Elizabeth Corey has a very interesting review of a book by Gene Callahan about the extent to which the ideas of the British political theorist, Michael Oakeshott, are consistent with some of the founding ideas and principles of the American nation–particularly those championed in the Declaration of Independence but also in the US Constitution. Corey describes the book–Oakeshott on Rome and America–as working its way through this question by positing that it is true that, for example, the Constitution displays the sort of rationalism in politics that Oakeshott criticized–averring principles and political arrangements that were to bind future generations. Nevertheless, there are both internal and external limits on the rationalism of the Constitution. The internal limits are structural, providing for a government of limited powers and securing ample space for the sorts of civil association that Oakeshott defended. Here’s the conclusion of Corey’s review, which explains the external limits:
Does our American Founding, despite its aim of limiting and checking the power of those who govern, exhibit an essentially Rationalistic tendency? In other words, are the self-evident principles and universal rights it proclaims really nothing more than a distillation of the inherited English political experience, parading as eternal truths? And even if they were considered eternal truths in 1776 or 1787, are they really so today? Callahan observes that if the political culture does not support such rights and limits, or if presidents, politicians and judges are intent on, to put it gently, reinterpreting them, then there is nothing at all to stop them from doing so.
Callahan observes that a written constitution will inevitably “be read in a way that conforms to the prevailing understanding of how government ought to operate and what powers it ought to possess.” This is not simply because living constitutionalists and progressives of all stripes have managed to gain majorities in important cases. It is because, argues Callahan following Oakeshott, no written constitution can do what it purports to do in terms of providing pointed and substantive barriers to political action, especially when majorities support such action. For such reasons even Originalism is unsupportable. The notion of grounding or stabilizing the meaning of the Constitution by recourse to “original intent” is, he observes, “not just a pipe dream today, but always was such.” In short, the political culture supports the Constitution; not the other way around. We need only look at the contemporary debate about marriage to see that this is true, whether we like it or not.
One final thought. Perhaps, it might be argued, Oakeshott is right in his arguments about political culture. Politics goes on as it will in a democracy so long as a majority is happy with the outcomes. Yet given the current debates over religious liberty, one wonders where we would find ourselves without the “protection,” or at least the threat, of the first Amendment against government overreach. It is one thing to find the provisions of the Constitution and Bill of Rights not totally adequate for the job; it is another thing to be without them altogether. All parties in the debates over enumerated rights at least acknowledge that the Bill of Rights must be taken into account.