Reading:
de Maistre, The Generative Principle of Constitutions.
The United States Constitution is a document, assumed to have a precise, if disputed, meaning, which lays down the fundamental procedures and offices under which the country as a whole is to be governed, and defines the rights and duties of the citizens generally, and also of those who exercise political authority over them. It has created a point of departure for all discussion of political philosophy in this country, and it is in the background of almost all arguments about the nature and limits of political authority, whether conducted from a liberal or a conservative perspective. This fact leads Americans to overlook how very peculiar their situation is. First, their constitution is a federal constitution – a declaration of laws and procedures which purport to create a new federation out of pre-existing states, already constituted as political entities. In that sense it is not a constitution but a meta-constitution, a constitution derived from and reflectively meditating on, a pre-existing collection of constitutions.
Secondly, the federal constitution was set out at a critical moment in the history of a new country, following the declaration of its independence, and with the conscious intention of supplying the offices and functions that would no longer be available, following the break-away from the English Crown. Other countries with constitutions have adopted those constitutions along the way, not by way of affirming their independence, but by way of giving order and direction to an independence that already exists.
Those facts, combined with the very special historical circumstances that led to a constitution shaped by highly educated, peacable men, schooled in the philosophical ideas of the Enlightenment, and animated by a fundamentally optimistic and tolerant vision of human nature, have given to the US constitution its peculiar character. It has lasted ; it has thrived through the process of amendment ; it has founded an extensive body of law that is now influential throughout the world; and it has acquired a quasi-sacred status, so that although liberals and conservatives routinely disagree over what it means, they agree that, when its meaning has been discerned, the resulting jugement is final. In a way it would not be a constitution if that were not so. Nevertheless, there are degrees of finality, and that of the US Constitution has something of the finality that attaches to the Koran.
Joseph de Maistre.
Maistre would not be surprised by the thought that the US Constitution has acquired a sacred character. If it is a genuine constitution, he would argue, then it is sacred. That is because constitutions, if they exist, are granted by God, and are not the work of men. Either people simply trace with infirm hand over the sacred writing already bestowed on them by the Almighty, or the bits of paper which they call constitutions are acts of hubris and illusion.
Why did he think this? The first point to remember is that Maistre seemed not to be in the slightest interested in the American experiment. It belonged to another and less drastic world than the one in which he had been raised. His target in all his writings is the French Revolution, its causes and its effects. And he saw that Revolution as an act of rebellion against God, which led inevitably to collective violence and aggressive warfare since, without divine guidance, that is the destiny of man. The mark of rebellion is precisely when human beings set themselves up as self-governing creatures, able to make constitutions for themselves, and to define without reference to God’s purpose the fundamental terms on which they are to live together as a community.
Behind that view there lies a religious position, that defended in Maistre’s book Du Pape, and known as ‘ultramontanism’ – meaning the view that the true source of authority in human affairs comes from ‘beyond the mountains’ (i.e. beyond the Alps) where it is embodied in the Papacy and the Roman Catholic Church. The Papacy is the source of divine guidance, through the Apostolic succession, and without that guidance we are the inevitable victims of original sin. The arrogance and chaotic misgovernment of the French Revolutionaries was, for Maistre, the proof of that, and it was their attempt to impose on France a constitution other than the one revealed in the divinely guided customs and offices that had endured for centuries that was the source, in his opinion, of the post-revolutionary catastrophe.
If that were all there is to Maistre’s thought you could easily dismiss it as the philosophy of a reactionary bigot with nothing concrete to say, either by way of a theory or by way of political advice. Moreover his view is inseparable from a particular religious and theological perspective that is no longer widely shared. But to dismiss Maistre on these grounds would be wrong. He was animated by the same recognition of the unfulfillable epistemological obligations of revolution that animated Burke. And he expressed this recognition in a sceptical thought about constitutions. A man-made constitution was as impossible for Maistre as a planned economy for Hayek. Human reason doesn’t take this kind of shape, and constitutions cannot be understood as the work of committees. The work of a committee may coincide with a constitution; but it cannot create it. There are reasons for thinking this, other than those given by Maistre:
1. Successful constitutions must contain the answers to new questions that arise in the course of government. But that means they must have the power to integrate those answers into the ongoing political process. In other words, they must already be shaped by that process, so as to conform to the historically given expectations of the community. Those expectations are the real constitution, of which the written document is only at best the self-conscious part.
2. All written laws must be interpreted, and interpretation means the application to concrete situations. Those situations contain within themselves the principles for distinguishing true from false applications of the written document – in other words they are shaped by something (an historical consensus) that might with better title be called the real constitution of the commonwealth. (You see this thought process unfolding in the celebrated Supreme Court case of Dred Scott, and its constitutional aftermath.)
3. Constitutions which aim to give complete accounts of the aims and limits of government inevitably have an abstract air – like the Declaration of the Rights of Man and of the Citizen. This means that they can be arbitrarily interpreted to mean whatever those who appeal to them wish them to mean. The French Declaration was used to authorize mass murder, even genocide (in La Vendée), despite being ostensibly directed to guaranteeing human rights! This was because it guaranteed nothing at all.
4. Real constitutions are concrete, contained within the day-to-day procedures of political life, implied in the inherited framework through which human beings negotiate their co-existence and resolve their conflicts. They can be made explicit (up to a point) but only because they pre-exist the document that attempts to make them so. (This would be how Maistre, with some plausibility, would view the US constitution.)
5. It is plausible to suppose that the most successful constitutions – the British being an important example – have evolved over time, and shown themselves through custom and convention rather than explicit constitutional rules. Such constitutions are hidden from questioning, and also from direct attack, by their embedded and customary character.
None of those reasons give grounds for thinking that successful constitutions are created by God: though for a theist of Maistre’s persuasion they come very near to a proof of that contention. What they do suggest, however, is that you do not create a constitution merely by writing down a set of rules on a piece of paper and then voting to stick by them.
Constitution and law.
This brings us to the connection between constitution and law. There is some doubt whether the British constitution has the status of law. For example, it is a constitutional convention that the Queen chooses the leader of the largest party or coalition in Parliament to be her Prime Minister. But if she did not choose that person, she would not be breaking the law. It is a constitutional convention that Parliament does not create a criminal offence without proof that there is a harm to be remedied and that the law is a proportionate response to that harm. But Parliament breaks no law when it legislates contrary to that convention – as with the Hunting Act 2004.
Some people say that this is a peculiarity of the British constitution, and proof that the British don’t really have a constitution. Maistre would take it as a proof of the opposite: laws for him are man-made; but constitutions lie deeper than laws. They can be violated without breaking any (man-made) law. But what is broken then is a relationship of trust – the ‘entrusting’ of a people to God, which is enshrined in their deep-seated customs and conventions. You could drop the theological diagnosis and still accept that the British style of constitution is the only style that truly deserves the name – for example, on Hayekian grounds, that constitutions must emerge by an invisible hand from the procedures whereby a society negotiates its way from past to future, and that no attempt to legislate a constitution could actually produce what is required.
Positivist thinkers, however, tend to think of a constitution in the manner of Kelsen, as the ‘fundamental law’, the Grundnorm, of the State. A constitution has the force of law, and cannot be broken without incurring legal penalty. However, it is also something more than law, since it sets the limits to legislation and also defines the procedures whereby laws are made and applied. If it were to be itself merely a law among others, then it would invalidate itself: it would be a law passed without reference to the procedures for passing valid laws, which exist only after the constitution is in place.
That said, a written constitution is supposed to have many of the defining properties of law: it is prescriptive in form; it determines the legal status of certain acts (including acts of the legislature); and it is applied in a judgement delivered by a court of law. This court, the Supreme Court, stands in one sense higher than the legislature since it can pronounce on the validity of the latter’s decisions. Maistre would see in this a further sign of the confusion exemplified by the belief that men can make constitutions. In setting up a Supreme Court, he would argue, people introduce an intolerable element of uncertainty into all the acts of government. A small coterie of judges, whose qualifications have no bearing on the needs and duties of government, are thereby given the final say in all legislative decisions. Sovereignty is confiscated from the heart of politics and dispersed through judicial offices which have none of the accountability that is proper to government.
Constitutions and the Judiciary.
Putting aside that criticism for the moment, we must acknowledge that a written constitution does require a supreme court if it is to be a reality. Moreover the judges of that court must be independent. What does this mean? Montesquieu, following and amplifying a suggestion of Locke’s, advocated the ‘separation of powers’, arguing that the judicial power is in principle distinct from the legislative and the executive, and defending the separation of the three branches, so that each might act as a corrective against the concentration of power in any of the others. The issue here, discussed compellingly by Madison in nos 47 to 49 of The Federalist , is by no means as simple as it might at first appear: it is usually the executive that appoints the judiciary, for example, and the judiciary that rules on the validity of laws passed by the legislature. Nevertheless, as Madison points out, sufficient of Montesquieu’s original principle can be retained, to make the separation of powers into an effective reality, given the general good will of the people andof their representatives.
However far the powers can be separated within a state, the judiciary could not be the guardians of the constitution if its decisions could be dictated by the executive branch, or overridden by legislation. For these and similar reasons it is usually thought that some kind of entrenched judicial independence is necessary for the existence of a real constitution. The French Declaration of Rights was worthless since no judge had the power to enforce it against the Assemblée or against the self-appointed ‘Committee of Safety’. Stalin’s constitution of 1935, hailed by fellow-travellers in the West as the ‘most liberal constitution yet devised’, specified no procedures which a citizen could use in order to force a court to apply it. Judges were not independent, but had to obey party orders in any constitutional case. As we all know, this was not a constitution but a form of words that had to be recited whenever any innocent person was being punished.
Why is judicial independence so important? Because a constitution is not just a formula governing the exercise of political powers. It is also by its nature a shield to the citizen against the abuse of those powers. If the citizen cannot invoke it in his own defence then it is not a genuine constitution, since it sets no limit to the power of the state. But without judicial independence the citizen has no real power to invoke the constitution: invoking it would be merely appealing to the very power against which he is trying to shield himself.
Constitutions and Rights.
That seems to suggest that a Constitution should, if it is to perform its function, contain a Bill of Rights, in the manner of the US Constitution. Maybe this is not necessary – see below. But it is one of the best ways we know of ensuring that citizens can rely on the Constitution as a law which stands above the legislature, preparing to act on the citizen’s behalf against any abuse of power. Of course, this raises all over again the question of rights that we discussed in the classes on freedom and on justice – in particular the contrast between freedom rights and claim rights. There is all the difference in the world between a Constitution that specifies the things that cannot be done to the citizen, without infringing his rights, and the things that must be done, in order to satisfy his claims. The first kind of Constitution reduces the power of the state; the second amplifies it. The first is a liberal constitution in the classical sense of the term – the sense that is more associated with conservatism today; the second may be a liberal constitution in the more modern sense, of a constitution devoted to advancing a left-liberal agenda.
Suppose we accept, nevertheless, that a constitution without a bill of rights is only half a constitution. What should be included in the bill? The tradition of political thinking here goes back at least to Magna Carta of 1215, and took on its modern form with the English Bill of Rights of 1689. This was not a written constitution, but nevertheless for that very reason somewhat closer to what Maistre would call a constitution: a declaration of the pre-existing rights of the subject, as sanctified by immemorial custom and the common law. The rights include those defined by the royal writs of the Middle Ages, such as Habeas Corpus , which is the right to petition the Crown to take the part of those imprisoned without due process of law. It is said of the English Bill of Rights, however, that it is of no lasting effect: all the rights supposedly protected have since been qualified by legislation or case law, and none can be relied upon absolutely. Even Habeas Corpus has been qualified by anti-terrorism legislation, and is now vulnerable to EU proposals to unify the criminal codes of Europe. Hence, it is said, there is no permanent guarantee of rights unless they are written into a constitution, and protected by a Supreme Court whose judgements take precedence over any decision of the legislature.
This is where one of the major conflicts between liberals and conservatives arises. Legal contests are zero-sum games: one party wins, the other loses. When rights are defined by a constitution, therefore, they can be absolutely protected against the State, regardless of the public interest. Moreover, the interpretation of the rights is a matter of judicial, rather than political, reasoning. The list of rights may look fine in the abstract. But, as Burke pointed out, everything does look fine in the abstract, since reality has been excluded from the deal. What a ‘declaration of rights’ amounts to in concrete terms can only be ascertained after the event, as the Supreme Court decides the constantly evolving flow of cases brought under the constitution. But once a particular form of behaviour has been protected as a constitutional right, all similar instances are also protected, and the state is bound to protect that behaviour, even if it is manifestly not in the public interest. (Consider, in this connection, the environmental effect of certain property rights; the effect of the right of free speech in the form of pornography; the right of European gypsies to traditional life-style and the effect on planning law: and so on.) Decisions of a legislature can take into account all the competing interests and work towards a compromise: the aim is not to define a ‘winner’ in a zero-sum game, but to find a solution which provides something to everyone, so as to maintain balance and defuse resentment. Rights provisions in constitutions militate against that process, and – when pursued by activist judges – may very well be a source of dangerous social conflict, and a derogation from democratic procedures.
Constitution and Common Law.
That argument can be taken further, and brings us back to Burke’s criticism of Natural Rights, as these were invoked at the Revolution. Burke did not deny that there are natural rights. But he saw them as procedural constraints rather than comprehensive social goals. By making them into goals, to be pursued by whatever means most efficiently delivers them, Burke believed the Revolutionaries had licensed their systematic breach. Events proved how right he was: the pursuit of the ‘rights of man’ authorized such inventions as the Revolutionary Tribunals, where judge, jury and prosecution were identical and the accused deprived of the right of defence: a violation of the procedural idea of natural justice which opened the way to mass murder.
Burke here touches on a point of profound significance to the theory of the common law. In common law jurisdictions, the rights of the citizen are protected precisely because they are not stated as the aims of legislation, but concealed within the procedures of the court. They are the rights embodied in the principles of natural justice, according to which everyone is innocent until proved guilty, everyone has a right to defend himself, no-one can be judge in his own cause, and so on. These principles were stated by St Augustine, but were already implicit in the Roman law. They distinguish just from unjust procedure, but do not allocate rights on any other basis.
The question then arises whether a country with a common-law procedure actually needs a Bill of Rights. That passed in 1689 was merely an attempt to summarize the rights guaranteed under common law – i.e. an attempt to return to the traditional rights of English subjects, before the infractions of the Stuart monarchs. The current legislation, incorporating the European Convention on Human Rights, has caused more conflicts than it has resolved, and the Conservative Party has promised to revoke it. And in so far as the 1689 Act went beyond common-law principles, it has been qualified out of existence. Yet British subjects famously enjoy more real liberties than are available elsewhere in Europe (with the possible exception of Switzerland).
For similar reasons, the British have until recently felt no need for a written constitution. Do they in fact have a constitution? Because nothing is written down, the actual constitution cannot be treated as a matter of law. Yet there are constitutional cases, in which the House of Lords determines whether or not some particular act was ultra vires (e.g., whether Parliament in fact has the power to legislate about a particular issue, whether a government official has the power to collect information of a certain kind, and so on). The law invoked in such adjudications, however, is of no special standing, and can be revoked by Parliament at any time, by simple majority voting. Again there are constitutional conventions, such as those referred to above, but these are without explicit legal, but only implicit customary authority. Some speak, nevertheless, of an unwritten constitution, but the more one examines it the more it becomes clear that there is no item in this constitution that is secure against contrary legislation.
Generative Principles.
But is the case really different with a written constitution? Here we should contrast the fate of a written constitution in civilian (Roman law) and its fate in common law jurisdictions. In the first kind of jurisdiction the constitution is rigidly interpreted, according to jurisprudential principles (for instance, by the Conseil d’Etat in France). As soon as it enters into conflict with legislation a crisis occurs, and the crisis has a tendency to escalate until the legislators lose patience with the constitution and abolish it. This has been the normal fate of constitutions in France and Italy. The post-second-world-war German constitution has been more successful, largely because the constitution is federal, and able to transfer most of the important conflicts to the lower jurisdictions of the Länder.
When a constitution is provided for a state with a common-law jurisdiction, however, matters look very different. Case-law rapidly takes over from the original document, which soon becomes entirely veiled by its judicial interpretations. The leading textbook on the US constitution (Edwin S. Corwin) is entitled The Constitution and What it Means Today, implying that the document does not have a fixed meaning at all (but see below), and that the case law has in effect taken over. This means that constitutions in a common-law jurisdiction do not present ultimate impediments to law: almost any provision in them can be circumvented, by judicial reasoning in the particular case – though the circumvention will be presented, in such a case, as an ‘interpretation’. The major difference between the US and the UK in this respect is that constitutional impediments in the US are undone by unelected judges, dealing in the language of individual rights, while similar impediments in the UK are undone by elected legislators, arguing from the ‘public interest’. Put the point in that way, and it is not at all obvious that a written constitution is to be preferred.
But this returns us to Maistre. The title of his essay is significant: The Generative Principle of Constitutions. Maistre was seeing constitutional laws in something like the way Chomsky sees the laws of grammar: not as rules which can be explicitly stated in legal form, but as the principles which generate legislation, from some underlying ‘deep structure’, which is the real basis of the social order. (Hence his emphasis on the two fundamental principles: that of the basis (deep structure) and the name (surface grammar).) And the generative principles, in a common-law jurisdiction, are identical, regardless of whether the jurisdiction enjoys a written ‘constitution’. They are the principles of adjudication according to natural justice: principles which it is not so foolish to think of as laid down by God. The operation of those principles, in the American case, has shown the persistent attempts of judges to reconcile the Constitution (revered nevertheless as a ‘sacred’ document) with the demands (a) of natural justice and (b) of social policy – the judges taking on themselves the task of the legislature, in making laws that will meet the needs, as they see them, of the ever-evolving society. It is this second enterprise that has proved most controversial in recent years, and which has divided conservatives from liberals in the Supreme Court.
Constitutional Hermeneutics.
That brings us to what is perhaps the principal dispute, in this matter, which is the dispute over the interpretation of the Constitution. This is a dispute that is independently interesting, since it engages with a problem that has been a live issue at least since the time of Friedrich Schleiermacher, the German romantic theologian, who raised the question of the principles that must be deployed when interpreting texts by dead authors, and who insisted that the psychological aspect of interpretation is at least as important as the semantic. In the case of the US Constitution, the authors of which are long dead and unable to respond to questions, there is a real dispute as to what is relevant to its interpretation, and another dispute as to what an interpretation is aiming at. Is it aiming to tell us what the framers originally meant by their words? Or what they would have meant were they alive today? Or what their words now mean, in the light of the history that has since unfolded, and whether or not their meaning would have been acknowledged by the framers?
This dispute came to prominence at the time of Robert Bork’s nomination to the Supreme Court. Bork is a defender of the ‘Original Understanding’ view of the Constitution – the view that the Constitution means exactly what the original framers intended it to mean. Hence a great many constitutional cases (such as Roe v. Wade) have been wrongly decided, by invoking principles and arguments that would have been entirely rejected by the framers. In Roe, for instance, Blackmun J. invoked a ‘right of privacy’ that is not explicitly mentioned in the Constitution. He argued that unborn children have no rights under the Constitution, since it mentions only citizens as entitled to claim those rights and the unborn are not citizens. And so on. There is no doubt in Bork’s mind that the framers would have disagreed vehemently with those judgements. Yet how does he know? And what if they would?
In Law’s Empire Dworkin takes a contrary position, arguing that the interpretation of the Constitution is, like the interpretation of any historical document, a matter of deciding what it means now. The intention of the framers is relevant, but largely undecidable, except through the interpretation of the Constitution. It is to be assumed that they intended to mean what this – the living document – says. Hence reference to the framers’ intentions merely returns us to our starting point, which is the Constitution itself. (A useful parallel: the case of authentic performance in music. Is the goal of performance to produce the sound that the composer’s instruments would have produced, the sound that he intended, or the sound that he would have intended, had he known of the instruments, and the audiences, that are around today? This near-irresoluble dispute can be set aside, once we realize that it doesn’t much matter. Maybe all three goals produce interesting interpretations, and it is up to us to choose between them. In the constitutional case, however, matters of enormous importance hang upon the decision, and it is uncomfortable to think that it is just as arbitrary.)
This matter is relevant to the liberal/conservative dispute, for the obvious reason that, in referring back to the framers, one is situating the Constitution in its 18 th century context – a strategy that is likely to deliver fairly conservative conclusions in matters of religion, morality and property rights – while in referring the constitution to its current context, it becomes far easier to read into it the emerging moral and religious sensibilities of a more liberal or egalitarian age. However, there is a danger that the liberal ‘hermeneutical’ approach advocated by Dworkin will make the Constitution entirely hostage to its interpretations, and the interpretations entirely hostage to the judges. If the only constraint on interpretation is the current meaning of the words, and if meaning changes to match the social and political circumstances, as the judges perceive them, then the constitution has no ability to constrain judges against their personal agenda. When there is a liberal Supreme Court, liberals will be happy; when there is a conservative Supreme Court, conservatives will be happy. But neither side will be able to trust the Constitution, as defining the common assumptions and shared principles which enable them to live peacefully together, and which rescues the core of social life from the conflicts of politics. To put the matter again in Maistre’s language, the hermeneutical approach replaces a real constitution with an irresoluble quarrel.
An important thought emerges from that: namely, that a Constitution should be above politics, defining the enduring social context that makes politics possible. It cannot be a way of taking sides in the issues which divide society. It must be a way of affirming what is common to the warring parties, a way of building the shared framework without which their dispute is neither meaningful nor peaceful nor possible for long. Hence the ‘capture’ of the Supreme Court in the US by politically motivated judges has made the Constitution into a source of conflict, as much as a solution to it. (To some extent this evil was foreseen by ‘Brutus’, the pseudonymous writer of the anti-federalist letters that appeared in response to The Federalist papers. (See The Letters of Brutus, nos. XI to XIV.) Brutus argued that too much power had been given to the judiciary in the federal constitution, and not enough steps had been taken to make the judiciary accountable to the people as a whole.)
Sacred Words.
Maistre observes that sacred things (or things seen as sacred by those who deal with them), have a durability consonant with their eternal meaning. This is as much true of texts as it is of buildings. Hence religious liturgies, prayers and texts for the most part use some antiquated form of the current language, or even a language like Latin that is no longer spoken. By becoming sacred, the words lose the capacity to change. The words of a liturgy must remain the same for ever and ever amen. (Think of the survival power of that last word! And who knows where it comes from?) But the liturgy will not mean the same to one generation as it will mean to the next. Each generation will be looking for the edicts which confirm its way of life, and the loopholes through which its sins can escape divine judgement. The liturgies and prayers exert some constraint on conduct, it is true. But people will interpret them in their own favour, and seek to live within the religion by making the religion live around themselves. One consequence is, that the more sacred the words, the more negotiable their meaning. The realm of religion is a realm of negotiated meanings, in which nothing is constant save the sacred symbols, the sacred objects and the sacred texts.
Something similar has happened in the realm of constitutions. As Maistre says, they endure because sacred. He believed that this implied that nothing as fleeting as a written document could ever be a constitution. But it would have been more plausible to conclude that, if a written document is held up as a constitution, its words become sacred. And where words are sacred, meanings are negotiated. This is the situation over which Dworkin and Bork are at such loggerheads. Both regard the document as sacred. For each of them it defines the basis of the American settlement, the thing that we share, and which cannot be touched except by reverential priests following sanctified procedures. But the sanctity of the document, for Bork, implies the sanctity of the intentions from which it issued. For Dworkin it implies the sanctity of its ‘current’ meaning, where that meaning distills the results of judicial reflection and public policy, with a view of fitting the constitution to society, rather than society to the constitution. Both would be dismissed by Maistre, as confusing the basis with the name.
One thing is certain, we cannot interpret sacred words as we interpret words in a conversation. I know what you mean, when discussing some matter with you, because I can use the generative grammar to unearth your intention, recognizing the second-order intention that I should do so. (The literature on all this is vast, of course: see Grice’s 1959 article on meaning in any standard collection, and subsequent discussions by Searle, David Lewis (Convention), Jonathan Bennett (Linguistic Behaviour).) When interpreting a sacred text, however, I put aside the utterer’s intention. For reference to the utterer’s intention would merely reduce the text to an ordinary human statement, part of a conversation in which I too am included, the merely transient expression of beliefs and feelings that have long since slipped into oblivion. By endowing the words with a sacred character I lift them to another interpretative level. It is not the intention of the one who originally uttered them that now matters; it is the intention with which they can and must be uttered, by someone who uses them, in their liturgical context, now. But who is that someone? Who is the true priest of the Constitution? The judge? The jurist? The legislator? The conflicts replicate themselves, and there is a great danger that we might lose all objective constraint on the Constitution’s meaning, as liberals and conservatives, anarchists and socialists, tear away at it, each reading what he wishes into the sacred words, while adamantly affirming his belief in their inviolability.
Here we see why Maistre wrote as he did. The dispute between the Borks and the Dworkins, he would argue, is simply further proof that human beings are not able to make constitutions. For they are not able to create sacred things: by pretending that their own words are sacred, they condemn the meaning of those words to arbitrariness. Indeed, the words simply lose their meaning. They can be made to mean whatever is wanted, by the person who has temporary charge of them – be he liberal, conservative, anarchist or what. Meanwhile the real constitution, the order on which the society is founded, remains genuinely sacred, because created by God. But like all truly sacred things, it must be revealed, and the instrument of this revelation is history itself.
Constitutional Discovery.
A less drastic version of that idea is the theory that constitutions are not made but discovered. This would be a kind of Hayekian-cum-Burkeian theory of constitutions, on the model of Hayek’s theory of common law, and Burke’s theory of tradition, as the slow approach to a reasonable solution. Maybe this is the best way of seeing the British Constitution, as it was before disruption by the EU. Here we might explore those old conservative contrasts: the reasonable versus the rational; the customary versus the invented; the procedural versus the teleological, and so on. And we might venture to suggest that, whether or not written, a constitution is discovered slowly, as a society gradually acquires the procedures for resolving conflicts, restoring normality and making acceptable laws. On this view the US Constitution was not a discovery, but an attempt to write down and perpetuate discoveries already made – and made for the large part by the English common law. And on this view, it becomes obvious that a Constitution is not a form of politics, but the thing that makes politics possible.