Mirror of Justice

I invited Prof. Bruce Frohnen to write up a few words about his and George Carey's new book, Constitutional Morality and the Rise of Quasi-Law, which I think might be of interest to MOJ readers:

For decades I argued with my late friend and colleague, Georgetown political scientist George Carey, over whether the American Constitution is a dead letter. George thought it was dead. I still believe it is not quite dead. This limited disagreement rests on a more fundamental shared understanding that is at the heart of our recently released book: American political actors no longer respect their Constitution or the institutions, beliefs, and practices that until recently supported it and were supported by it in turn.

The theme of our book is that America’s unwritten constitution—that combination of traditions, legal structures, and political customs that shape a people’s public life—no longer fits the Constitution as written. This will come as no surprise to most students of constitutional government, but its implications have long been minimized or ignored. Our Constitution was designed for a free and virtuous people leading their lives within largely self-governing families, churches, and various local associations. Our national government now is run by and for elites committed to transforming society through mechanisms intrinsically hostile to the limited government dictated by the Constitution’s plain language.

Defenders of the current regime habitually dismiss defenders of our constitutional republic as retrograde yokels pining for a bygone era of horses, buggies, and institutionalized oppression. It is time to look beyond such self-serving obfuscations to the source and effects of the hostility toward constitutional, procedural, and legal restraints on which our current regime is based.

From Woodrow Wilson, through Franklin Roosevelt’s New Deal and to this day, Progressives have demanded that the “deadlock of democracy” be broken. They have sought to undermine constitutional restraints on centralized power in the name of “doing the people’s business.” That “business” has been establishing a new order under which administrative experts will protect individuals from want, prejudice, and disapproved hierarchies.

The Framers’ Constitution aims to provide specific, limited public goods, most especially the mediation of disputes among more fundamental associations and political units—those associations and units within which people may pursue good lives in common as self-governing, free people. That Constitution maintained the rule of law and ordered liberty through formal structures and procedures requiring development of supermajority support for most significant policy changes. As the Framers knew, the Constitution’s formal structures cannot function without a supporting constitutional morality emphasizing restraint and acceptance of formal limitations on power. Checks and balances limited arbitrary power only to the extent they were applied moderately and for limited, moderate goals.

Progressivism delegitimized this constitutional morality by presenting the people’s will as the sole source of political legitimacy and by propagating the myth of a “living constitution.” Living constitutionalists claim to seek the best in our Constitution by deriving abstract principles (equality and popular sovereignty) from it, then re-defining constitutional, legal, and governmental practice accordingly. Missing in this rosy picture is the rule of law essential for popular self-government. Progressives’ hostility toward constitutional restraint has produced a system in which Congress no longer makes laws, instead “enabling” executive agencies to do so. Their judges no longer adjudicate under law, instead approving or nullifying laws, institutions, and entire traditions according to their own ideological prejudices. Progressive and even putatively conservative Presidents no longer execute laws, instead ruling by decrees including executive orders suspending immigration laws and legislative signing statements establishing new federal agencies.

The result is a regime of quasi-law. Ignoring the essential nature of a constitution as rules for the making of rules, dispensing with the separation of powers as inconvenient, and rejecting their duty to restrain both their institutional rivals and themselves from overreaching, political actors today issue directives, from whatever branch of government, that have the form and effect of law, but lack essential legal characteristics. We examine these directives in terms of Lon Fuller’s elements necessary for law’s internal morality. They lack generality, being crafted for individuals or interest groups. They fail to provide notice to the ruled because they may come from any (or all) sources of political power. They lack clarity because they allow administrators largely unlimited discretion. They are inconsistent with one another and change radically over time. And they are administered in a manner that differs wildly from that in which they are declared. Consequently, we or our associations must “plea bargain” if charged with violations; we must seek waivers from unworkable regulatory schemes; and we must appeal to the political prejudices of particular judges to defend rights (including that to self-government) guaranteed by the Constitution. From citizens we quickly are becoming subjects of a lawless regime.

This electoral season gives scant reason to hope for re-establishing a genuine rule of law. But it is important to note that we have slid this far into a regime ruled by decree through decades of misunderstanding and constitutional corruption. At root the problem is that we demand too much from our central government and too little from ourselves, as individual persons and as members of more local, fundamental associations. Lawyers and political scientists bear particular responsibility for our dilemma because they have cast aside the model of constitutionalism on which our political tradition was built in favor of one that flatters their view of themselves as experts capable of designing a more fair and just society. But just order cannot be commanded from the political center; it must grow from people’s more natural associations. The character of a people is rooted in its culture, not its politics. And if politics is made the master of culture, our political leaders will become our masters, and our freedom will disappear. Specific reforms are simple to find, for they entail use of the tools (especially the powers of veto, impeachment, and removal from office) already provided by our Constitution as written. But any possibility of improvement requires acceptance of the fact that free governments can only exist within constitutional orders that limit, separate, and aim political power in the interests of associations more natural and fundamental than the central government.

Thanks, and congrats, Bruce!