liberals, conservatives, and the American Constitution pt. 1

Modern liberals(progressives), following F.D.R. and some 19th century European intellectuals, do not believe in limited government. By and large, they reject the political order established by the American founders, which was a political order of separated and defined powers. They believe that the objects of all levels of the American government (local, state, federal) ought to be numerous and undefined, subject only to the whims of the people. Liberals want to progress beyond the limitations imposed by an earlier, and as they see it, benighted generation.

Conservatives, on the other hand, see good in the original American political order. Looking at the relative social stability, prosperity and progress the American nation has seen in the course of its 200-some-odd year history, they want to identify and conserve what is good in our particular tradition. Conservatives follow the Founders and some lessons from history and they argue that democracies can be unstable. Because of this, they say, the will of the people ought to be constrained to fight against the inherent instability. Conservatives believe the Constitution, in its constraints - the division and limitations of political power - has some valid purpose, and it is partially responsible for our stable political order. In short, they reject the idea that we should ignore entirely the advice of our Founders.

So, if liberals want to critique conservative ideas and vice versa, I would argue it has to be done on the level of principles. This is really the only way to make any progress in a conversation. And it is impossible to understand the principles that shape our government without attempting to understand the Constitution. Professor Russell Hittinger, in a previously mentioned lecture, has a masterful overview of our Constitutional principles. Here is a lengthy selection from his lecture, with some of my own emphasis.
But first, we must address a historical question. One of the framers of our Constitution, James Wilson, observed that the government created under the U.S. constitution was “hitherto a system unknown.” Why? Because the U.S. government was not just limited by law, or a feudal-rights system, customs and common laws, nor was it just limited by separation of powers (the executive, legislative, and judicial branches) Our new government was a brand new type of government, why? Because it was limited by other governments. Who has ever thought of such a thing? To create a government that is limited by other governments, according to a system of dual sovereignty. In fact, in Democracy in America, Alexis De Tocqueville contended that the entire genius of this new government is summarized in these four sentences from Federalist 45 (written by James Madison): “The power delegated by the proposed Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinable. The former will be exercised principally on the external objects of war, peace, negotiation and foreign commerce, with which the power of taxation will for the most part be connected. The powers reserved for the several states, however, will extend to all of the objects which in the ordinary course of affairs, concerning the lives, the liberties, the properties of the people, the internal order, improvement and prosperity of the state.” Now, according to Madison, the political rule of this regime created in 1787 consists of two quite distinct governments. Not one government in a small version and one government in a big version, but two distinct types of government. For example, in Federalist 51, he writes “in the compound Republic of America, the power surrendered by the people is divided between two distinct governments, hence a double security arises to the rights of the people.” Now, on the one hand, there are the governments of the states, and as Madison says, there powers are “numerous and indefinable,” because the objects of there concern extend to all those things in the ordinary course of affairs that bear upon the common good – protecting happy hours, midnight basketball, education, crime, religion, just make a list, well make a list of everything President Clinton proposed in the State of the Union address a month ago and Madison would have thought they pertained to State government for the most part. Now, in this kind of government, which has numerous and indefinable powers, treating families, crime, education, hoot owls, all sorts of things, we would expect in this kind of government to be an abundance of moral language about government, because government is teaching things that are so immediately questions of morality and social morality – what is a family? What is a crime? - And so on and so forth. But, the U.S. government was not created to be that kind of government. The U.S. government was a government of few and defined powers, limited chiefly to foreign affairs and the collection of taxes to support the national government, having very few objects. SO the US government was not to be the kind of government in which Madison and his colleagues thought was a government that was going to be so quick to talk about moral discourse, because the objects that it reached were so few and far between. Remember, our Framers, by and large, were against even the government building roads – they thought they had really dropped the ball when they allowed the postal service, for Heaven’s sake. Our Framers did not conceive of the U.S. government as a general type of government. It was a government of few and defined powers.

It should be emphasized this does not mean the government is not informed by moral principles, but that those moral principles are kind of indirect. Rather than listing all the moral principles that ought to limit the U.S. government, our Framers simply decided to list the powers that it had. The Constitution is silent, by and large, on how the powers ought to be used from a moral point of view. Enumerated powers do not necessarily tell us whether any particular law made by the U.S. government satisfies or dwarfs natural rights. Nor does it tell us immediately whether liberties we have against the U.S. government are exercised rightly or wrongly from a moral point of view. Our Constitution is remarkable, among other reasons, because it does not talk about morality. It is not a target rich environment for moral discussion. Now, just a minute ago, I said that the word “right” is only mentioned once in our Constitution, it comes from Article I section 8 where Congress is given the authority grant temporary rights to inventors; but Article I section 8 does not tell us about whether or how this right is to reach something like a Kevorkian suicide machine, much less, which of any writings have any redeeming social value. Question: does Congress have authority under the Constitution to grant a temporary right to someone who is making a suicide machine? Yes, I think. Question: Should Congress use that power it has to give rights to the inventor of a suicide machine? My answer? Probably not! But the interesting issue is that the Constitution doesn’t tell us. The Constitution lets Congress make that judgment. It’s up to Congress to make the judgment about the morality of the use of that power. And who’s going to tell Congress? You and me, and other people as well. I’m sure corporations who want to get into the business of suicide machines as well. There will be a healthy conversation in Congress about Article I Section 8 power – how it should be used morally rather than immorally. The Constitution does not constitutionalize that issue. Is having the power to grant temporary rights to inventors and their inventions – is that in accord with natural law? Sure, it’s not out of accord with it. But the next question is – is any particular use of this power moral or immoral? That is not constitutionalized. To decide that question, it will do no good to read further into the Constitution. That question has to be decided by reflection and debate.
The key connection he makes here is the relationship between morality and the Constitution. The Constitution is silent on matters moral, and this upsets many thinkers. So the question for next time is: why is the Constitution silent on moral matters? Is this part of the problem of American government, or is it part of its genius?

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