LIBERTY IS NOT NECESSARY, JUST WHAT WE AGREE ON:

The founders forged a complex republic, one that recognized a sphere of autonomy for states and local governments, as well as a sphere of national power and prerogative. In such a way, the Constitution of 1787 was a work of practical genius, rooting the political institutions of the written constitution in the preexisting social reality of the unwritten constitution.

Essential to this founding genius was the recognition of the relational aspect of American life in the structures the Founders built or, rather, as the authors point out, preserved. The Constitution did not abolish the states. It preserved them in the constitution. The Constitution did not create space for religious free exercise. It preserved religious free exercise that already existed, protecting religious institutions and practices that had been present in the colonies from their founding in the seventeenth century.

In addition to this historical dimension to human relationality is the theoretical dimension. The founders were steeped in a society that took for granted Christian philosophical anthropology, which viewed every person as having duties to God that he or she must fulfil in conjunction with others. While we are free persons, we are relational in our freedom. This relationality is an essential feature of persons, the concrete beings we actually encounter in our everyday lives, the ones who actually cast votes, pay taxes, and write letters-to-the-editor. This person is neither the abstraction of the individualists nor the cog of the collectivists. For persons as relational beings, freedom is exercised in the context of a plethora of relationships that constitute the unwritten constitution.

The authors write, "A relational person exists with multiple dimensions: political, social, economic, and religious." The relational person is embedded in family, country, religious organization, local neighborhood, voluntary associations, and the like. Any account of the person that ignores these aspects of her concrete existence is in grave error. This means that theories of the law and the constitution must recognize the essentially non-political realms of human existence, where human beings interact in ways that are not strictly political. To be meaningful, freedom from political intrusion into realms of economics, society, and religion is necessary for humane existence because human beings relate to each other in these spheres.

These plethora of relationships are where the rubber meets the road in self-government. We relate to each other through our institutions and associations and there govern ourselves in relation to each other. The states/colonies were preexisting political entities where the inhabitants had governed themselves. These entities were not ignored or trampled upon, but incorporated into the new constitutional order. The rights often heralded as individual were really the preservation of social spaces for relational practices of worship, assembly, speech, and the like.

Asystem of individual rights undermines this understanding of the relational nature of the person and the fundamentally social nature of the unwritten constitution. This is where a lot of conservatives go wrong and it is why the authors are critical of the Supreme Court's incorporation of the Bill of Rights against the states. This move by the Court violated the logic of the Constitution, which preserved various spheres of autonomy, including that of the states, from federal interference. Furthermore, the Court used the concept of incorporation to increase its own power because the logic of incorporation made the judiciary the arbiter of the substantial content of rights as well as their application. All of this served to undermine the fundamentally relational nature of the unwritten constitution, one that is grounded in Christian philosophical anthropology of proper social relations.

The authors see this movement as leading to the privacy jurisprudence, which ignores the fundamentally sound relations between members of the traditional family. This line of jurisprudence is manifested most recently in Obergefell v. Hodges (2015). The authors spend an entire chapter dissecting the case, seeing in the thrust of the decision the reductio ad absurdum of the Court's refusal to recognize the unwritten constitution and the relational person. In Obergefell the Court struck down all state laws that defined marriage between a man and a woman. Justice Kennedy, who wrote the majority opinion, indicated that liberty had no definite content, but could be defined by what was necessary in any given time. The liberty manifested in the right to same-sex marriage is Lockean to the core. While conservatives often complain about progressive collectivization undermining the constitutional order, the authors argue that actually conservative Lockeanism has won and the constitutional order is being undermined not by collectivization but by individualization. "[The Lockean] transformation was and is in the interest of liberating the individual from all biological, relational imperatives and to free consent for every aspect of our life." The Court's effort to individualize a social institution by defining it in terms of individual self-fulfillment rather than social obligation and responsibility required it to strike down marriage laws in many states, thus undermining the relational nature of state governments as well.

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