absolute, but rather a sort of best practice conditioned by British experience and American exigencies— “Indeed the whole of this Plan is callculated [sic] for the present Emergency.” The same goes for his explanation of a tripartite division of governmental labor.
And, of course, the success of the structure depends on virtue and morality, which, in turn, Adams thought would be encouraged by the structure itself:
“Such a Constitution as this naturally and necessarily introduces universal Knowledge among the People, and inspires them, with a conscious Dignity, becoming Freemen; good Humour, good Manners and good Morals. Virtue, Honour, and Civility become fashionable. That Elevation of Sentiment, which is mechannichally introduced by such a Government, makes the common People bold, brave and enterprizing. That Ambition which is inspired by it into every Rank and order of Men, makes them industrious, sober and frugal. In such a Government, you will find some Elegance perhaps, but more Solidity. Some Politeness, but more Civility. Some Pleasure but more Business.”
We glean from this foray into Adams that “republicanism” is less a concrete form in the first instance than it is a mood of government, an ambition for non-arbitrary rule accountable, in some way, to the promulgation of law.
A constitutional monarchy of the British variety was sufficiently republican to Adams; so too was the mixed regime, the Aristotelian ideal, erected in America. By definition, anything that is not purely one of the three forms of government identified above is some kind of mixture. Just because a government is mixed in form does not, however, mean it is a republic, and certainly a corruption of the forms—tyranny, oligarchy, anarchy—precludes any claim to the republican mood. The only true limitation on form is the non-absolutization of any of the three pure forms available.
But the presence of the ideal mixture, properly ordered and non-arbitrary, does not preclude republicanism, and neither does a monarchical element, contrary to (usually uninterrogated) popular belief. For that matter, neither does the ideal mixture guarantee republicanism as such.
As I have pointed out before, that some observers conceived of America in 1787 as establishing the most powerful monarchy in the western world, albeit under an alternate title, indicates the monarchical element in our constitutional mixture. The simple fact that the president possesses and exercises vigorously a veto power, something not employed in Britain since the early eighteenth century, and that the head of government and head of state are united in one person, further demonstrates the monarchical element—a neo-unitary executive theory is not required for this conclusion.
In any event, though the republican mood is not inattentive to form, insofar as certain forms are theoretically more conducive to republican aspirations, it is agnostic to form in the first instance. This is a roundabout way of saying that our founders, like Adams, were teleological rather than structural in their approach to government.
We see this even in the Declaration of Independence: “whenever any Form of Government becomes destructive” to the proper ends of government it may be justifiably altered insofar as those doing the altering will lay a new (or revived) form’s “foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness,” that is, recalling Samuel Adams, true political liberty. Remember too that per the other Adams, the possible forms available are various even inside the mixed regime ideal since the exact distribution of government labor is seemingly endless.
To be clear, the violation of “long established” governmental form and function itself may constitute the justified alteration just outlined. The Declaration makes this much clear via its list of grievances but not to the neglect or negation of the teleological, or an ends-based analysis. The first grievance, in particular, cites King George’s refusal to grant assent to laws “most wholesome and necessary for the public good,” a decidedly ends-based complaint. It was the (dishonest) conditioning of the assent sought on the relinquishment of legislative representation by the home government (i.e., the second grievance listed) that touched on the governmental form, but not without the teleological purpose in view.
This because the form of government to which the colonists were accustomed was the vehicle by which the higher ends of government could be met such that when the latter was frustrated so was the former. The point of all this is to impress upon the reader a robust conception of government and its service to human (ontological and teleological) socio-political goals by which its existence is justified.
It is not the mere violation of procedure that should exercise us, even procedure long established and customarily expected. The procedure is not the morality, as some right-liberals may insist. Procedure is the vehicle. When the vehicle is exhausted, proven faulty or corrupted vis a vis the ends of society, its utility has thereby expired. On this basis can grievance be lodged and change demanded. Of course, the unilateral alteration of form itself can constitute an encroachment on the safety and happiness of a polity. Such alteration should not be taken lightly. But form or procedure-based analysis should not be disconnected from a teleological constitutional vision that informs the proper purpose and end of government itself, a qualification necessary if government is to remain healthily nimble and responsive whilst maintaining stability and endurance. The same considerations must condition constitutional interpretation as well. And, ultimately, when we consider the contours of ideal regimes—such inquiries must, admittedly, traffic in some degree of abstraction—to shed light on present ills and future possibilities, we must rightly order our considerations hierarchically. That is, with agnosticism to form, not ends, an order ostensible conservatives so often get backward. Non-arbitrary government is immanently desirable. That’s not the hard part. The republican mood can be assumed. What’s tricky—even as we pretend its self-evident and fixed—is the mode and means of achievement, which are necessarily conditioned by contingencies of history: time, place, and people.
Of late, there is much ink spilled over models of constitutionalism, legal and political. I’ve done some of the spilling myself. But any such model that is not teleologically oriented—something prior, still predominant models cannot offer—has no business governing man or society. Phrases like the common good have reentered the American lexicon, if on the fringes, a welcome change highlighting the proper end of law and policy. But the liberal mind wonders at how this limited albeit conceptually robust end can be regulated or controlled such that power can never become overbearing or unjust. It is every liberal’s chief fear for which they are willing to disallow true governance at all.
Of course, non-arbitrary, unconsolidated government, republicanism, offers some protections. No plan is foolproof, and no safety valves can be introduced or upheld to the detriment of governance itself. Liberals would rather the people lapse into endorsed licentiousness than risk an exertion of moral governmental power to encourage virtue. Some of this posture is owed to self-induced epistemological doubt, which, in turn, is partially a result of attempts at amoral governments over the past hundred years. Moral neutrality is obviously impossible and undesirable. Moral judgments are made all the time at every level of society. A good constitutional order recognizes this fact and directs men rather than pacifies or patronizes them. A good constitutional order considers first these higher moral ends and true anthropology before it assesses the means of attainment. A good constitutional order is fundamentally, first and foremost, teleological, and therein the means may be tailored to said ends but their utility expires as soon as they no longer prove conducive thereto. This is both real and realist thinking about governmental power contra the utopian, ideological, and fundamentally inhuman counterfeit American’s—especially conservative Christian Americans—have been force-fed for generations. It’s time to trade milk for solid food.
To end with a thought exercise, ask yourself if you can make sense of, if you possess conceptual categories for, this reasoning from Samuel Adams and the Massachusetts General Court. In August 1770, they complained that the governor had unilaterally moved the location of the legislative gathering from Boston, its historical location, to Cambridge. Boston was convenient and populous. Cambridge was more remote and, therefore, inconvenient for regular assembly. But the question was not whether the governor possessed the power to perform such a maneuver.
“For admitting the Power to be in the Governor to hold the Court in any other place when the publick Good requires it; yet, it by no means follows that he has a Right to call it at any other place, when it is to the manifest Injury & Detriment of the Publick.”
The test of action was “a Standard common to all, we mean the publick Good.” For Adams and his compatriots, the analysis was simple. The governor could alter the legislature’s location at will, but only if it was conducive to the common or public good. In this case it was not and, therefore, he could not. Again, this is simple but it thwarts contemporary expectations for political power metrics. It is, in a word, an ends-based analysis that Adams performed, not a strictly procedural one. Such an orientation, in the end, protects more against arbitrary governance than does mechanical, formulaic fealty.
Image Credit: Signers of the Constitution, Thomas Pritchard Rossiter (1817-1871). c. 1866. Oil on Canvas
