The Left Sees It… Why Can’t We
A controversial Hawaii Supreme Court ruling last week that, in essence, the constitution, specifically the second amendment, is subservient to local custom. That is, the “spirit of Aloha,” described as the local and historic “life force,” predates and superseded a “a free-wheeling right to carry guns in public [that] degrades other constitutional rights.” Meaning that the organizing constitutional principle that dictates the hierarchy of rights expression and enforcement is something located outside of text and precedent. In a conflict of laws scenario, local and state ways of life, at least as the court understands them, predominate and condition the reception and application of law.
In other words, the constitution is not an abstraction and does not exist in a vacuum.
“Article I, section 17 of the Hawaii Constitution mirrors the Second Amendment to the United States Constitution,” decision reads. “We read those words differently than the current United States Supreme Court. We hold that in Hawaii there is no state constitutional right to carry a firearm in public.”
“The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” And, “The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others.”
Best of all, “As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution. ‘The thing about the old days, they the old days.’”
The citation of The Wire was, admittedly, cringe and indulgent—not becoming of a high court—but do not let the obvious invitation for decidedly deserved mockery overshadow the true but unintentional insight imbedded in the opinion.
The passage in view is amazing in every sense of the word. But conservatives will too quickly dismiss it as crazy. Defiance of The Constitution is ill-received in our circles. But such knee-jerk reactions only emphasize the anemic character of “conservative” jurisprudence as it stands.
The Hawaii opinion belongs in the hall of fame in which Justice John Paul Stevens’ Van Orden v. Perry (2005) dissent, which I cite often, also resides. That is, as a stinging rebuke of ahistorical, positivist constitutionalism that has enjoyed purchase on the right for too long. These critiques from Hawaii and Van Orden do not share our moral priors, but they should be embraced and internalized. There lies the path to true constitutionalism, one that recognizes itself as a sub-altern field of political life and thereby assumes and integrates the ethos and ethnos of the governed. Indeed, it is, in a sense, subservient to it.
Here we see our enemies getting to the crux of the matter in open court, literally: a battle between ways of life, irreconcilable ways of life, perhaps. Maybe more important right now given the advent of reinvigorated American federalism (see Florida and Texas) is that Hawaii’s court has demonstrated a willingness to defy federal constitutional interpretation.
The harder pill for conservatives to swallow: mindless appeals to “The Founders” will not satisfy, and not just the justices of a liberal court. “[T]he founding era’s culture, realities, laws, and understanding of the Constitution.” Now, this is hyperbolic. Such denial of the endurance of at least vestiges of the eighteenth century is anachronistic and blind. Veneration for that era and its people, our people, is also warranted—needed, desperately. At the same time, the transference of the eighteenth to the twenty-first century wholesale is the stuff of graduate seminars only.
We should venerate the founders, and their ancestors, indeed, militantly. Filial piety is a virtue. And yet, for our own day, we should express that veneration in thinking like the founders, not simply as or what the founders did. The best way to honor our forbears is to be good statesmen in pursuit of the good of our nation and inheritance which requires more than wooden replication. We should perpetuate the western Christian, Protestant tradition accommodated and applied, with prudence, to our own day. In other words, we should play the cards we are dealt. Again, we should be statesmen, drawing on the same inheritance our founders did with the benefit of their prior American appropriation of the same in view.
Michael Lind was extreme and overly-provocative when he wrote, “Forget the Founding Fathers,” at Compact. It lacked the requisite filial piety mentioned already, thereby detaching us from heritage and appropriate veneration, but there was something, nevertheless true imbedded therein. (Aaron Renn is right in that the right should be forward looking.) The piece lacked virtue. And, we should add, there a reason that “The cult of the American founding has no parallels in other English-speaking democracies.” For one, we aren’t a “democracy” and should not be. But we will ignore that technicality for now. The reason this “cult” endures is owed, in part, to the unique circumstances of our beginning, but likely more so to propaganda surrounding the emergence of the second republic (as Lind would put it), an attempt to unify the country through common, national heritage and heroes. This was an admirable goal but came at the expense of the original structure and localized heritage of our country. But that is a can of worms for another time. The emphasis on a limited set of founders is the result of late twentieth century scholarship of the third and fourth republics.
Let us get back to the question of ethos, of the unwritten constitution, of custom and peoplehood that the Hawaii court raised.
Montesquieu recognized in his Spirit of Laws that positive laws, human laws, “should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives,” including their professions and way of life. Moreover, laws should correspond to “the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.” For laws govern human inhabitants of the earth and all that such beings imply, not just their material existence, but their spiritual sense as well. This is another and longer way of saying that positive laws must account for and, indeed, support the order of nature but also the unwritten law implied in and expressed by culture, by a people which predate the form of government. The character and virtue of said people is nevertheless conducive to—even demands—certain forms of government, of organizing and adjudicating life together.
Constitutional hermeneutics—approach to the text—should be filled with these things: the customs, traditions, and convictions of the nation. This, in turn, requires some definition of or parameters for the “nation.” As Joseph de Maistre taught, constitutions do not spring inorganically out of the ether because nations don’t either. Without that prerequisite understanding of the nation, its people, traditions, and culture, its ethos, constitutional governance is impossible. Only arbitrary fiat will work. The latter does not require background assumptions or continuity. Moreover, when constitutional (text) provisions are not conditioned interpretively by social form, they are subject to contrary and contradictory use to the detriment of the intended subjects. Foreign cultural priors can be inserted at will. In this sense, culture is often downstream of law. This is, of course, what the Hawaii supreme court is doing. The “spirit of Aloha” has never been part of American heritage. It is an anachronistic addition with clear ulterior motives. Nevertheless, and again, the maneuver is instructive. Imagine red state judges who are willing to assert the “spirit of Protestantism,” for example over and against federal interpretation (and incorporation) of the First Amendment. More basically, imagine red state judges who, citing the “spirit of federalism,” possess the resolve to maintain basic state sovereignty in the face of federal violation of the same. Imagine red state judges who appeal to the “spirit of American heritage” to protect historic statues from vandalism. Imagine red state judges who stand for the “spirit of Christian morality” which undergirds American history and the socio-political order in the face of satanic monuments and sacramental infanticide and ritual castration.
Then we’d really get somewhere. And the move would be legitimate. All constitutions require moral readings and socio-political and cultural priors to provide them with texture and actualization, and, indeed, to check abusive application of the same. Would that “conservative” judges had the same assertiveness as their liberal counterparts. But again, first we must decide who we are. This is why the “nation” question remains essential. If America has no past—or a past subject to infinite reinterpretation—and no people, no heritage, no central culture and especially no central cult, but is merely an amalgamation of economic units, then it will remain nothing but a corpse, and it doesn’t really matter how we parse a parchment.
Image Credit: Washington as Statesman at the Constitutional Convention, Junius Brutus Stearns, oil on canvas, 1856.