“Man is a political animal.” This famous affirmation means that eventually, to be what he is, man needed to set up, by his own ingenuity, an interrelated order in which he could bring about, through his own persuasive actions, what he was intended to be. When persuasion was lacking, he sometimes needed coercion. Likewise, since he was free, he could establish regimes that led him away from what he was.
A “constitution” reflected the virtues of the citizens, or lack thereof. Different constitutions fostered the definition of virtue that a particular people practiced. The issue of a “best” constitution arose from this experience of different practical constitutions.
Plato earlier said that words, especially written words, were fleeting. Words could be understood in many ways. Words meant something, but written words were more difficult to pin down. Effort to “preserve” a constitution runs into this difficulty with written words.
A written constitution and an unwritten constitution do not differ in essence. Unwritten constitutions were those in which a people respected earlier decisions, legislation, and decrees. They followed what was set down insofar as what went before was understood.
The American Constitution is unique, a written constitution subject to all the Platonic worries. Though the colonists knew and practiced basic English (unwritten and written) law, their break with England produced an innovation, a written constitution. It put itself between the daily affairs of government and the philosophic principles according to which that government should come to its ruling decisions and laws.
The writers of the Constitution forged a framework of government. It was designed to prevent mis-rule and tyranny as well as to make orderly rule on a wide scale possible. While not neglecting foreign issues, it was primarily designed to prevent internal faction and tyranny. It was designed to define and uphold what was just.
Checks and balances, federalism, enumerated and separation of powers were deliberate. They made things slower in order that rule might be wiser. They were articles of prudence. A law that the people were to obey had to be one duly formulated and passed, step by step, according to the constitution.
Scene at the Signing of the Constitution of the United States by H.C. Christy (1940)
A constitution is in essence a promise. It is designed to make the future orderly and just. It is a contract between generations. A constitution cannot work if its definitions and wordings are not clear and intelligible, if they keep changing. Words refer to definite things and ideas. But their original intelligibility is what binds. The theory of a “living constitution” was devised for the most part to avoid the wording of the constitution to achieve something either unknown to it or contradictory to it.
In this context, the controversy whether America was a “modern” founding or an extension of classical and medieval ideas is a crucial one. If it is a modern founding, it has its origins in Hobbes, Locke, and Hume, among others. It is a voluntarist contract whose roots are in the individual’s right to all things for his security and prosperity. If it is a classical or medieval founding, it has a sense of common good and natural or transcendent law. It is aware that government is limited not just by itself or a constitution but by what it is.
The American written constitution was not designed to prevent rule for the good of its citizens. Rather, it was designed to let them alone as much as possible. A few things were specifically set down that government could do. The best thing it could do was to let everyone’s intelligence, incentive, and liberty operate. There were things the government could not do, even if it followed the letter of the constitution. This is why the tradition of natural law has always held any constitution itself to be subject to a higher law.
In the American system, two or three levels of government existed. At all levels the famous principle “that government governs best which governs least” was good advice. The Federal Constitution was one of enumerated powers. The colonists, after the Articles of Confederation, saw the dangers of a weak government. But they did not forget their British experience of a government that governed too much.
Within the mechanism of rule, some designated officials had to be able to pronounce and act when the constitution was being violated, when some governmental instrumentality was not acting properly. Some things, the important ones, were to be left to the people. This whole system was based on the integrity of subsequent officials and, yes, on the stability of words to convey what was and was not “according to the constitution.”
The great shock of the recent Roberts’ decision on Obamacare thus was that the words of the constitution do not bind that official most responsible to uphold the constitution. Hobbes, I think, would approve this decision.
