From Edmund Burke's Reflections on the Revolution in France:
You will observe, that from Magna Charta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specifically belonging to the people of this kingdom without any reference whatever to any more general or prior right. By this means our constitution preserves an unity so great a diversity of its parts. We have an inheritable crown; an inheritable peerage; and an house of commons and a people inheriting privileges, franchises, and liberties, from a long line of ancestors.
This policy appears top me to be the result of profound reflection; or rather the happy effect of following nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know, that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without an all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims, are locked fast as in a sort of family settlement; grasped in a kind of mortmain for ever. By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges, in the same manner in which we transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of Providence, are handed down, to us and from us, in the same course and order.
Each generation only has so long on this earth. People come and go. Officials of the government will only be in power for so long and even Sir Humphrey's time in office will eventually come to a close. What remain are institutions. Institutions transcend the actions of single human beings and survive through the ages as new people come in to fill the roles that are left as others leave. As the great Bard once wrote, “all the world's a stage/ and all the men and women merely players”; what matters to the people around us is less who we are than what we do and what role we decide to fill in society. Institutions provide the roles that people decide to play in their relation to others in society at large, and thus they help determine the course of human history.
The institutions that bind us are not creations of the human intellect. It may certainly be the case that they are the product of human action, but what single human mind designed the British monarchy? None and none could have. The British monarchy, like so many other institutions, is a product of a long line of people acting within it in reaction to a large variety of events and problems. Even the American Constitution was not written with the ideas of one human person, but was designed over the course of months in a gathering of many of the most talented lawyers in America at that time. More importantly, it was largely constituted by general rules of conduct that were already accepted as laws, important concepts like representative government and due process had centuries of previous history before being incorporated into the Constitution.
Only the worst look at society as a carte blanche upon which they can create their own vision of society. And only those who have drunken deep from the waters of the fatal conceit that man's mind can actually truly comprehend all the ties that hold society together think that it is possible for there even to be a coherent vision of society to write upon that blank check. The only sound political perspective, especially for actual governance, is one that consciously accepts the important of the institutions that we have inherited as the important engines of human affairs and that lets those institutions, with certainly marginal changes around the edges, set the course of state.
Some Remarks About Constitutional Conservatives...
If there is one benefit that the Trump Administration has brought to the United States, it has been the nomination of Neil Gorsuch to fill the late Antonin Scalia’s seat on the Supreme Court. For better and for worse, Mr. Gorsuch’s nomination has provided the opportunity for commentators to discuss the late Supreme-Court justice’s judicial philosophy of originalism. Over at Vox, Sean Illing has argued that Scalia’s originalism was less a purely judicial philosophy and more a wider political ideology:
Mr. Illing goes on to quote Barack Obama’s Audacity of Hope’s discussion of this aspect of legal philosophy:
I must admit that I find it difficult to charitably reproduce the argument that, because there was disagreement when a law was written, that something was agreed to when the ink was put to paper, that the written law therefore does not contain some resolution or synthesis of that disagreement.
As a Catholic, I am reminded here of canon law. Canon law is the internal ecclesiastical law that governs the Roman Catholic Church, derived from Roman law, and it is the longest continually legal system in all of Western civilization. Canon law states (749§2) that: “The college of bishops also possesses infallibility in teaching when the bishops gathered together in an ecumenical council exercise the magisterium as teachers and judges of faith and morals who declare for the universal Church that a doctrine of faith or morals is to be held definitively…” However, anybody who has a bit of knowledge about the Catholic Church knows that ecumenical councils, although they promulgated written dogma, scarcely ever settled conflict in the generation in which those debates raged. One need only examine how long, say, the Arian controversy lasted after the Council of Nicaea lasted to see that written dogmas frequently failed to content partisans at odds with those controversies.
However, no canon lawyer would argue that, because there was disagreement about the Arian controversy after the Council of Nicaea, that the Nicaean creed is a “living creed” that may be adapted to the arbitrary opinions of subsequent bishops. Instead, the Nicaean creed said something. Even if contemporary Arians might not have been persuaded, it was the responsibility of future canon lawyers and theologians to exactly figure out the meaning of those words and enforce them. Fast forwarding to the 20th century, for this reason, the Second Vatican Council won’t be fully appreciated until long after the death of its partisans so that canon-law jurists may impartially read and interpret the documents that Vatican II produced without having to worry about the debates that generated those documents (and which those documents resolve) still being a matter of living memory.
When one takes a historical view of legal systems, that people disagree with what a law says within the generation in which that law was put to ink is to be expected. That disagreement certainly does not imply that the written law has no meaning, it only means that jurists of subsequent generations need to be cautious about how they interpret that law. Partisans may disagree about what words say, but that does not absolve jurists of their duty to pin down what the written words of law mean and imply. Ultimately, I don’t think that disagreement does not give warrant to the introduction of a jurists’ arbitrary views into those words.
In another article at Vox, Ezra Klein has argued that Mr. Gorsuch is “is an extremely conservative judge at a moment when an extremely conservative judge makes a mockery of the popular will.” However, the popular will is not an element of law and should have no place in a jurists’ reading of the law. Popular will has other places to express itself in the political system, from voluntary associations to the election of Congress. Indeed, that the House of Representatives, which is probably that portion of the federal government that best reflects the popular will of the American people, is overwhelmingly Republican is evidence that the popular will desire a Supreme-Court nominee who, in Mr. Klein reckoning, is “extremely conservative”! Of course, we needn’t forget that Mr. Klein had written, back in October, that “Hillary Clinton crushed Donald Trump in the most effective series of debate performances in modern political history.” So maybe Mr. Klein should be taking a hiatus about talking about the popular will of the American people during the Trump Administration.
As far as I can see, constitutional conservatives might be the closest things to true liberals in American politics today and best vehicle for advancing the general welfare. They understand the rule of law and the primacy of the abstract. They are well-read in the intellectual fonts that influenced the American Founders, including John Locke, Montesquieu, David Hume, Adam Smith, and Edmund Burke, and whose wisdom still provides the intellectual foundation for any free society today. I have once been skeptically of many of their views on the powers of the presidency, which at time seem quasi-monarchical, but I have since been convinced by Eric Nelson’s book, The Royalist Revolution, that those views are in-line with the Founders’ ideas for the executive branch.
Those intellectual fonts, as well as the American Founders, had a confidence that, once broken free from monarchical privilege, that the wisdom of common people could secure the felicity of their society. However, they also understood that liberty cannot exist outside of the rule of law. Thankfully, breaking free of monarchical privilege does not imply the breaking of the rule of law, and constitutional conservatives are aware of that. In a world where only the dose makes the poison, constitutional conservatives have a proper skepticism of experts granted privilege that has turned into an excessive populism in the Western world today.
Posted by Harrison Searles on 03/22/2017 at 05:28 PM in Commentary, Conservatism, Current Affairs, Law, Liberalism | Permalink | Comments (0)
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