The Constitution and the Problem of Modernity

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Abstract

This paper defends the constitutional order because that order is endangered. It speaks of a ‘constitutional order’ because decent political life requires the stability that order brings. Tostay free, a people must know what to expect from government and what the rules of the game are. But a constitution is not merely a rulebook; it is a regimen. It teaches us how to live well politically and what government can and must do and what it should refrain from doing. The Constitutional order did not become endangered overnight. Its erosion has a history, dating back at least as far as the early 20th Century. The paper places this erosion in historical context because to understand where we are we need to understand the critical choices that got us here and the rationales behind them. It concludes by offering a principle for reviving contemporary constitutionalism.
Constitutional erosion continues to be fueled by intellectuals and politicians who ignore the degree to which the nation’s problems stem from modernity itself. As they rightly assert, the Constitution is not democratic. It sets up obstacles to national majoritarian democracy – the Electoral College, the Senate, the police power of the states and life tenure for federal judges. They view unimpeded majoritarianism as a superior teaching and healthier political regimen than the complex set of outlets for and limitations on the popular will the Constitution provides.
Even as modernity improves life, it creates thorny problems for free government. Their keen grasp of many of those problems impelled the framers to tame modernity, not to simply embrace it. Their creation, as it has been suitably amended, remains the best framework for reconciling modernity and liberty. The theme of this year’s annual meeting is diversity. I show that the Constitution protects diversity far better than mass democracy does.

The paper begins with a brief description the political impact of modernity.
First the paper describes the key politically relevant challenges modernity poses for the modern state. In addition to size and diversity these include: the decline of religion and the concomitant turn to worldliness; equality, not economic or even social equality, but equality before the law; geographic mobility both between and within countries; unprecedented coercive capacity; and the application of remarkable advances in scientific and technology both to produce devastating levels of military destructiveness but also unprecedented levels of population growth, public health, longevity and prosperity.
Then paper shows how the Constitution reconciles a strong modern state with liberty through partial embrace of modernity tempered by pre-modern considerations – limits, localism, and a decent respect for habit, custom, and past experience. This argument is substantiated by looking at the Constitutional Convention to understand how and why the specific set of institutional arrangements designed to reconcile energy and liberty was adopted, particularly those involving representation, the authority of the state governments, the extent and limits on executive power, and an independent judiciary. It emphatically rejects the claim that this framework is merely a mechanism fueled by radical individualism and selfishness, but rather shows that it rests on a subtle and broadminded understanding of citizenship. Although the reliance on representation does limit the involvement of citizens in the national government, it still rests on the wisdom and public spiritedness needed to make what the Federalists term “honorable determinations” regarding their choice of representatives. The American practice of federalism—almost unique among modern states— was meant to deepen the experience of citizenship locally, while removing from the authority of the federal government many things of importance that are too intrusive to be trusted to Washington.
Modernity’s challenges grow ever greater. The modern state must not only be powerful enough to ensure national security; it must also discipline business, provide social insurance, maintain a vast infrastructure, and promote prosperity. Its greater energy makes it even more in need of control. The final section of the paper addresses this fact. It is entitled “Reform in the Constitutional Grain.” As in carpentry, so in practical politics, working with the grain yields more durable and serviceable results. Working with the constitutional grain can yield policies that are effective but also comport with our deepest political principles. The Constitution was designed to promote deliberation, consensus, and public participation, without surrendering the values of energy, stability and legitimacy. It provides a guide to what the national government should do and what it should refrain from doing. This concluding section will offer practical examples of how the constitutional grain can best be preserved.

Author

• Marc Landy, Boston College