[This review was published in the Summer 1994 issue of The Journal of Social, Political and Economic Studies, pp. 252-256.]
The Conservative Constitution
By Russell Kirk
Regnery Gateway, 1990
Most American conservatives don’t realize it, but there is a major split within conservative thinking about the American Constitution. Anyone who has not followed the developing ideas might well expect that American conservatives would tie their thinking to perhaps an updated version of the views of the pre-New Deal Supreme Court, which predominated, albeit with some setbacks, until the modern liberal ascendancy began on the Court in the late 1930s. This was a view that championed individual liberty and the limitation of governmental power, notably through the doctrine of “freedom of contract” and through a delimiting interpretation of the jurisdiction of the federal government under the Interstate Commerce Clause.
However, that is not the tack taken by several prominent conservatives. The “Original Intent” school, represented by such conservatives in prominent positions as former Reagan attorney general Edwin Meese, Chief Justice William Rehnquist, and erstwhile nominee-to-the-Court Robert Bork, has explicitly repudiated the classical liberal interpretation. Theirs is a view that harks back instead to the Federalist interpretation of the Constitution that predated the Jeffersonian revolution of 1800.
I hesitate ever to Russell Kirk, the author of the book under review. He deserves too much respect as an independent thinker for that. No doubt there are nuances of his thought that would not coincide with the thinking of each member of the Original Intent school. In connection with such complex issues, legal and historical, I will not seek to deny each thinker his individuality.
Nevertheless, it is instructive to think of Kirk’s book as a significant contribution to the literature of the Original Intent school. Kirk puts himself in league with the Federalists, not with the individualism and increasing democracy that he sees as having come later.
The book is composed of assorted lectures Kirk has given regarding the American Constitution. Because some of those lectures most directly had to do with the influence of the British statesman Edmund Burke, Kirk at one time planned to call the book Edmund Burke and the Constitution of the United States. Even now, that wouldn’t be a bad name for it, since Kirk says a “reader will find some of Burke’s wisdom in every chapter”; but Kirk observes that he “strayed from the theme,” broadening it beyond the influence of a single statesman into a more general discourse on the Constitution. This becomes especially apparent when he allows himself (to the reader’s advantage) to discuss so contemporary a theme as the penetration of “secular humanism,” as an ersatz religion, into today’s schoolrooms.
A refreshing feature of the essays is their literary approach to the Constitution. This is not a book that a lawyer would be inclined to write, since a lawyer would look mainly to the Court and its decisions during what is now more than two centuries. Kirk’s discussion, to the contrary, is written in the context of such constitutional-philosophical commentary as that supplied by Sir Henry Maine, Walter Bagehot, James Bryce, Orestes Brownson, and others.
An Implicit Quandary: What is “Conservatism”?
Classical liberals who today regard themselves as conservatives will experience a certain disquiet about the foundation upon which the position rests. This disquiet goes to the very nature of the traditionalist conservatism that Kirk endorses.
We know from Kirk’s Conservative Mind that conservatism “of Burke’s school” is built on several elements:
. the central role of the Christian religion;
. social hierarchy involving “orders and classes”;
. property (primarily landed and not mainly commercial or industrial, since Burkeans were conservatives who identify with landed aristocracy and most assuredly not with the commercial bourgeoisie);
. limitations on will, appetite, and unfettered reason;
. and gradualistic reform (although obviously not of a type that will move the society away from the other foundations just listed).
What is worth noting is that these preferences express a consensus that preceded the modern age. Consistently with this, the late Richard Weaver of the University of Chicago decried, in his book Ideas Have Consequences, what he perceived as Western civilization’s slide into decadence since—when?—the fourteenth century, a slide that he saw as due to peoples’ having lost sight of God, the true reality! And perhaps more forcefully than anyone else, Eric Voegelin has asserted the ontological primacy of a God-oriented cosmology, and the consequent wrong-headedness of secular views of the world. Many contemporary conservatives of the Burkean school trace their thinking back to before the Enlightenment, which they see as having led the West in a profoundly wrong direction.
Understood in all its parts, this is a worldview that makes few, if any, concessions to the major tendencies within Western civilization since the fourteenth century. I say this even though we must keep in mind the variations within the Burkean model; there are substantial differences in degree as to each element.
If, then, we make a forward leap to the eighteenth century, to such men as the Founding Fathers, including several prominent Federalists, how much are we to understand that their thinking really represented this medievalist worldview? Their views simply are not the same thing—not, at least, unless we find thinkers among them whose own “conservatism” harked back to embrace the medieval concept of consensus.
Did Burke, in
, do that? Yes and no. True, he saw himself as representing something of a mild conservatism, such as when he favored a “potent monarchy” but not an absolute one. He wanted a “monarchy directed by laws, controlled and balanced by the great hereditary wealth and hereditary dignity of a nation; and both again controlled by a judicious check from the reason and feeling of the people at large acting in a suitable and permanent organ.” Nevertheless, it is impossible to read his Reflections on the Revolution in France without becoming aware of how much he brought together into a coherent expression the worldview of kings, a hereditary landed aristocracy, an established church, faith, tradition, and vigorous government. “We fear God,” he wrote; “we look up with awe to kings; with affection to parliaments; with duty to magistrates; with reverence to priests; and with respect to nobility.” England
Although Burke the statesman had one foot planted in the eighteenth century, Burke the philosopher had the other foot planted squarely, with the bulk of his weight on it, in the medieval consensus, which I have been speaking of, for the sake of convenience, as the viewpoint of the fourteenth century. Most certainly his overall view of society as expressed in Reflections did not express the Zeitgeist of the late eighteenth century.
Did it express the Zeitgeist even of the Federalists among the American Founding Fathers? Let’s look at what they wrought: The Constitution established a Republic, not a monarchy. This was no small thing, but rather a revolutionary move away from
Europe’s ancien regime. By comparison, Burke was no republican. The First Amendment guaranteed the free expression of religion—an immensely significant concession to individual judgment as against those who had so long asserted cosmological certainty. The same amendment forbade any establishment of religion—meaning that the nation could not give its imprimatur to a single religious view. Kirk rightly observes that this bound only the federal government; but it is worth noticing that eleven of the thirteen former colonies no long had established churches and that the other two were on their way to abolishing theirs. Titles of nobility were banned—there was to be no hereditary aristocracy.
For Kirk successfully to postulate the American Constitution as a product of “conservatism,” classical liberals would claim that he would have to repudiate the definition of conservatism advanced by Weaver, Voegelin, and Burke the philosopher (as summarized by Kirk himself in his Conservative Mind). They would claim that he tries to remain true both to the worldview of
Europeprior to the French Revolution and to that of the Federalists among the Founding Fathers of the American Constitution.
But this is not to say that there is not an important part of the truth in Kirk’s analysis. Vastly important vestiges of medievalist conservatism were present in the thinking of the Federalists. Indeed, these vestiges are essential, even, to classical liberal individualism. Responsibility, familial duty, religious sensibility, a healthy skepticism toward thoughtless innovation, respect for property, a desire to see ability recognized and rewarded; all these and many more of the tempering virtues important to civilization would have to be invented (as though that were easily possible!) if they did not come down to Americans from past centuries. In this sense, the early American polity was “conservative.” Kirk is right when he points out that the Founding Fathers built on a long history of colonial and British experience, unlike the French who found themselves adrift on a sea of pure ideation because they had no comparable history of popular participation in government.
If I may return to the point I made at the beginning, which was about the split within contemporary American conservatism over the nature of our Constitutional heritage, I would say that the primary effect arising from the analysis made by Kirk and others of the “Original Intent” school is that it leads them to repudiate the pre-New Deal classical liberal interpretation of the Constitution. For a Supreme Court justice to attempt to go back 205 years in preference to a mere 55 is really quite radical. But that is essentially what happens if conservatives hold, with Rehnquist, Bork and Kirk, that the classical liberal construction of the Constitution was fundamentally in error.
It is appropriate to close with a reiteration of the praise that was voiced earlier. Consider, for example, the wisdom in Kirk’s reference to such a thing as “the moral imagination that nurtures a vision of human dignity.” And, too, the wisdom of his saying that “great states with good constitutions develop when most people think of their duties and restrain their appetites. Great states sink toward their dissolution when most people think of their privileges and indulge their appetites freely. This rule is as true of democracies as it is of autocracies.”
Readers won’t find that sort of insight in much that they read elsewhere today. Nor will they often come upon so learned a style. Those reasons alone are sufficient to commend the book highly.
Dwight D. Murphey