Dr. Ted McAllister Reviews Book on Rise of "Quasi-Law"

February 12, 2018  | 8 min read

The Unwritten Constitution Today

Ted McAllister | Winter 2018 | The University Bookman

Constitutional Morality and the Rise of the Quasi-Law 
by Bruce P. Frohnen and George W. Carey.
Harvard University Press, 2016. 
Hardcover, 304 pages, $45.

One of the most serious questions of our time is whether the rise of the regulatory state has created a lawless government. Among those who have asserted that United States government is no longer bound by the Founders’ conception of law and Constitutionalism, Bruce Frohnen and the late George Carey argue that the “constitutional morality” that characterized the American social and constitutional regime at the Founding has given way to a justice-driven “quasi-law.” Understanding their argument in some of its subtlety will be necessary if the rising generation wishes to live in a nation of self-governing people rather than under a democratic regime of placid majorities enjoying the succor of soft despotism.

We live in a time when citizens lack the conceptual apparatus to see the distinction between self-rule and democratic majoritarianism. The most important question is whether this conceptual ignorance is a function of miseducation or if it issues from deeper social and cultural currents that have not only reshaped our federal government but also the mores, habits, and tastes of the citizens. And on this question the authors offer no compelling, or at least comprehensive, answer—but then their work is narrowly historical (legal and Constitutional history), which is a necessary condition for answering that question.

The lawless regulatory state and the ebbing of the American tradition of self-rule is an emerging theme among a variety of scholars. Charles Murray, in By the People: Rebuilding Liberty Without Permission, offers the most compelling libertarian version of this argument in which he presents us with a “Madisonian” response to regnant majoritarianism. One of the most interesting similarities between Murray’s book and Frohnen and Carey’s is that both ground their argument about the Founders and the Constitution in the Federalist Papers. In the case of Carey and Frohnen this choice is too limited given their underlying argument, even as it raises questions about the centrality of the Federalists in American Constitutionalism. But this similarity between the two books highlights a profound difference on the American right about the nature of the Founding: did the Founder’s Constitution reflect a deeply communitarian self-governing tradition or a Lockean individualistic liberalism? It appears that advocates of each draw from the authority of Hamilton and Madison.

Carey and Frohnen essentially find in the Federalist Papers an endorsement of longstanding Anglo-American common law and evolving constitutional morality as applied to the Constitution that emerged out of the convention in 1787. In this sense Hamilton and Madison provide a traditional defense of a novel instrument, applying longstanding principles to new circumstances. On this central point—that the U.S. Constitution incorporated longstanding Anglo-American traditions of self-governing communities—Carey and Frohnen are, in my view, correct. And because I side with them on this question I suggest that Murray and the libertarian understanding of the Founding is tendentiously classically liberal.

Whether the Federalist Papers ought to be such a central vehicle for understanding either the Constitution or the larger social, cultural, and intellectual matrix of this period is a different question. Certainly Madison and Hamilton were in the broad Anglo-American conversation about everything from popular sovereignty to limited government, but that they were pushing the boundaries of inherited communal traditions of self-government and therefore offer contemporary libertarians a presentist reason to point back to them as interpreters of the Constitution. The historical and empirical problem, of course, is that the complexity of the Founding era, the diversity of region, the remarkable localism of perspective, and yet the richness of a common intellectual culture, all make it impossible to present a plausible historical account of the meaning or purpose of the U.S. Constitution based on a series of polemical essays, no matter how brilliant. However challenging the task, Frohnen and Carey’s argument needs a much wider, more empirical, historical base to demonstrate what I think is true—that late eighteenth-century America was a social order deeply rooted in the common law and dissenting Protestantism, and was among the richest associational societies in modern history. This social order, as Frohnen and Carey argue, is the context for understanding the U.S. Constitution. This context does not lend itself to a simplistic Lockean reading of America’s founding or culture.

The virtue of this book is not, therefore, in its analysis of Hamilton and Madison (despite Carey’s long and brilliant career of interpreting the Federalist Papers) but in the way it captures the American instantiation of English principles, how those principles emerged out of long experience and yet gained a kind of intellectual coherence at the time of the Founding, and how progressive ideas have altered the meaning and practice of the American Constitution. Frohnen and Carey’s book is, in some ways, an intellectual archeology that seeks to uncover something hidden by decades of intellectual neglect as well as by social (they do not explore economic and technological) changes. Unlike archeology, however, these authors hope that by uncovering what has been hidden their book will serve to recover it—and whether that is possible is, of course, a basic question of our time for conservatives.

But recover what? Frohnen and Carey’s essential contribution to the act of recovery is to remind (or instruct) the reader in the meaning, the definition, of “law” and of “constitution.” When uncovering the meaning of “law,” the authors write: “We seek to reestablish the long-held [belief that] … the rule of law is governance according to settled norms; it is valuable because it establishes predictable order, allowing for the pursuit of higher political ends as well as basic human flourishing.” Therefore law is not the source of higher-order goods, but rather the means of pursuing those goods. Law is normative in the sense that it reflects and sometimes expresses (or crystalizes) social norms. Rooted, therefore, in concrete social experience, laws emerge out of existing social arrangements and practices. Particular and imperfect, these laws reflect “the integrations of historical expectations—rooted in circumstance and practice—with permanent principles stemming from the order of reality, or natural law; it is best understood as historically grounded normative reasoning.” A precise understanding of the relationship between Common and Natural Law is not something that this book does adequately.

This Common Law understanding of law stresses order and orderliness and engenders support from those under the law because the law issues from them out of their experiences with reality as encountered in concrete circumstances. But the various alternative conceptions of law that have emerged in the American context stress the power of law to shape or mold society. Law, as altered by these new conceptions, now aims at something rather than reflecting something and thus issues from attractive (even seductive) and abstract ideals of justice or the Good. Law as a means of transformation is radically different from law as an orderly expression of norms and values. And the beautiful vision, untainted by real human experiences in messy and specific conditions, leaves advocates of social justice with a moralistic justification for the use of law as force to rearrange the social structure of society.

Similarly, the Founding conception of the Constitution as a mediating arrangement (and here the Federalist Papers are particularly useful) among “primary social grounds and institutions” has been largely overturned in favor of the Constitution as a “command” document that empowers the government to use its power to serve ideals or ends that the interpreters deem worthy.

Frohnen and Carey explore the logic of these differences as well as provide an account of the transition from the original conceptions of law and constitution to the now-dominant social justice model. This account is insightful and readers—especially those who are younger and who are seeking to understand the nature of their regime and how it has changed—ought to attend assiduously to the details. The failure to include any serious examination of profound social, economic, and other changes associated with the Industrial Revolution and other modernizing forces is understandable given the more limited purpose of the book, but it begs for a serious companion work on how to think about the way these fast-moving changes in economic and social life altered the experiences of the American people.

The larger purpose of Frohnen and Carey’s book, however, is to explain the U.S. Constitution as an expression of a deeply rooted Anglo-American tradition. By doing this they mean to offer a means of reclaiming the “constitutional morality” appropriate to the Constitution as written and designed. This constitutional morality refers to specific virtues of those who play specific roles and bear certain delegated powers under the authority of the Constitution. The constitutional morality of a Supreme Court justice requires that she limit her role and discharge her constitutional obligations faithful to the roles and obligations provided by the Constitution. The virtues of a Congressman would differ from the Supreme Court justice because he would play a different role and have different powers, but the two government officials would share the constitutional morality that requires fidelity to the limited and designated sphere of their actions.

“Living Constitution” and Social Justice advocates have, over the course of the last century, created a new constitutional morality that is oriented not to the authority of the Constitution but to the dictates of a higher good that requires government officials to understand the Constitution as an empowering rather than a limiting document. The details matter, because the history of this development is filled with intellectual developments and real-world crises and human choices that create new political incentives and government structures. The complexity of this story then warrants a sense of hope because the very contingency of historical events leaves one immune from the enervating “arc of history” determinism that has become so politically effective in recent years—particularly for young people who fear not being on the “right side of history.”

What is important for the purpose of this review is that over time the dominant interpretation of the U.S. Constitution viewed the powers of the Federal government generally, and the Congress more specifically, as expansive with regard to reasonable actions that one might construe as being in the “general welfare.” Expansion of the power and reach of the Federal government through war and depression only prepared the ground to accept the power of Congress to declare the government obligation to do this or that good, and then to delegate the means of accomplishing rather vague goals to an agency under the direction of the Executive branch. The subsequent expansion of regulatory power, spread across many administrative units, possessing the power of law without the sanction of law, created a maze of regulations and laws beyond the reach of the people to make or amend.

This Congressional delegation of power expanded dramatically the role of the presidency and encouraged the use of diverse and dubious powers, from executive orders to consent degrees. The regulatory state under which we currently live facilitates the use of governmental power disconnected from consent even as it produces enforcement mechanisms that give these “quasi laws” a capricious quality.

Frohnen and Carey do not object to the administrative state as much as to the way it has developed outside of, and in direct contradiction to, the Constitution. This is not a book that offers a specific course of action to remedy this current lawlessness or a means forward to revive constitutional morality. In fact, the authors dismiss most ideas to address these problems as unlikely to make a difference. The problem, it turns out, is much deeper.

The essential claim that conservatives make about the Constitution is that it issued from the “unwritten constitution” of customs, mores, habits, and values. More than that, the norms of the living society during the age of the Founding was one that expressed in concrete forms the ontological orientation and the cultural commitments that defined them as a people. This included a rich English tradition of the common law as well as one hundred and fifty years of experiences of self-governing Englishmen in the colonies. It included widely shared Protestant views about human nature and covenanted relationships. But as important as all of those, the American people lived richly associational lives—living, learning, and validating daily the acts of self-rule practiced by these associations. The unwritten constitution at the end of the eighteenth century was made up of this common heritage, the diversity produced by a profound localism, and the robust involvement of people in a communal life.

What is the unwritten constitution of our time? Until we understand this question, in all its complexity, we cannot offer a truly conservative response to the progressivism of our time. 

Ted McAllister holds the Edward L. Gaylord Chair and is an associate professor at the School of Public Policy at Pepperdine University.