This is part of a RealClearPolicy series centered on the American Project, an initiative of the Pepperdine School of Public Policy. The project looks to the country’s founding principles to respond to our current cultural and political upheaval. This essay is adapted from “A Constitution in Full: Recovering the Unwritten Foundation of American Liberty,” by the late Peter Augustine Lawler & Richard M. Reinsch II ©University Press of Kansas, 2019.
We Americans have embraced the self-evident truths of our Declaration, which proclaims that each of us has been created equal with inalienable natural rights. But we tend not to embrace the abstract method proclaimed by John Locke and other modern philosophers for establishing those truths. This is a good thing. Instead of seeing the written Constitution as grounded merely by natural rights and autonomous individuals, we have looked to a prior, unwritten — “providential” — constitution.
“Providential” here does not refer to some intervention of Divine Providence into history. It has to do with the fact that no written constitution could emerge from nothing, but is necessarily dependent on various “givens” that limit and direct what is possible for statesmen at any particular time. These givens should not be seen as oppressive constraints but civilizational accomplishments that make the written Constitution and constitutional order possible. “Providential,” in this sense, means to be guided by what one is given by custom, tradition, and prior political experience, and even from philosophy and theology.
This unwritten constitution is found in a people’s political culture, mores, customs, dispositions, and peculiar talents. The constitution of the government is built on this assemblage of order and is deeply connected to it. Thus, the authoritative law of a particular country can’t be viewed apart from the context of the unwritten constitution. No government built to stand the test of time can be a merely willful construction that defies the historical, spiritual, and cultural materials that have shaped or formed a people.
Brownson’s Critique of Lockean Contract Theory
Notice that the constitution that emerges from Lockean contract theory is consented to by self-interested individuals, and it exists to secure their universal natural rights. Governments are monolithic in their origin, form, and purpose, because individuals are monolithic in their origin, form, and purposes when uprooted from particular inheritances and even biological differentiation. This constitution devised solely in the interest of the rights of individuals is based on the unrealistic abstraction of unrelated autonomous individuals — beings divorced from the privileges and responsibilities of being parents, creatures, and even citizens. Lockean thought, thus, isn’t political enough to be the foundation of government, and it isn’t relational enough to articulate properly the limits of governments or the roles of family and organized religion.
It is true that Locke’s social-contract teaching provided for many Founders the way to justify their independence from Great Britain and the formation of the American union. This fact, however, is tempered by the statesman-like compromises these men made to secure political unity. The content of those compromises made what they built better than what they knew through their theory, insofar as they took into account the political, religious, familial, and other relational dimensions of the human person that were slighted by Locke’s individualism. That is to say, the process of political deliberation gave our country’s foundation particular or providential content that fleshed out Locke’s otherwise abstract theory.
According to Orestes Brownson, a 19th century New England intellectual associated with the transcendentalist movement who converted to Roman Catholicism, the equality of human persons is a fact. But it is a fact that entered the world through Christian revelation and was later affirmed as self-evident by philosophers. As Lincoln put it, equality is our proposition that inspires our devotion. It was brought to America, Tocqueville says, by our Christian Puritans. Brownson contends that such self-evidence is undermined by the pure Lockean dimension of the Declaration, where individual sovereignty becomes the foundation of government. Every man, Locke says, has property in his own person, and for Brownson that assertion of absolute self-ownership is, in effect, “political atheism.” But, with the providential constitution in mind, the Declaration really does become about the equality of all men by nature under God:
under the law of nature, all men are equal, or have equal rights as men, one man has and can have in himself no right to govern another; and as man is never absolutely his own, but always and everywhere belongs to his Creator, it is clear that no government originating in humanity alone can be a legitimate government. Every such government is founded on the assumption that man is God, which is a great mistake — is, in fact, the fundamental sophism which underlies every error and sin.
Brownson’s rejection of the implicit atheism of the Lockean effort to transform all of human life in terms of contract and consent is based on his observation that such misguided liberationism or individualistic “secession” inevitably leads to the interlocking vices of modern political life: anarchism and consolidation. Social contract thought lacks an external standard higher than man’s will that could limit, shape, and condition it. The highest being is man, who would self-create government by consent as to provide a protection against violent death and to secure property rights.
Brownson contends that the transformational project of self-sovereignty or political atheism as laid out by Thomas Hobbes, John Locke, and Jean Jacques Rousseau aims, with its misguided conception of human liberty, to displace the complex relationship between the nature of the human person and political order with a world full of self-consciously autonomous individuals. The outcome is the enlightened deconstruction of the free and relational human person in order to reconstruct political order as consciously utilitarian, or representing the truth about free and contracting individuals to themselves.
The individual armed with a bevy of rights before the state is likely to be swallowed, Brownson observes, by a collectivism made possible by the elimination of various types and scales of communities that stand between the individual and that state. There would, it follows, be no context and content for being a truthfully free and relational person. Only if the person is understood to be more than a consenting individual can the limits to government be more than “negative” or empty. To be sustainable, they must correspond to the fuller truth about who we are. For this reason, Brownson wrote of humanitarian liberals as “abolitionists” about the business of abolishing the real human distinctions that make up the world of particular persons in favor of the leveling of humanity.
The unwritten or providential constitution thus replaces the social contract and grounds the actual Constitution, limiting the range of potentialities it can develop. These limits also provide reasons for affirmation of an architecture of devotion to a country’s actual constitution, its way of life. This particular or political way of thinking recaptures something of the Greek polis, but with the Christian addition that each of us is more than a citizen through our relational devotion as creatures to the church. The American republic is also to be distinguished from the tribe, by its devotion to a common good that’s much more than collective selfishness. The American idea of the providential constitution places our particular country under the universal yet still personal God.
The Dialectic of Nation and State
America’s written Constitution of 1787 has to be understood by the unwritten order. That order encompasses America’s common law heritage, the colonists’ practice of self-government, the positive good of religious devotion and pluralism, the colonies as separate and then unified political actors in war, largely democratic emigration patterns, and colonial resistance to an empire that had abused historic common-law rights and its own tradition of limited government. The Framers built as statesmen, and as such they drew from all the sources that history, philosophy, political precedent, religion, and the rest of our civilized tradition had given them.
In the United States, the citizen is a member of both the state and the nation. This dual status reflected, in part, the preexisting political settlement of the colonies. According to Brownson, two facts are salient: the colonies had instinctually united in their push for independence from the British Empire; and as subjects of the Crown, they had voiced their political grievances through their colonial political bodies. The colonies themselves, Brownson notes, had united as a protest against abuses of their English liberties and then to declare independence. Once independence was achieved, America eventually jettisoned the Articles of Confederation, its wartime constitution. This rejection was an affirmation of experience in favor of a political articulation more suited to the actual unity of the colonies during their war for independence.
The constitutional framework of 1787 thus expressed the dialectical form of national and state political organization in America. In their ideal relationship, Brownson urges, the national (general) and state (particular) governments are not inevitable competitors but are instead called to realize in their work man’s natural requirements that move from the local community outward to larger spheres of interaction:
The simple fact is that the political or sovereign people of the United States exists as United States, and only as United States. The Union and the states are coeval, born together, and can exist only together. The Union is in each of the states, and each of the states is in the Union.
Brownson reconciles the particularity of the states with national unity in a way that makes federalism compatible with republican loyalty. Sovereignty inheres in the American people only as they exercise power in their membership in the States United, and not in the singular states as is demanded by the compact theory of John Calhoun, whereby the Union was created by the separate states, with the consent of the states replacing the consent of the people as the principal of the Union. The individual states in their particularity are completed, Brownson urges, through union with their opposite: the United States. This dialectic of order helps us understand the difficult relationship of dual sovereignty, and also justifies Brownson’s opposition to Southern secession.
Of course, the idea of the States United entails the legitimate identity of the states within the republic and fully affords them their rightful authority under the Constitution. For this to occur, however, the states must acknowledge that their legitimacy is in their union. These United States authorize the political existence both of each state and of the national government. Thus, Brownson corrects both the secessionists who deny the reality of the nation and the abolitionists who do away with the states in favor of a consolidated union. He argues that “if the principle of unity” is removed, then “the state is dissolved.” But “take away the principle of plurality, and the Union would be a simple, centralized despotism.” Therefore, “The true American statesman will guard with equal vigilance against consolidation and against disintegration.”
Territorial Democracy
Complementing the unwritten constitution is the notion of territorial democracy. Brownson recommends this concept as a correction to the modern political temptations of hyper-centralization and excessive individualism. Territorial democracy is Brownson’s way of expressing the irreducibly republican dimension of every free political order.
Political loyalty pertains to the way of life shared by a particular people occupying a particular part of the world. The idea of natural rights, as so many contemporary libertarians contend, makes the very idea of legal borders seem unjust. Free individuals should be directly open to each other in an unmediated marketplace freed up from the “rent seeking” of political force and fraud. The truth, however, is that we embodied beings necessarily find ourselves at home in particular places; even natural rights, to become effective, have to be secured by a particular order. Political order, Brownson adds, is about justice understood as a good shared in common, as opposed to the selfish loyalties demanded by tribes, tyrants, and dislocated individuals. But it is still limited in important ways.
For Brownson, a good polity will connect and reconcile the free and relational person with self-government and law and thereby engender devotion to the common good. Citizens occupying a particular part of the world, joined together by borders, law, and defined accountability of rulers to ruled — this is what makes republican government possible. As a political order, Brownson’s territorial democracy is not open to ongoing redefinition by majorities, nor is it created purely by contractual consent. Principles of popular sovereignty, equality, and majority rule operate within the context of territorial democracy.
Brownson dismisses from republican government abstractions such as the sovereignty of society or of individuals creating government from a putative state of nature, making government an artificial rather than a natural institution that flows from man’s sociability. Power is a public trust, not a form of obedience either to either majoritarian suppression of particular liberties, or to the endless rights-claims lodged by autonomous individuals against society. Instead, it is ordered to the demands of a shared political enterprise that emerges from man’s social nature.
Brownson’s project does not entail constructing a new philosophical basis for American government so much as putting the Founders’ philosophic views in the larger context of the magnificent accomplishments of their deliberative statesmanship. Our country’s self-understanding finds the mean between “humanitarian” political centralism and “secessionist” atomism in the limited but real political unity of citizens who are both more than and less than citizens.
The American republic isn’t to be confused with the comprehensive republicanism of the polis, although it is richly deserving of civic loyalty. American citizens are also free economic actors responsible for taking care of their material needs. They also flourish as spiritual beings who find their home in a corporate religious body.
Peter Augustine Lawler was Dana Professor of Government at Berry College. Richard M. Reinsch II is editor of Law & Liberty and the host of the podcast Liberty Law Talk.
