On True Constitutionalism
“The true English Constitution is that admirable, unique, and infallible public spirit, beyond all praise, which guides everything, preserves everything, saves everything. That which is written is nothing.” By this Joseph de Maistre (1753-1821) (Essay on the Generative Principle of Political Constitutions) meant to challenge the political confidence of the late eighteenth century which, inter alia, was marked, at least in France, by the presumption that man could create nations out of thin air, apart from experience. All that was needed was a little black liquid, as he put it. That is, the notion that “nations may be constituted with ink.”
The page may legitimately reflect only what already exists; it cannot conjure a nation into being a priori. “It is only when society finds itself already constituted, without being able to say how, that it is possible to make known, or explain, in writing, certain special articles [of said society].”
Constitutions—for de Maistre, nations— are “the work of circumstances,” and by this de Maistre means providence. The influences upon the language, customs, expectations, privileges, and general way of being (dasein) are innumerable and nigh untraceable. It was a great folly, says de Maistre, “in an age of follies” to believe that these fundamental things—broadly speaking, fundamental law— “could be written a priori, whilst they are evidently the work of a power above man.”
For de Maistre, it is the height of human pride to assume that nations and all that defines their character, customs, and boundaries can be plopped down ex nihilo at will because it is, at bottom, an “unassisted” exercise. Meaning, it has no regard for providence, for circumstance, for untraceable influence—we might say, the true invisible hand. This is especially true when such an attempt at creation supplants or replaces a nation already constituted, i.e., the case of France post-1789.
This does not mean that man lacks political agency. Indeed, that is, at times, part of the problem. But it does mean that “not only creation belongs not to man, but reformation even, belongs to him only in a secondary way.” Man’s cultivation and reformation of society is a subordinate, dependent act.” And, of course, de Maistre instructs that all human institutions, if they are to endure, must be consecrated to God because of this fact of dependency. The more religious society is, the better it is—not exactly an original insight but undeniably true, nevertheless.
That’s de Maistre’s constitutionalism. We may contrast it with that of George Lawson’s (1598-1678), found in his Politica Sacra & Civillis and his Examination of Hobbes’ Leviathan, for illuminating results when applied to the American political order. (Both de Maistre and Lawson were considering the nature of the same subject, the English constitution.)
Observe, Lawson on the nature and formation of nations and commonwealths. “A Community is a Society of persons immediately capable of a Common-wealth; or it is a Society fit to receive a Form of Publick Government.” Of what is a “community” comprised? “Families and Vicinities.” For a community (i.e., nation), often bounded by language, custom, and religion, to form a commonwealth (i.e., government), it must experience an ordering of “superiority and subjection” unto government. This is, for Lawson, the constitution. It does not create the nation or community, but rather settles the order and form of government, the way in which the civil sovereign will relate to the people (subjects). Lawson often analogizes, albeit imperfectly, to
In this way, the constitution as the relation between ruler and ruled comprises fundamental law, an historically amorphous term. Lawson writes,
“[F]undamental Laws in every State are those which concern the constitution; not fundamental, such as are made immediately to regulate the administration. The former are such as cannot be altered without taking asunder and disjoynting the very frame and form of Government; the latter may be altered, and yet the essential frame may stand. The former are the foundation of a State; the latter are but superstructions.”
Procedure or governmental administration is law of a different species. It remains nimble and potentially finite. It is not in itself wrapped up in the very existence and essence of the nation vis a vis government (commonwealth). It too is a product of circumstance, but its purpose and end are subordinate to the nation, its fundamental law, its constitution—the usually unwritten things that, if corrupted yield the dissolution of the nation itself. Procedure is to serve the fundamental law, the true constitution, the commonwealth which is a product and expression of the nation.
With all this in mind, let us turn to our own constitutional order. The federal Constitution is often namechecked as if it represents the nation qua nation, America itself, and as if an underlying constitution does not exist or predate the parchment in view. This is a powerful but dishonest rhetorical device, the result of which, in effect, is the subordination (i.e., subversion) of the nation to its own administration.
The Constitution (document) did not create a nation. It did not create a people. Nor did it create sovereignty. For sovereignty is never held in suspense, as the court in United States v. Curtiss-Wright Export Corp. (1936) put it. “Rulers come and go; governments end, and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere.” Upon the dissolution of “external sovereignty” of Britain over the states, sovereignty “immediately passed” to the union of states. In question here is the collective, external sovereignty of the union only, not the internal sovereignty reserved to the states via original royal charters.
Per de Maistre’s constitutionalism, a people, a nation did not cease to exist upon exit from crown rule. From Lawson’s perspective, we might say that political communities endured; thirteen little commonwealths. The internal, domestic policy of those colonies continued, indeed, were freed from historically irregular disruption after secession from Britain. Any structural changes therein were owed purely to exigent circumstances. Nor was fundamental law created by these occurrences. Arguably, independence was instigated by a need to secure the organically grown, then unwritten, fundamental law of British subjects which were only later more explicitly reflected in ink—a step that met much resistance.
Far from constituting a nation or fundamental law, what the Constitution (document) did was supply a then new set of administrative, practical procedures for a domestic empire. Alexander Hamilton (Federalist No. 1) recognized this fact plainly. The American people evidently preexist the Constitution. Their deliberation on the form of government for the union represents an exertion of sovereignty which presupposes a community (nation). Lawson speaks to this:
“If the Government be dissolved, and the Community yet remains united, the People may make use of such an Assembly as a Parliament, to alter the former Government, and constitute a new; but this they cannot do as a Parliament, but considered under another Notion, as an immediate Representative of a Community, not of a Common-wealth. And thus considered, the Assembly may constitute a Government, which as a Parliament cannot do, which always presupposing the Constitution, as such, can act only in and for the administration.”
(Notice that the same principle is present in the Declaration of Independence.) Lawson does not speak of fundamental law or nationhood but of administration and government. And, in particular, Hamilton was considering how the “empire” might be governed to avoid “partial confederacies,” but not to the negation of the preexistent state-level domestic sovereignty. The Constitution of 1787 was always a mechanism of federal administration, akin in form to international treaties (see Max Edling, Perfecting the Union). Therein is lies its purpose and function, always subordinate to its stated and unstated ends, viz., the collective safety and welfare of the states which necessarily included the insulation and preservation of their domestic sovereignty as distinct political communities organically grown in British soil.
Even the more aspirational John Jay (Federalist No. 2), whilst highlighting the relative homogeneity of the colonies turned states, did not suggest that the Constitution (document) had a priori created a nation of whatever scope. And when emphasizing shared language, heritage, religion, customs, and “principles of government,” such sameness was attributed to providence not the intentions of men, and especially not little black liquid. De Maistre may have (rightly) despised Thomas Paine, but America’s constitution properly perceived and in this way did not violate his constitutionalism.
A form of government cannot constitute a people, a nation. To claim otherwise would be circular, for a form of government must preserve the safety, preservation, and happiness of a people. What is the point of all this? It is simply this: however constitutionalism is conceived, it cannot justly stand for blind adherence to administration, forms, and procedure to the detriment of the people, nation, and commonwealth. Whoever insists otherwise is not honest, sane, or learned. Nor should petty tyrants be permitted to equate a form of government, an apparatus of imperial administration, with the nation or people itself. The Left rarely attempts “constitutional” appeals anymore, except when certain “due process” amendments prove convenient and convincing. The Right—loosely used—still employs “constitutionalism” in a disingenuous or ignorant way to manipulate one of the central virtues of right wing Americans: filial piety. In both cases, the flouting of tradition, custom, and norms by the Left, and the abuse of categories on the Right, the nation suffers under a barrage of seemingly unassailable rhetorical flare—they valiantly hold the line, they say, but their hands are tied by “principle” and procedure. But it is just that, seemingly unassailable. Remember, nations are not “constituted with ink,” and a little black liquid must not be allowed to oppress the same.
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