Liberals, Conservatives, and the Constitution pt. 2

I'd like to continue with yet another selection from Russell Hittinger's lecture, American Constitutionalism. I've mentioned it previously here and here. Obviously, I'm a big fan. In this selection, Professor Hittinger outlines the argument the Federalists made against the enumeration of rights. In spelling out this argument, some aspects of American Constitutional thought become clear - specifically, the reason the Constitution is devoid of moral language.

Now, our Framers tried to avoid swamping our Constitutional discourse in continual philosophical disagreement and religious disagreement, by simply saying: we either gave to the government a power or we didn’t. If they don’t have the power, they can’t do anything about that matter. Why get into a debate about what conscience is? Especially in a pluralistic society in which people have many different ideas of what conscience is and what its scope might be. In Federalist 51, James Madison said, “In framing a government to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself.” The Federalist argument was, it’s easier to make the government control itself by enumerating its powers. It is easier to enumerate the powers government has than to enumerate the rights you think you have. Hamilton, for his part, argued in the debate over whether the Constitution should include a bill of rights that it’s very difficult to list all of the legitimate rights people might have. Not only because that list might turn out to be pretty long, but because it’s very difficult to put into a list of rights precisely what the right is you have. To say you have a right of conscience isn’t telling anyone anything. It’s not precise enough, it’s not specified enough. And Hamilton warned that if we get into the business of listing our rights, it would furnish to men a plausible pretense for claiming power. Why? Because if you list rights against government, and these rights are not precise, if they are very vague, you have simply invited the government now to interpret what those rights were and once the government claims power to interpret vaguely formulated rights, you have increased, rather than decreased the power of the government. In fact, almost all lists of rights, both at the national and the international level tend to be what I call underspecified rights, very vague and general. So vague and general that no one really knows who owes what to whom.

This last idea - who owes what to whom - is a good definition of justice. Hittinger is saying that enumerating vague rights confuses our ability to see justice done properly. You can see an example of a vague right entering our Constitutional discourse in Anthony Kennedy's ruling in Planned Parenthood v. Casey, where he writes "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life". This is the ground that a woman's right to procure an abortion rests. This is to say that that right rests on a meaningless, self-contradictory metaphysical claim. This nebulous right leaves the issue of the justice of abortion left unsettled.

In the course of his takl, Prof. Hittinger gives many more reasons the Framers left moral language out of the Constitution:

...because there is no way to make an adequate and precise list of all of the moral principles that ought to limit a government. This list will teach people the wrong message – it will teach people the message that, if you don’t have something on that list, then it’s open season.

...

[Justice Story] is paraphrasing here, Alexander Hamilton’s famous argument from Federalist 84 on whether a Bill of Rights is necessary. Hamilton’s argument was this: “The Constitution is itself in every rational sense a Bill of Rights.” Why? Because the Constitution delegates and enumerates the powers of the U.S. government, and therefore there is no need to limit the government by the addition of natural rights claims, or indeed, any kind of rights claims. Hamilton asks, “Why declare that things should not be done which there is no power to do?” Accordingly, the internal structure of the government protects rights by spelling out precisely what the government can and can’t do. If Article I gives to Congress no power to make a law respecting an establishment of religion there is no need to reiterate that point in a list of rights.

I think it is important to be familiar with these arguments. All too often, we buy into the enlightenment myth of progress - we believe our knowledge, in all areas, always increases. When we do this, we assume that we now know more about the best system of government than any previous generation could have. Of course, this is not necessarily true. In learning the reasons and wisdom of the Framers, it's easy to see that in many ways, we know much less.