May 7, 2016


Orestes Brownson and the Unwritten Foundation of American Constitutionalism (Peter Augustine Lawler and Richard M. Reinsch II, Spring 2016, Modern Age)

In his 1865 book, The American Republic, Brownson rearticulates the principles of American constitutionalism. The Civil War and its horrific consequences showed that America's statesmen of his time had not grasped the full truth of the American Founding. To comprehend the guarantees of American constitutionalism requires the incorporation of its unwritten constitution as a historical and philosophical articulation of the meaning of the written constitutional order. As Brownson writes, "There must be for every state or nation a constitution anterior to the constitution which the nation gives itself, and from which the one it gives itself derives all its vitality and legal force." The constitution of the state is given to a people who constitute a republic in a particular territory or geographically delimited place in the world.

This unwritten constitution is found in a people's political culture, mores, customs, disposition, and peculiar talents. The constitution of the government is built on this assemblage of order and is forever connected to it. Thus, the authoritative law of a particular country can't be viewed outside the context of the unwritten constitution. No government built to stand the test of time can be a merely willful construction that defies the historical, spiritual, and cultural materials that have been given to a people.

Notice that the constitution that emerges from Lockean contract theory is consented to by self-interested individuals, and it exists to secure their universal natural rights. Governments are monolithic in their origin, form, and purpose, because individuals are monolithic in their origin, form, and purposes as being uprooted from their particular inheritances and even their biological differentiation. This constitution devised solely in the interest of the rights of individuals is based on the unrealistic abstraction of unrelated autonomous individuals, beings divorced from the privileges and responsibilities of being parents, creatures, and even citizens. Lockean thought isn't political enough to be the foundation of government, and it isn't relational enough to properly articulate the limits of governments with the family or organized religion in mind.

It is true that Locke's social contract teaching was for many Founders the way they justified their independence from Great Britain and the formation of the American union. It is a fact, however, tempered by the statesmanlike compromises they made to secure political unity. The content of those compromises made, from Brownson's view, what they built better than what they knew through their theory, insofar as they took into account the political, religious, familial, and other relational dimensions of the human persons that are slighted by Locke's individualism. The process of political deliberation gave our country's foundation particular or providential content that fleshed out Locke's otherwise abstract or denatured theory.

Brownson affirms the equality of human persons as a fact, but one that entered the world through Christian revelation and was later affirmed as self-evident by philosophers. Equality, as Lincoln says, is our proposition that inspires our devotion. It was brought to America, as Tocqueville says, by our Christian Puritans. That self-evidence, Brownson contends, is undermined by the pure Lockean dimension of the Declaration, where individual sovereignty becomes the foundation of government. Every man, as Locke says, has property in his own person, and, for Brownson, that assertion of absolute self-ownership is, in effect, "political atheism." But, with the providential constitution in mind, the Declaration really does become about the equality of all men by nature under God:

under the law of nature, all men are equal, or have equal rights as men, one man has and can have in himself no right to govern another; and as man is never absolutely his own, but always and everywhere belongs to his Creator, it is clear that no government originating in humanity alone can be a legitimate government. Every such government is founded on the assumption that man is God, which is a great mistake--is, in fact, the fundamental sophism which underlies every error and sin.

Brownson's deep-seated rejection of the implicit atheism of the Lockean effort to transform all of human life in terms of contract and consent is based on his observation that such misguided liberationism or individualistic "secession" inevitably led to the interlocking vices of modern political life: anarchism and consolidation. Social contract thought lacks an external standard higher than man's will that could limit, shape, and condition it. As such, the highest being is man, who would self-create government by consent as a protection against death and to secure property rights.

Brownson contends that the transformational project of self-sovereignty or political atheism as laid out by Thomas Hobbes, John Locke, and Jean Jacques Rousseau aims, with a misguided conception of human liberty, to displace the complex relationship between the nature of the human person and political order with a world full of self-consciously autonomous individuals. The goal is the scientific or enlightened deconstruction of the free and relational human person in order to reconstruct political order as consciously utilitarian or representing the truth about free and contracting individuals to themselves.

Here's how Brownson describes the pure Lockean doctrine concerning the institution of government among men: "The state is held to be a voluntary association of individuals. Individuals create civil society, and may uncreate it when they judge advisable." Government depends simply on individual will, and not at all on the relational virtues of citizens, beginning, as Brownson says, with the indispensable virtue of loyalty. That means, for example, that the "secessionism" of the Confederates was a necessary consequence of Lockeanism. And that's why Brownson claimed that the Confederates couldn't be charged with treason or civic disloyalty. They may have ultimately misinterpreted the Constitution, but in a way that corresponded to the theory prevalent among its framers.

Brownson's opposition to this theory emerged from his deep reading of the Western political tradition that had articulated the naturalness of political authority, our inbuilt need for society, and with Christian revelation, man's relational capacity and his end in God, which gives his life a purpose beyond government, forever circumscribing its powers.

Brownson contends that the deficiencies in modern political theory are evident in both liberalism and socialism insofar as they reduce man's social and political existence to abstract doctrines of popular sovereignty or egalitarianism without asking what is true and false in both of these conceptions and fully reckoning with the complex requirements necessary for free societies to endure. Brownson criticizes a Continental European liberalism that insisted upon the natural rights of the sovereign individual possessed separately apart from any authoritative preliberal traditions. The problem with this liberalism, Brownson thinks, is its constricted belief that the individual and the state are the only two political realities of modern society needed for a free and decent political order.

The individual armed with a bevy of rights before the state is likely to be swallowed, Brownson observes, by a collectivism made possible by the elimination of various types and scales of communities that stand between the individual and that state. There would, it follows, be no context and content for being a truthfully free and relational person. Only if the person is understood to be more than a consenting individual can the limits to government be more than "negative" or empty. To be sustainable, they must correspond to the whole truth about who we are. Brownson, for this reason, wrote of humanitarian liberals as "abolitionists" about the business of abolishing the real human distinctions that make up the world of particular persons in favor of the leveling of humanity.

The unwritten or providential constitution replaces the social contract in order to ground the actual Constitution by limiting the range of potentialities it can develop and manifest. These limits also provide reasons for affirmation of an architecture of devotion to a country's actual constitution, its way of life. This particular or political way of thinking recaptures something of the Greek polis, but with the Christian addition that each of us is more than a citizen through our relational devotion as creatures to the church. The American republic is also to be distinguished from the tribe in its devotion to a common good that's much more than collective selfishness. The American idea of the providential constitution places our particular country under the universal yet still relational and personal God.
Thus, America's written Constitution of 1787 has to be understood by the unwritten order of its common law heritage, the colonists' practice of self-government, religious pluralism, the colonies as separate and then unified political actors in war, largely democratic emigration patterns, and colonial resistance to and gained independence from an empire that had abused historic common law rights and its own tradition of limited government. Our framers built as statesmen, and as such they drew from all the sources that history, philosophy, political precedent, religion, and the rest of our civilized tradition had given them.

In the absence of God there is neither an imperative for freedom nor a necessity for controlling same--republican liberty can not be well defended.  

Posted by at May 7, 2016 10:25 AM