by George Anastaplo
Governments necessarily have to take into account the character of their people, as may be seen, for example, in what is assumed (as well as promoted) by the criminal law of a community. There are likely to be, worldwide, familiar elements of human character needed if there is to be reliable security with respect to public safety, property, and routine human relations. Much is taken for granted in what is transmitted across generations.
Distinctive elements in the national character may be necessary, as well, if there is to be an enduring political order. The significance here of prudence should be noticed. Thus, it is recognized in the Declaration of Independence that “Prudence, indeed will dictate that Governments long established should not be changed for light and transient Causes.”
A challenging and hence instructive way of examining these matters is to suggest that only the English-speaking peoples, among the large countries of the modern world, have sustained constitutional governments across centuries. Smaller countries may have special features, such as a high degree of intimacy among their respective peoples, to develop and sustain decent governments. It should be wondered, therefore, what may be distinctive, with a view to our familiar constitutional government, about the English-speaking peoples.
A good place to begin our inventory is with a document originally available only in Latin, the Magna Carta of 1215. We can be reminded, upon so beginning, that it may take centuries to develop a reliable constitutional heritage. We can also be reminded that determined exercises of that power may be needed in establishing and maintaining such a heritage.
Thus, we have been told, the Lords Spiritual and Temporal, gathered at Runnymede “swords in hand,” obliged a monarch to recognize dozens of established “rights.” By doing so, the very idea of enduring rights seems to have been sanctified. Particularly significant was an influential precursor in Magna Carta of what we know as the Due Process Clause: “No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the law of the land.”
Not only were established property rights recognized on that occasion along with traditional social relations, but also the very right that was being exercised at that fateful moment, that which we have come to call the Right of Revolution. Thus, the King conceded on this occasion that the Barons “may elect twenty-five Barons of the kingdom,” who may, among other things, use force to oblige the King to comply ever after with what had been agreed to. There may be seen here, in effect, the recognition of an authoritative political body substantially independent of the Monarch.
Also taking centuries to develop in a way useful for an enduring constitutional heritage has been the common law of the English-speaking peoples. This is a system of sustained reasoning applied to case after case by learned judges with the help of competent lawyers and thoughtful scholars. The informed reasoning that is required here, taking account of changing circumstances (including the constant development of technology), is evident in such cases as McPherson v. Buick (1916).
Critical distinctions between good and bad, between the better and the worse, are to be reasoned about. The rule that is preferable is to be determined by disciplined inquiry, not merely by a recourse to authority. The current downgrading of proper judicial authority with respect to the common law of the Country may be seen in the deference to power in effect insisted on as fundamental by the United States Supreme Court in Erie Railroad Company v. Tompkins (1938).
On the other hand, judicial authority has been improperly enhanced by the insistence that the Supreme Court can routinely assess Acts of Congress for their constitutionality. Nothing in the Constitution of 1787 supports such a comprehensive (indeed, revolutionary) judicial power. Nor was there, before 1787, anything substantially in support of such a power in the Anglo-American constitutional tradition.
Critical to the heritage essential for substantial Anglo-American constitutionalism have been Judaic-Christian influences (reflected especially in what we assume about “the person”). Important here, partly because of how it has helped shape our thought, seems to have been the King James translation of the Bible. Even Skeptics have been elevated, along with Believers, by the language thus enshrined and thereafter commonly resorted to in the community.
Christianity can even be understood to have helped make available, in forms suitable for sustained constitutionalism, the piety of the Israelites and the patriotism of the Classical Greeks. The political influences of those quite assertive peoples seem to have been moderated, and put to good use, by Rome. The Roman influence is hinted at in our political vocabulary (which includes “capitol,” “republican,” and “Senate”).
The accuracy of the King James translation of the Bible has been repeatedly called into question. But the majesty of its language continues to move us far more than precise translations are ever likely to do. The character molded thereby is more apt to sound (and to be?) “real.”
And then, of course, there is the influence among the English-speaking peoples of William Shakespeare. It is hard to overestimate that influence. Thus, it bears repeating that Alexis de Tocquerville, a half century after the Federal Convention of 1787 at Philadelphia, reported in his Democracy in America,
The literary inspiration of Great Britain darts its beams into the depths of the forests of the New World. There is hardly a pioneer’s hut which does not contain a few odd volumes of Shakespeare. I remember reading the feudal drama of Henry V for the first time in a log cabin.
This “feudal drama,” we can recall, has as its climax the grand victory of King Henry over the French at Agincourt. Among its memorable features (as presented in this play) is a monarch’s recognition of the brotherhood of all who fought on the English side on this occasion: king, nobles, and commons. Their brotherhood counts far more than the social distinctions insisted upon by those safe in England.
This, Shakespeare suggests, is what makes for the most serious, the most enduring, human relations. It is respect for such relations, and the shared risks and sacrifices they permit and require, which is critical to a reliable constitutionalism. This sort of comprehensive and comprehensible humanity may be seen again and again in Shakespeare’s plays.
Among the lessons taught by those plays is what is shown about Roman republicanism. Consider, for example, the stature among us of Brutus, one of Julius Caesar’s assassins, whom we are apt to know best through Shakespeare. He is flawed, but still considered noble, as may be seen, for example, in how his name (and that of his ancestor Brutus) could be appropriated for pamphlets protesting anti-republican tendencies in the proposed Constitution during the 1787-1788 Ratification Campaign in this Country.
Shakespeare’s Brutus can be usefully compared with that, say, of Dante. That Brutus is eternally subjected, along with Judas Iscariot and Cassius, to the greatest torments in the jaws of Lucifer at the very bottom of the Inferno. Dante shows no sympathy there for the dedication to republicanism with which Shakespeare invests his somewhat flawed conspirators against Caesar.
Shakespeare, with the aid of Plutarch, suggests what he believes can be said for a republican regime. He may even be understood to be sympathetic to republican tendencies in the English regime of his day. Not long after the career of Shakespeare, it should be remembered, the tendencies implicit in the movement since Magna Carta culminated in the execution of Charles I in 1649, the issuance of the English Bill of Rights of 1689, and the dependence upon a covert republicanism that the British have had ever since.
Constitutionalism has republican government as its most obvious political form in the modern world. Among republican manifestations is an insistence upon the sacredness of liberty. And yet, chance developments were once such as to move some republicans to defend, in deeds as well as in speech, even the institution among them of chattel slavery.
Thus, significant elements in the United States considered themselves obliged to defend slavery at the very time that it was being steadily repudiated by one Western community after another. Such a defense could not then be made, it seems, without an insistence that slavery was indeed good even for those who happened to be enslaved. Is not such an argument, however perverse, a tribute of sorts to constitutionalism?
That circumstances and hence chance can help shape the institutions of a people may be seen in how readily the French may resort to nationwide demonstrations which can paralyze the life of a community for days at a time. Even so, one can get the impression (at least from the outside) that somewhat comparable demonstrations elsewhere are less disciplined, as may be seen in modern Greece. And then, even worse, there is the intensive bloodletting among religious sects that may still be seen elsewhere in various parts of the world from time to time.
An enduring constitutionalism does depend on a disciplined people somehow respectful of opposing opinions. Particularly instructive here can be Question Time in the British House of Commons. Week after week, while the House is sitting, Cabinet officers can be publicly subjected to probing questions about their policies and objectives.
This is consistent with an institutional arrangement which has the party in power able to insist upon the steady enactment of its legislative program. Critics do remain free to point out defects both in expectations and in consequence. But it is recognized that someone must govern.
This approval can call into question legislative and other devices which tend to paralyze effective governance. Such a device, it can seem, is the current filibuster regime in the United States Senate. Indeed, it can even seem to some that such tactics are not consistent with a healthy constitutionalism—and as such should be routinely repudiated by a people equipped to govern itself in a responsible manner.
We can be reminded, by such observations, of the character appropriate for an enduring constitutionalism. It can be wondered, however, whether extended modern wars and intense economic globalization incline peoples and their regimes to resemble one another, and not for the best. It can also be wondered whether this tends to mean the reckless disparagement of solid ways of life (not necessarily of a constitutional character) that have taken centuries to develop.
Particularly troubling, at least these days, can be enduring concerns about Terror and Terrorists. The injuries anticipated from such assaults may be far less severe (say, in the number of lives put at risk) than other practices routinely endured by a people. But the Sense of Proportion does tend to be lost sight of when Terrorism is suspected.
What, in short, are the consequences of sustained fearfulness on the character of a people? The character appropriate for an enduring constitutionalism is that of citizens who can (as the Declaration of Independence puts it) “mutually pledge to each other [their] Lives, [their] Fortunes, and [their] sacred Honor.” Meaningful distinctions can be made among peoples, and among the decent (constitutionalist and non-constitutionalist) regimes appropriate for them, distinctions that are reflected in the language and stories, and hence the heritage, available to them.
Remarks prepared by George Anastaplo for the October 25, 2010 meeting of his Constitutional Law Seminar, Loyola University School of Law, Chicago, Illinois. These remarks should be incorporated in George Anastaplo, Reflections on Crime, Character and the Constitution (in course of preparation). See, also, http://www.anastaplo.wordpress.com.