The Unwritten Constitution’s Overwriting the Written Constitution

 

Some will argue that the American form of government is not so easily changed or its Constitution so easily amended that this cultural degradation will find expression in the wise government of the people.  The true genius of the American Experiment, they say, is its insightful structuring of checks and balances among the branches of government, not in the character of its citizens.  The Framers recognized the limitation of trusting in human goodness to establish good government and overcame that obstacle through their clever drafting of the Constitution. 

 

This attempt to privatize morality and pretend that it has no effect on government does not work.  In time, the unwritten constitution of the culture rewrites the constitution on paper.  J. Budziszewski in his book, The Revenge of Conscience, writes that “…every country gets the government it deserves: one cannot expect liberty, justice, or concern for the common good where knaves rule a rabble. . . The single greatest problem of politics is simply this:  How can we make government promote the common good when there is so little virtue to be found?”[8]  Attempts to recover a correct rendering of the Constitution solely through the appointment of strict constructionists to the high court, while laudable and important in its own right, overlooks the greater influence of popular culture on judicial decision-making.

 

The restoration of just policies must be preceded by the rediscovery of transcendent truth in the unwritten constitution our culture creates.  Robert Bork notes that, “The tyrannies of political correctness and multiculturalism will not be ejected from the universities by any number of conservative victories at the polls.  Modern liberals captured the government and its bureaucracies because they captured the culture.  Conservative political victories will always be tenuous and fragile unless conservatives recapture the culture.”[9]

 

It would certainly be a mistake to think of politics as nothing but a reflection of culture.  Law is a teacher, and politics is one of the culture-shaping institutions.  Legal sanctions do help to inform and guide the conscience of a nation.  Everything from tax policy to health insurance law plays a role in shaping culture.  My own active political involvement underscores this conviction.  Mobilizing voters, distributing voter guides, congressional hearings, petition drives, phone banking, and fundraising, are integral to a healthy republic.

 

But the tendency for many Americans is to overstate the importance of politics in shaping culture.  When compared with Hollywood, academia, media, or the family, politics plays a relatively minor role in forming culture.  Political life, while it may appear to be at the vanguard of a society, is more like the infantry.  Politics stands at the front lines, but is directed from the rear by the culture.  Its prominence in the place of battle may deceptively suggest that the battle rages there.  That we mark our history by various government actions like the New Deal, the Great Society programs, Roe v. Wade, and the 1994 Republican congressional takeover might suggest that law and politics lead our society.  Instead, philosopher Michael Oakeshott notes that politics protects a particular social order, but does not lead or guide it.  The Magna Carta and the Bill of Rights only seem to emerge from the political order.  In fact, their content is written by a “stratum of social thought far too deep to be influenced by the actions of politicians.”[10]  Oakeshott continues, “A political system presupposes a civilization; it has a function to perform in regard to that civilization, but it is a function mainly of protection and to a minor degree of merely mechanical interpretation and expression.”  The animating genius of any political system is far behind the lines of the visible political battle, calling the shots like a general.

 

Edmund Burke wrote that “manners are more important than laws,” and Plato wrote, “Give me the songs of a nation, and it matters not who writes its laws.”  Consider what animates most individuals: literature, religion, entertainment, and music.  Individuals rarely change their lives based on a political speech or a government act.  An individual may be inspired to work for a political candidate who reflects what he finds most important in preserving or creating a certain kind of culture.  But, more often than not, it is the cultural consensus that precedes the political expression.

 

 

 

[8]               J. Budziszewski,  The Revenge of Conscience: Politics and the Fall of Man  (Dallas: Spence Publishing, 1999), 55-56.

 

[9]               Robert H Bork,  Slouching Towards Gomorrah: Modern Liberalism and American Decline  (New York: Regan Books, 1996), 339.

 

[10]               Michael Oakeshott,  Religion, Politics, and the Moral Life, ed. Timothy Fuller (Need City: Yale University Press, 1993), 93.

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