The Constitution: What Is It Good For?

I got to spend the week before last with the summer honors students of the Intercollegiate Studies Institute (ISI), and if you’re interested in helping counter the rot of higher education, ISI should be high up on your charitable donation list. My lecture topic was devoted to explaining why the idea of a “living Constitution” is so crucial to modern liberalism and so dangerous to our liberties and free institutions. It’s actually quite simple: the Constitution, as written and understood by its authors, is an impediment to liberal dreams, which depend always on more power over people.

There are a variety of ways of approaching the general problem of liberalism and constitutionalism. Sometimes I like to use the famous passage from Michael Oakeshott’s essay “On Being Conservative” where he describes the dangers of the dreamlike character of liberalism that culminates in his useful aphorism, “The conjunction of dreaming and ruling generates tyranny.”

But for last week’s lecture I decided to take the students back to an old book, Charles Howard McIlwain’s Constitutionalism Ancient and Modern, first published in 1940. (Keep that date in mind.) McIlwain, a fixture at Harvard Law School, is the kind of constitutionalist you won’t find in very many law schools any more, and fortunately his book has been brought back into print by the good people at the Liberty Fund.

Early in the book McIlwain describes the classical understanding of moderation that is necessary to a decent constitutionalism that liberals simply can’t abide by today:

A constitutional government will always be a weak government when compared to an arbitrary one. There will be many desirable things, as well as undesirable, which are easy for a despotism but impossible elsewhere. Constitutionalism suffers from the defects inherent in its own merits. Because it cannot do some evil, it is precluded from doing some good. Shall we, then, forgo the good to prevent the evil, or shall we submit to the evil to secure the good? This is the fundamental practical question of all constitutionalism. It is the foremost issue of the present political world; and it is amazing, and to many of us very alarming, to consider to what insufferable barbarities nation after nation today is showing a willingness to submit, for the recompense it thinks it is getting or hopes to get from an arbitrary government. This great problem is the central one in Plato’s dialogues, and Plato’s answer to it cannot but interest the present-day reformer as well as the historian of constitutional development.

There’s much more of great interest in this passage of McIlwain’s fine book (especially his understanding of Plato) and perhaps I’ll return to it in another of my periodic mini-series here on Power Line. For today I’ll merely mention how timely is his warning about preferring the expediency of arbitrary government to constitutional forms of limited government in light of the recent survey results showing the rising millennial generation all over the world is increasingly skeptical of democracy and some of its core principles—especially free speech. From the Journal of Democracy:

“When asked to rate on a scale of 1 to 10 how ‘essential’ it is for them ‘to live in a democracy,’ 72 percent of those born before World War II check ’10,’ the highest value. So do 55 percent of the same cohort in the Netherlands. But … the millennial generation has grown much more indifferent. Only one in three Dutch millennials accords maximal importance to living in a democracy; in the United States, that number is slightly lower, around 30 percent … On the whole, support for political radicalism in North America and Western Europe is higher among the young, and support for freedom of speech lower.”

In recent days these findings have provoked alarm on the left, the right, and the center. Everyone has a different explanation, usually and conveniently conforming to their general political outlook. My own original offering is that millennials have no first-hand recollection of the Berlin Wall or the Cold War. (For whatever reason, the challenge of radical Islam doesn’t present the same ideological clarity that Communism did.) One reason for the popular strength of democracy in the middle and second half of the 20th century is that the catastrophe of the alternatives was so evident. One of the last conversations I ever had with Milton Friedman before his passing 10 years ago was about the prospect that socialism would become popular again. He was certain that it would, and behold: Bernie Sanders.

The impatience bred of idealism makes the millennials the perfect constituency for “effective” government, which means stronger government. Advantage: liberalism. We’re in for a very tough decade, no matter who wins in November. Thank goodness ISI rounds up able students inclined to learn about and champion the older wisdom of our Founders.

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