The Line Through the Heart by Budziszewski J.;

Author:Budziszewski, J.;
Language: eng
Format: epub
Publisher: ISI Books

8

Constitution vs. Constitutionalism

I

Lex facit regem. In these three words, Henry de Bracton expressed the essence of constitutionalism. The king is supreme within the system of laws but not over it; law makes the king, not the king the law.

The aphorism, of course, is not just about kings. It endorses the “rule of law” in opposition to the “rule of men.” More precisely, constitutionalism is the principle that the real authority of government, as distinct from its sheer ability to compel, depends not on the personality of the rulers, but on antecedent principles of right. What we commonly call the law—governmental enactments—is not the ultimate ground of right, but an elaboration and specification of these antecedent principles in the light of the circumstances at hand.1 Because the elaboration and specification of these principles is necessary to the common good, when the enactments that result from them meet certain conditions they “bind the conscience” of the citizens. In other words, they become real obligations. The authority of the government is simply its ability to bind conscience, subject to these conditions. Power then is justified by authority, not authority by power.

One would think that a written constitution would provide constitutionalism with its highest and most perfect expression. Of course, not any such document would do. It would have to be simply phrased, properly ratified, publicly promulgated, and compatible with the antecedent principles of right that we have been thinking about. This would enable it to serve as a “higher law”—not in the sense that it replaced these antecedent principles, but in the sense that it regulated all subsequent attempts to elaborate and specify them through ordinary law. Should some rulers declare lawful what the constitution forbade, then other rulers, or perhaps citizens, could appeal to that constitution in opposing them.

This was certainly how the American Founders expected their Constitution to work.2 As always with big ideas, what actually happened is more complicated. No doubt, having a written constitution does promote constitutionalism in some important respects. However, in other respects it can actually undermine it. Surprisingly, some of the ways in which this can happen were anticipated by critics at the time, especially Brutus, a pseudonymous Anti-Federalist who was probably the New York judge Robert Yates, who had been a delegate to the Philadelphia Convention in 1787.

Probably we don’t sufficiently cherish what is good about our Constitution. And yet at the same time, we aren’t sufficiently on guard about what is deficient about it either. Even Brutus did not propose doing without any written constitution. What he proposed was a greater sensitivity to the dangers of such instruments, and the ways in which they can backfire. Needless to say, his advice was not taken, and perhaps it may be said that thinking about what might have been is not much more helpful in statecraft than in love. I think, though, that the Brutusian critique may help us to deal more realistically with the Constitution as it is—the one we must expect to have for a good while longer.

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