In this edition of Liberty Matters, Adam MacLeod, Professor of Law at Faulkner University, Jones School of Law, considers the English constitution of Walter Bagehot. Bagehot’s constitutionalism is not just a theory of institutions. It is far more radical. It concerns what it means to be human. At stake is the question whether a people can govern themselves or instead must be ruled by their intellectual superiors. Bagehot’s constitutional anthropology matters because Bagehot’s constitutionalism is now our constitutionalism. The ascendance of the administrative state, rule-making and adjudication predicated on expert insights, legal positivism and judicial supremacy, and many other features of American constitutionalism that are now taken for granted in our law schools, policy schools, and bar associations are rooted ultimately in the concept of human nature that Bagehot articulated.
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Lead Essay: A Macleod, “Bagehot and the Causes of Our Crises” [Posted: Jan 3, 2020]
Adam J. Macleod is Professor of Law at Faulkner University, Jones School of Law and the author of Property and Practical Reason (Cambridge University Press, 2015).
David Wootton is Anniversary Professor of History at the University of York.
Bruce Frohnen is Professor of Law at Ohio Northern University. His most recent book, written with Ted McAllister, is Coming Home: Reclaiming America's Conservative Soul.
James R. Stoner, Jr. is the Hermann Moyse, Jr. Professor and Director of the Eric Voegelin Institute in the Department of Political Science at Louisiana State University. He is the author of Common-Law Liberty: Rethinking American Constitutionalism (Kansas, 2003) and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (Kansas, 1992).
Parliamentary battles over Boris Johnson's Brexit efforts and conflicts between Donald Trump and career officials in the branch of government he formally leads are historic events, perhaps even constitutional crises. But they are effects, not causes. They reveal structural fractures in our constitutions that have long divided rulers from the ruled.
Johnson and Trump claim mandates from ordinary people who want to wrest control of their lives away from far-off elites. Legislatures have refused to do the job, and the courts are on the side of the elites. But even Johnson and Trump defer to questionable exercises of government power. For example, they both have been compelled to surrender to suspect acts of judicial supremacy—Johnson after the U.K. high court condemned his attempt to prorogue Parliament; Trump when faced with nationwide injunctions issued by U.S. District Courts. Without doing something truly radical, such as flouting a procedurally-sound judgment, neither was able to act to the full extent of his power.
Indeed, despite the heated controversies they occasion, neither Johnson nor Trump are acting as radically as their opponents claim to fear, nor as their supporters might hope. Neither is likely to do lasting injury to what Philip Hamburger aptly calls "the government's primary mode of controlling" citizens: administrative rule. Nor are they challenging the equally persistent problem of judicial supremacy, nor the constant flow of authority from local institutions to central powers.
Nevertheless, traditional conceptions of executive and legislative powers are breaking down. Trump and Johnson have been opposed by their legislative assemblies, which are supposed to be the institutions in which the people exercise self-rule. And both operate within novel constraints on executive power. Johnson is constrained by a 2011 reform that curtails the prerogative power of the Prime Minister to dissolve Parliament. And Trump's mandate is to de-claw the branch of government that he leads, contrary to the official self interest that the framers assumed would motivate the checks and balances of separated power.
Our institutions have failed. But the problem is also more fundamental. Missing is any consideration of the rule of law, in the comprehensive sense of law's supremacy over both government and the people. All law is now politics. Our constitutionalism is broken not only because we've lost the separation of powers but also because our governing elites are committed to a constitutional anthropology—a view of the kind of persons who live under constitutions—that is inherently inimical to self-governance, while people crave liberty (not always with responsibility to law).
The original causes of our current crises can thus be found in the nineteenth-century jurisprudence of positivists and pragmatists. These include Walter Bagehot's The English Constitution. Bagehot redefined fundamental, constitutional concepts for both the United Kingdom and United States. His account is now conventional wisdom. The English constitutional scholars A.V. Dicey and William Holdsworth both took Bagehot to be the leading constitutional theorist of the modern era, and even Bagehot's critics acknowledge that his is the "most oft-quoted work on the cabinet system" of government. Woodrow Wilson constructed his theory of government on Bagehot's methods, his conception of a constitution as a living system, and his idea of a fusion of executive and legislative powers.
The Anthropology of a Living Constitution
Bagehot is best known for his theory of "single sovereignty," his idea that the English Constitution, a living thing, evolved to fuse the legislative and executive powers in the Cabinet. Wilson admired also his advocacy for an effective (rather than limited) government. Bagehot taught that the English constitution is effectual because the "efficient" part of English government—the Cabinet in Parliament—leverages the peoples' deference to the "dignified" parts—"[royal] courts and aristocracies." To be successful, constitutions in more egalitarian societies (such as the United States and Australia) must also, by some means, learn first to "gain authority," then to "use authority."
However, Bagehot's constitutionalism is not just a theory of institutions. It is far more radical. It concerns what it means to be human. At stake is the question whether a people can govern themselves or instead must be ruled by their intellectual superiors.
Bagehot's constitutional anthropology matters because Bagehot's constitutionalism is now our constitutionalism. The ascendance of the administrative state, rule-making and adjudication predicated on expert insights, legal positivism and judicial supremacy, and many other features of American constitutionalism that are now taken for granted in our law schools, policy schools, and bar associations are rooted ultimately in the concept of human nature that Bagehot articulated. That concept has no place for the rule of law.
A Constitution to Rule the Wild
"The most strange fact, though the most certain in nature, is the unequal development of the human race." Try any informed opinion on the housemaid or the footman, Bagehot proposed, and you will find that what all enlightened people know to be obvious is, to those who are less fully evolved, "unintelligible, confused, and erroneous." Plain facts refute "notions of political equality." England especially has "whole classes unable to comprehend the idea of a constitution—unable to feel the least attachment to impersonal laws."
Here is the core of Bagehot's constitutionalism. The "mass of uneducated men" cannot be trusted to choose their rulers, Bagehot insisted, for they would "go wild." Good governance requires a "calm rational mind," which is preserved by the "apparent existence of an unchosen ruler." The objective therefore is to keep the "poorer and more ignorant classes" under the power of their royal "superstition"—the "illusion" that reigning and governing are the same thing—so that they remain in the habit of obeying (Jeremy Bentham's explanation for legal obligation, though Bagehot does not give him credit). Thus, Parliament and the Cabinet, the real rulers, efficiently wield the deference of the governed for ends that only the elite can discern, by means that only they are clever enough to devise in a complex and evolving world.
Bagehot thus supplanted the core commitments of English constitutionalism with radical ideologies. Those ideologies now seem commonplace thanks in part to Bagehot. He abjured the ancient usages that people have settled and promulgated by their practical reasoning and actions and the natural-law principles that universalize our moral concerns. He lamented the freedom of Britain's local governments and corporations ("childish things"), which frequently failed to do the bidding of central government. And he warned against the "dangerous division" of powers in "a federal government" that leads to dreaded "dead-lock."
In short, Bagehot rejected the connection between human law and human reason.
A fundamental principle of English jurisprudence before Bagehot (admittedly honored in the breach almost as much as in practice) was that humans are all created in God's image with the capacity to choose and to reason, and can be assisted by customs and laws that are just and which secure natural liberty. The presumption of liberty in English law, which became part of America's constitutional creed, rests in the confidence that people are no less able than their rulers to discern what is good and to decide what is right.
English and American jurists trained in the Hebrew, Christian, and natural law traditions, such as John Selden, Matthew Hale, and Joseph Story, taught that natural justice is available to the minds and actions of all people by the exercise of reason and by reference to revelation. Though the artifacts of human law can be understood only by sustained study, anyone can generate them. Ancient customs and inherent wrongs are law because the housemaid and the footman can be equally adept at practical reason as the most learned aristocrat. Practical reason fails not primarily because people lack theoretical understanding but because people deceive themselves. They sin. And officials and educated men are not immune from the failures of will and reason.
Other jurists, such as Adam Smith and James Madison, were more skeptical of natural authority. They located the efficacy of reason in its pursuit of personal interests, and they doubted the efficacy of central powers to promote disparate interests. People act rationally to advance their interests, and officials overstep when they act for some collective end.
Despite their differences, those thinkers shared the confidence of the influential English jurist William Blackstone that people are generally competent to pursue their own "true and substantial happiness," and that the private, customary, and duly-enacted laws of the people are just products of self-governance and are entitled to deference. Scientific expertise is not a source of competence to plan the lives of others.
Those commitments to self-governance do not appear in Bagehot, not even for the purpose of dismissing them. Instead, Bagehot chose a softer target. He denigrated the notion, which he supposed "pervadingly latent" in older political thought, "that all human beings might… be brought to the same level" of political responsibility. (Possibly his target was Benjamin Disraeli.) The "plain facts" and scientific observation had discredited this "notion," and teach us instead that the lower and middle orders of society are comprised of crude and uncurious people, "scarcely more civilized than" our ancient ancestors, who lived "dismal" lives, "without culture, without leisure, without poetry, almost without thought—destitute of morality, with only a sort of magic for religion."
These plain facts explain the deficiencies of republics, Bagehot insisted. In contrast to England, whose people obey the government because of their superstitious attachment to the Queen, republics must "appeal to understanding." A constitution that preserves a stratified society will be superior "so long as the human heart is strong and the human reason weak."
The obvious solution to weak reason is to educate people. But determinism permeated Bagehot's mind, and he was skeptical of civil society, so he limited civic education to Parliamentary speeches for the purpose of manipulating voters. From age 16, Bagehot had studied at what a biographer called that "Godless institution," University College, London. He appears to have absorbed its reductionist pragmatism thoroughly. A classmate later recounted debating with Bagehot "whether the so called logical principle of identity (A is A) were entitled to rank as a law of thought or only as a postulate of language." It seems that Bagehot and his classmates anticipated post-modernism by more than a century.
Bagehot also embraced scientistic materialism. He described physical science as "the first great body of practical truth provable to all men." (The premises of philosophy do not count, for they are "unproved.") And he explained the supposedly advanced evolution of the higher classes with the assertion that "the brain of the civilized man is larger by nearly thirty per cent than the brain of the savage."
Bagehot's thin sense of practical reason now predominates at elite universities throughout the English-speaking world. Of course, his is not the only ideology. The temptation to deprive others of their self-governance is universal. Some Calvinists have claimed a special knowledge of the right (unavailable to the depraved) that justifies a sort of authoritarianism. And now some Roman Catholics advocate for an Integralism that approaches socialism.
Nevertheless, the prospects for a Calvinist or Catholic theocracy are dim at present. The most imminent threat to ordered liberty today, as in Bagehot's day, comes from a class of cultural elites, educated at universities that are open only to a privileged few and increasingly closed to ideas about natural law, natural rights, customary law, and the other conditions of self-governance. Bagehot's constitutional anthropology, imported into America by Woodrow Wilson and passed down by his ideological successors, is tailor-made for such places.
A Constitutionalism of Deference
Bagehot was convinced that inequality of refinement and understanding inevitably grows as a society evolves toward prosperity. If the lower classes gain political rights then they must be controlled. A "perfect constitution" would give to the wealthy and idle class at the top a disproportionate influence "to make its fine thought tell upon the surrounding cruder thought." Regrettably, Bagehot thought, that ship had sailed. Expansions of the franchise in 1832 and 1867 disenfranchised the enlightened classes, and the slide toward popular government could not be arrested. But Bagehot argued that the ideal result can be accomplished by a constitution of deference, by which the majority "abdicates in favor of its élite, and consents to obey whoever that élite may confide in." The abdication is preserved by the "duty to obey" the Queen and the "obedient, unquestioning deference" paid to the aristocracy.
The Commons wields this deference through the Cabinet, where legislative and executive powers are fused. This fusion is necessary because rapid and frequent legal change is the order of business. In primitive societies, Bagehot taught, the purpose of legislation is not to change the law but to preserve it. For ignorant people who cannot help but make bad laws, "it matters much more that the law should be fixed than that it should be good." But now skepticism about legal change is "obsolete." Advanced civilizations (such as nineteenth-century England) have a "diffuse desire" for "adjusting legislation," which will change the law to meet the "new wants of a world which changes every day."
Bagehot did not interact with the strongest arguments against his theory. As a later theorist put it, Bagehot demonstrated "sublime disregard" of all the relevant writings of the previous half century. Nor were his ideas original. He simply expressed the ideologies of his day. The conceit of such ideologies was to debunk what Bagehot dismissed as "literary theories" and to replace them with pragmatic attention to the business of scientific law-making.
Indeed, in the context of his intellectual milieu, Bagehot seems moderate, almost conservative. A central premise of his project is that the Crown and Lords are indispensable to English constitutionalism (as long as they remain mostly passive), and sometimes even useful. He extolled the virtue of the crown as an institution of memory and independent wisdom, and was skeptical of new "burning ideas (such as young men have)," which are "mostly false and always incomplete." He preferred organic change to rapid reform. And in explaining the weakening of the crown's prerogative powers, he appealed to the ancient doctrine of desuetude.
Yet no truths endure in Bagehot's account. Wisdom consists in getting the policy right for the present moment, which too shall soon fall prey to desuetude. And Bagehot's moment was increasingly egalitarian. William Holdsworth observed that the traditional elements of Bagehot's constitutionalism quickly became obsolete in the "ensuing age of socialism," which requires for the realization of its ideals a "trained bureaucracy" to consolidate power.
Most fatally, Bagehot ignored law, understood in its comprehensive sense as a reason for action that obligates everyone, sovereign and citizen, secular and religious. Law appears in his account as either a mere product of government action or "invincible prescription" on divine authority; law as such does no work. For Bagehot, personalities and the interactions of great intellects make constitutions. It is not important to consider a "living constitution" from the perspective of those who view it as obligatory—"irrelevant ideas." Rather, the task is to lay bare its "actual work and power" by careful observation of its "living reality."
Bagehot's thin concept of practical reason left no room for the rule of law. Following Bentham, Bagehot proposed to replace governance—an activity people do together according to law to bring about the common good—with control—an activity that some people do to other people to get their way. As a later constitutional theorist observed, the old idea of legislative and executive powers was situated within a theory of government under law, whereas Bagehot's fusionism is only a theory of government.
Bagehot's accomplishment was to express the intellectual fashions of his day in style. The book is full of pithy lines: "The sovereign power must be come-at-able"; a progressive department head "brings the rubbish of office to the burning-glass of sense"; "of all odd forms of government, the oddest really is government by a public meeting." Some are genuinely funny, as where Bagehot satirically imagines a campaign in Parliament to get a child admitted to an asylum. "[Y]ou may see 'Vote for orphan A' upon a placard, and 'Vote for orphan B (also an idiot!!!)' upon a banner."
By his wit and able pen, Bagehot evangelized for pragmatic positivism. Woodrow Wilson later imported Bagehot's command-and-obey concept of government into American constitutionalism. Wilson shared Bagehot's fear of popular government and legislative supremacy. Like Bagehot, he also assumed the positivist and pragmatic jurisprudence expounded by Bentham (and his American counterpart, O.W. Holmes, Jr.). Bagehot thus hovers over American Progressivism.
Many elites today attribute their recent political losses to what they refer to as "populism," "nationalism," and "anti-transnationalism," as if the average supporter of Donald Trump or Boris Johnson were working from some ideological manifesto. But in fact, most of the sentiments that elites fear amount to nothing more insidious, and nothing more organized, than the confidence of the housemaid and the footman that they know what is good for them and can tell the difference between right and wrong. They might defer to a Queen or to a wise leader. They might even cut a deal with a brash celebrity. But they see no reason to defer to expert elites who think them incapable of practical reason. They know better.
[1.] Ned Swanner provided helpful research assistance. Micah Watson graciously commented on a draft. The errors are my own.
[2.] Philip Hamburger, Is Administrative Law Unlawful? 1 (2014).
[3.] M.J.C. Vile, Constitutionalism and the Separation of Powers 246 (2d ed., Liberty Fund 1998) (1967).
[4.] Woodrow Wilson, Congressional Government (1885).
[5.] Walter Bagehot, The English Constitution 5, 143, 154-56 (Paul Smith, ed. 2001) (1867) [hereinafter, TEC].
[6.] TEC, at 6, 36-37, 116.
[7.] Id., at 24-25, 104-05.
[8.] TEC, at 73, 141, 150-54, 181-82.
[9.] Holdsworth reports that Disraeli supported the Reform Act 1867 in part because he believed that expanding the franchise would raise the masses to a "natural aristocracy." 14 William Holdsworth, A History of English Law 156-57 (1964).
[10.] TEC, at 6-7.
[11.] Id., at 37.
[12.] Norman St. John-Stevas, Walter Bagehot 5-6 (1959).
[13.] Walter Bagehot, Physic and Politics in Stevas, at 445, 448, 452.
[14.] TEC, at 28-30.
[15.] Id., at 38, 71.
[16.] Id., at 26-27.
[17.] Vile, at 248.
[18.] TEC, at 49, 55-57, 59-63, 105-06, 163-67, 184.
[19.] 14 Holdsworth, at 138.
[20.] E.g. TEC, at 172, 176-77.
[21.] TEC, at 3, 193.
[22.] Vile, at 252.
[23.] TEC, at 74.
[24.] Id. at 136.
[25.] Id. at 99
[26.] Id. at 101.
[27.] Vile, at 294-98.
Adam MacLeod and I come from very different intellectual traditions: he is a lawyer, I am an historian; he is a citizen of the United States, I of the United Kingdom. We have a common text in Bagehot, but we respond very differently to that text. He suggests that at the moment we face a similar political situation, but in his view our institutions (both British and American) have failed, while my present, tentative view is that British institutions have performed remarkably well at a time of great difficulty, and American institutions have been found severely wanting.
I want to address in turn three issues raised by MacLeod: constitutionalism and the rule of law; Bagehot's anthropology; and the significance of Brexit.
We need to begin by clarifying the term "constitution." It is important to see that Britain has never had a constitution in two important senses: 1) we have never had a written constitution and 2) no feature of our political system is entrenched in such a way that it cannot be changed by an Act of Parliament--indeed, if the change was proposed in an election manifesto of the governing party, by a simple majority in the House of Commons. Thus it is a fundamental feature of the British constitution that it is constantly subject to change, and there are no limits on the changes possible. Bagehot understood this very well, and knew that he was writing during a period of profound constitutional change as a consequence of the expansion of the franchise. He also understood that underlying this constitutional change was the enormous economic transformation represented by the industrial revolution.
The British constitution, such as it is, is founded on a single principle: the sovereignty of Parliament. Thus the Supreme Court recently ruled that, under existing law (as the Court rather surprisingly interpreted it), the government cannot prorogue Parliament in order to avoid parliamentary scrutiny. But there is no doubt that a simple Act of Parliament could give the government this power, or could indeed abolish the Supreme Court (which was only established in 2009). By Act of Parliament the United Kingdom became part of the European Union and accepted the overriding authority of European law and European courts; but by simple Act of Parliament it can (and now will) withdraw itself from European law and European courts. (The matter is more complicated in international law, as there are treaties involved, but not in domestic law.) The only limits on the powers of Parliament are self-imposed and revocable.
Because under the British system there are no fixed limits on government power, and because power is consolidated in the hands of whoever is able to command a majority in the House of Commons, the system relies on informal constraints: traditions, public opinion, deference, expert authority, bureaucratic inertia, and so on. One of the basic reasons why the British have never felt at home in the European Union is that the European Union aspires to be a law-based system, while in Britain laws are fundamentally instruments for the execution of the will of Parliament, so that in Britain politics, not the law, is supreme.
MacLeod seems to think there was a time when people (in both Britain and the US) believed in the rule of law, and our institutions are now failing us because we no longer have this belief. As an historian I find this a most peculiar claim. The right to counsel in criminal cases was only firmly established in England in 1836; the adversary system of trial only developed over the century from 1680 to 1780. The right of appeal in criminal cases on the basis of new evidence was not established until 1907. Thus what we think of as fundamental features of the law are in fact often of comparatively modern invention. Since the Police and Criminal Evidence Act of 1984 the right to silence has been effectively eliminated. Since 2003 double jeopardy has been permitted in certain cases. What were only recently held to be issues of principle are now waived aside as inefficient and impractical. Moreover, if we step back and look at a larger picture, there continue to be fundamental differences between adversarial (or common law) and inquisitorial (or Roman law) legal systems.
Thus for a British historian "the rule of law" appears not as a fixed set of beliefs but (like the British constitution) a system in constant flux. The rule of law means quite different things for different nations, and in different periods. Lawyers have a professional commitment to turning the law into a rational, coherent system, the embodiment of eternal truths; historians have an opposing commitment to treating the rule of law as a set of local practices and arbitrary conventions.
I turn now to Bagehot. MacLeod wants to lambaste Bagehot for his views on human nature, and there's no doubt that these, particularly as expressed in Physics and Politics (1872) are reprehensible. But it is crucial to see Bagehot's book as a product of its time: it was first published in 1867, the year in which the franchise was extended to the urban male poor, and revised in 1872. It was thus written at an historical turning point. The Reform Act of 1867 was followed by two crucial pieces of legislation, the Education Act of 1870, and the Ballot Act of 1872: the first was foreseen in Bagehot's text and the second was not. The Education Act introduced universal elementary education: a response, in part, to the fact that the Reform Act had enfranchised many people who were illiterate. The Ballot Act was designed to break the power exercised by employers and landlords, particularly in the countryside, over their dependents.
Bagehot was acutely aware of the difficulty of having an extended franchise with voters who were uneducated and whose votes (particularly in rural districts) could be suborned by their social superiors. He was also, quite naturally, worried about the possibility of class warfare: apart from Chartism in England, he surely also had in mind the revolutions of 1848 on the Continent. Bear in mind, the Communist Manifesto was first published in 1848; the first volume of Das Kapital in 1867. Bagehot was writing at a time when across Europe ancient constitutions had been destroyed by revolution, while in Britain the semblance of the ancient order survived. It is not at all surprising that he wanted to stress the role of deference and tradition in making this survival and adaptation possible.
This brings us to the causes of our present discontents. Here I partially agree with MacLeod. Recent political developments in the USA, the UK, and across Europe have demonstrated that our political, educational, and media elites have lost touch with the concerns and priorities of a large section (in some contexts a majority) of the population. This has brought about an ongoing political and indeed constitutional crisis, and this, it seems clear, results from the long-running economic revolution which we loosely refer to as "globalisation"
Writing as I do, two weeks after what may prove to be the most important British election since 1945, what strikes me is not the failure of the British political system, but its success. Despite the massive opposition of the elites to Brexit, we are leaving the European Union. An extraordinary upheaval has seen vast swathes of the country, particularly in the Midlands and North, switch from voting for Labour to the Conservatives. A constitutional crisis, where the government could not command a majority in the Commons for its central policy, that of leaving the EU, and where the rules of political engagement were in flux as a result of the unpredictable and unconventional interventions of the Speaker and the Supreme Court, has been resolved by the restoration of what Bagehot called cabinet government: a united governing political party with a majority in the Commons and undisputed control over the executive. And, although Johnson's opponents seek to characterise him as far-right, all this has been achieved without the emergence of right-wing racism and crypto-fascism of the sort which is common elsewhere in Europe. (I leave to one side the emergence of an appalling left-wing racism in the form of anti-semitism; fortunately this clearly weakened rather than strengthened support for Labour). Indeed, although political divisions are bitter, there are signs of a new consensus which can be seen in the adoption by the Conservative party of policies which had been advocated by Labour -- increased expenditure on the NHS, government intervention to spread wealth outside the big cities, and so forth. The apparently risible Labour claim to have won the argument while losing the election points to the important truth that British politics is not becoming increasingly polarised, but rather seems to be settling around a new consensus.
We are, as Bagehot was, in the midst of a period of rapid and unpredictable change. He was seeking to reassure his readers that such change was manageable and need not lead to crisis, conflict, and revolution; and his reassurance turned out to be well-founded. Our political institutions are now once again being tested to breaking point. We have to cope with a conflict between "the people" and "the elites." We need to ask ourselves how our elites have so lost touch with life outside the big cities, and why our elite educational institutions (which play such an important role in shaping the elite world view) have become increasingly homogenized in the range of opinions they foster and increasingly conformist in the values they inculcate.
But if we look at the crisis as it is unfolding in the USA and the UK it is surely apparent that cabinet government has enormous advantages over the separation of powers. Since the vote to leave the EU in 2016 we have had three Prime Ministers without any need for impeachment. We have had radical shifts in policy because (despite the Fixed-Term Parliaments Act of 2011) again and again it has been possible to ask the electorate to break the deadlock. And we have seen our two great political parties fundamentally remake themselves by internal revolution, rather than falling back on appeals to their existing base. We have also seen a new version of Shakespeare's story of Prince Hal: Boris Johnson, dismissed as unfit to rule only three years ago because he was more interested in playing cricket with the aristocracy than working out the policies for a new government, is proving himself, to the surprise of many, to be a serious political figure. Johnson has grown into office, while Trump has shrunk the office he holds.
MacLeod says there are no enduring truths to be found in Bagehot. We can surely agree on Bagehot's faults. But we would do well to imitate his attempt to make the best sense we can of a current crisis. We need to recognize that in the long run we need an elite that can command the consent of the electorate. And we need to acknowledge (as I would not have been willing to a few years ago) that the British political system, because it is adaptable and flexible, because it is convention-based but not law-based, has great advantages over the American when it comes to responding to a crisis. Perhaps we have just been lucky in that we have recent experience of its strengths, and not so much of its defects, which would quickly become apparent if liberty was under threat from a domestic majority.
The hope of the framers of the American Constitution was that the United States would be relatively protected from external shocks by the Atlantic Ocean. Globalization means that the Earth has now become a single economic system, and that shocks are therefore now transmitted almost instantly from one side of the globe to the other. Mere slogans (Make America Great Again, "trade wars are easy to win") will not alter that fact. We should not forget that Bagehot was not only a student of politics; he was also the founder of The Economist journal, and the author (in his book Lombard Street, 1873) of the doctrine that in any financial system there must be a lender of last resort. This, at least, is an enduring truth. Since the euro was founded as a currency without a lender of last resort, we can happily claim Bagehot for the side of Brexit.
Central to Adam MacLeod's argument is a statement that should be axiomatic: Self-rule requires the rule of law, and law cannot rule unless it is supreme over both governors and governed. MacLeod is right to point out that legal positivism has undermined our ability to recognize the necessity of higher law, thereby helping judicial and other elites seize arbitrary power. The question is, how are those who value self-government to restore higher law understandings among the people, and especially among the lawyers who traditionally have been its guardians?
Today law is seen as mere power, and natural law, in the traditional sense of permanent, universal truths of right and wrong, is seen as mere myth. This is unfortunate for ordered liberty because constitutional law has meaning, can establish and maintain limited government, only when it is seen and practiced as a form of higher law, obligatory as a matter of unchanging principle on both governors and governed. And constitutional higher law is no mere theory that can be safely manipulated for short term advantage. It is a hard won civilizational good, developed in tandem with deep cultural norms over centuries, that will crumble if left undefended.
Since early modernity, the rule of law has been under especially strong assault by partisans of "sovereignty." Most influential on the European continent, modern sovereignty was imported to Great Britain most famously by Thomas Hobbes. It may be summed up as the assertion that unquestioned supremacy must reside somewhere in all governments. It always has appealed to those who see politics' primary purpose as controlling an unruly populace. In the United States Hobbesian sovereignty found little purchase. The concept was neutralized by a constitutional higher law that separated powers along both horizontal and vertical axes and could be changed only by a supermajority of determined people.
But constitutional republicanism requires virtue. Only a people capable of self-restraint will hold governors to constitutional forms at the cost of satisfying their wants-of-the-moment. Over the last several decades, Americans' choice of government protection over freedom and equality over opportunity has increasingly empowered national elites to break the bonds of constitutional structure. Legal positivism was thus part of a broader corruption in the body politic. But this ideology of law as power was especially important because it undermined the norm of law-abidingness, thus producing judges who "say what the law is" in light of their own preferences, and encouraging government officials as a class to reject their constitutional duties.
Donald Trump's election was made possible by millions of Americans' shared revulsion at the smug overreaching of today's ruling classes. Sufficient numbers of ordinary Americans finally recognized the imminent danger to their way of life posed by would-be despots who despise the people's core values of family, faith, and local freedoms and pursue a future beyond human nature and social order. The people at last have begun fighting back in a struggle that lies deeper than law or politics, concerning the nature of society, the person, and reality itself.
Few lawyers or academics wish to engage such issues, instead preferring, like Bagehot, to dismiss or ignore them. Our cognoscenti believe that metaphysics is another word for religion, and that religion is at best a set of private beliefs and at worst the means by which ignorant masses oppress people like themselves. Among more reasonable lawyers, aversion to natural law reasoning has been strengthened by leftist judges' references to "natural justice" and "fundamental rights" when making law. A number of contemporary theorists also provide grounds for this prejudice. Some reduce natural law to a civil religion based on a few phrases from the Declaration of Independence. Others reduce it to a set of logical deductions from presupposed human goods that seem more a set of personal preferences than universal principles.
Simplified natural law gives way to judicial will as legal positivism aids those seeking to destroy our society. The latest wave of ideologues portraying law as mere power—identity politics radicals—show both the danger of calls to abstract principle and the incoherence (and lust for power) at the heart of "value free" analysis. Under the guise of "social justice" they would destroy law and replace it with a system in which administrators distribute life chances according to the place one's group holds on the current pyramid of victim status. The inevitable result can be summed up in the word "Venezuela."
Such concerns are relevant only if there is, in fact, a discernible order to our existence, accessible to human reason, that can guide us in judging how best to rule ourselves consistent with the common good. There is. But to see it interested parties first must unlearn contemporary prejudices and remember some history.
Aversion to natural law reasoning rests on the false, positivist presumption that law is a rule of action imposed by a lawgiver. Hence natural law must be a code from God, or nothing. But this is not how law works. Most law is customary; it grows from human interaction in which courts participate by working to vindicate the reasonable expectations of the parties. Natural law merely points to the assumptions (e.g. force cannot produce a binding promise) that practical reason and experience tell us underlie decent human interactions. One need not even recognize a transcendent God to observe that there is a moral order to existence. At its most basic, natural law is the commonsense recognition that virtue supports human flourishing as vice stymies it.
Of course, a true relativist will ask how we know what virtue and vice truly are, dismissing any generalized answer as mere abstraction. But all goods and truths are instantiated in history. Beauty is not just a category but something we find in a painting or landscape, as justice is found in the actions of an honest judge or business partner. Likewise, the moral truths of natural law are made concrete in traditions—sets of customary rules and practices that shape the minds of judges, legislators, and citizens, to be used according to the task at hand.
Legislators and citizens have a direct relationship with natural law. Within our tradition, legislators must make law. Citizens must participate in social life and the transmission and growth of custom in light of their understanding of right and wrong. Judges have the job of adjudicating under law. Thus, judges properly utilize natural law only in the limited sense of setting aside personal preferences in favor of the assumptions regarding human nature and the common good that shaped the text at issue and, where the common law has been allowed to survive, in the customs of the people.
The Ten Commandments provides a classic example of how natural law is "codified" in only a limited sense yet serves as the basis for the tradition of constitutional higher law. The Decalogue was a fundamental leap in being for the Israelites less because of its specific content than because of its source. Contemporary codes contained much the same material. Moreover, the Decalogue is rather general, leaving room for historical differentiation. For example, it does not forbid all killing, only murder. Murder has been defined differently—consider the duel and changing conceptions of self-defense—in accordance with culture and circumstance. Importantly, Judeo-Christian culture and law have been protective of innocents and hostile toward intentional cruelty, in accordance with our understanding of human dignity.
The Decalogue is unique and important because it came from a source higher than the ruler. It was supreme law, to which rulers and people alike would answer. As such it was foundational to both the rule of law and the natural law tradition. The Israelites "used" the Decalogue to order their common life, binding themselves in daily interactions and binding their rulers because they preceded rulers' proclamations in time and importance.
The line of development from Decalogue to modern constitutionalism is long but rather direct. The ancient Greeks, as Publius noted, had less to do with this development than many philosophers would like to admit. Greek regimes were liable to constant, murderous violence. The Greek polis or city community (there was no separate "state") exercised unlimited control over institutions and people, using law only as convenient. It was the Israelites who instantiated the rule of law. The practice was further developed by those pious (though brutal) Romans with their rights of citizenship, and then more fully in the diversity of powers, rights, duties, and jurisdictions that was Christendom. It was the determination to put an end to this diversity, which so limited royal and other powers, that fostered the call for sovereignty.
The framers of our Constitution self-consciously looked behind modern sovereignty to build on the tradition of constitutional higher law. We should not allow recognition that they were men of the (moderate) enlightenment to obscure the fact that they understood the cultural bases of self-rule. Nor should we forget that those cultural bases were embodied in very public expressions of religious belief as well as clear moral standards effected at the local level. The natural law is accessible to all. But only a flourishing, public religion can maintain the people's ability to recognize their own true dignity, rights, and duties.
[1.] John Finnis, Natural Law and Natural Rights (Oxford: 2011).
[2.] I think, here, of the relative hostility in the Western tradition toward honor killings, early attempts to limit and eventually eliminate torture, and the elimination of the Roman rights of the paterfamilias.
[3.] Space limitations prevent me from discussing the specifically religious importance of the Decalogue and how its religious norms bound the people to a particular understanding of the highest good (communion with God) and the manner in which it could be achieved within the community. A full understanding of natural law must include such fundamental considerations because they shape societies and souls, but it lies in the far background of the judge's understanding of law as such; it is not adjudicable.
[4.] Giovanni Sartori, The Theory of Democracy Revisited (Chatham House, 1987) 279.
Suppose one reads Walter Bagehot's English Constitution naively, at least the first time through, not from the perspective of our contemporary constitutional troubles nor by placing him in some historical school—"the nineteenth-century jurisprudence of positivists and pragmatists,"" suggests Adam MacLeod—but beginning with how he describes himself and the task he undertakes. Bagehot identifies himself as a Liberal, a member of a then-new, later dominant, now-defunct political party, but he is not writing a partisan tract. At least twice he refers to "political philosophy" as the perspective he takes, at least for a moment of analysis, detached from adherence not only to a political party but to a particular country, even though he identifies himself as an Englishman and is principally, though not exclusively, concerned with the English constitution.
I think he means, at least at the outset, to analyze the English constitution as Aristotle analyzed the constitutions of the Greek cities of his own era, treating the term "constitution" as Aristotle did his analogous term, "politeia," to describe who rules in the city, or rather, to identify what kind of people rule and the forms by which their rule is exercised. Bagehot mentions the Greek city and finds an interesting analogy between its development and the rise of modern politics, but he is also aware that a modern nation-state is not the same as an ancient polis, so his analysis of its form is not bound by Aristotle's terminology. Still, like Aristotle he treats the constitution as a political form, not a higher law; he is more concerned with who actually rules than with traditional practices; and he is particularly intent on praising the rule of wisdom, which, by its anchor in experience, its mastery of particulars, and its insusceptibility to being nailed down to rules, seems consonant with, if not the same as, classical phronesis.
At the outset, Bagehot contrasts his analysis with what he calls the literary theory of the English constitution—he doesn't name its source, but he seems to have in mind Montesquieu and Blackstone—which describes English government as based on two principles, the separation of powers and balanced government. However accurately this account may have explained British politics in the eighteenth century, it misunderstands the actual functioning of that politics in the nineteenth, particularly after the Reform Bill of 1832, which established the sovereignty of the nation, with the House of Commons as its instrument. More precisely, it established cabinet government, with Commons now to be understood as the elected body that elects and holds accountable the government, where the real power lies—so long, that is, as it retains the confidence of the nation. The old theory, or at least its principle of separation of powers, was adopted by the Americans and used to construct our presidential system, which serves throughout the book as a foil to Bagehot's cabinet government. The latter in almost every respect proves superior in his eyes, not only in bringing wiser men to power, but in encouraging them publicly to debate what policy would be best and thereby to form as well as reflect the public opinion of the nation. He is well-aware that the parliamentary and the presidential systems offer the world the great alternative models of self-government, and that the world is interested in knowing which would be more advantageous to adopt.
The brilliance of Bagehot's account is in his explanation of how the complex manners of parliamentary conduct serve at once to ensure the rule of the wise and the consent of the governed. Although in the literary theory a legislative body, Parliament in practice functions as an electoral college and an ongoing inquest, ensuring that able ministers are selected and then held accountable for their actions. It might seem irrational to shuffle portfolios among them, allowing them no time to develop expertise in the units they purportedly head, but in fact it ensures both that each administrative department has an able advocate in Parliament and reciprocally that it receives constructive criticism from the government. While election by the assembly might seem to make the executive too dependent—this was the Americans' reason for establishing a separate process—the ability of the prime minister to dissolve the house and appeal to the people in a new election reverses the direction of dependency, at least so long as the government is confident of popular support. (Bagehot would easily have predicted the 2011 Fixed Term Parliaments Act would wreak havoc in this finely balanced system.) As for the monarchy and the House of Lords, Bagehot calls them ceremonial rather than efficient, critical to the smooth functioning of the English system at the time, though he speculates as to whether analogous institutions could be created anew in countries without a feudal heritage. He lays out the advantages and disadvantages of having a constitutional monarch, weighing the charm of ancient tradition and its easy legitimacy against the danger, exemplified by George III, of a mad king; he endorses the creation of life peers to keep the second house active, useful, and accepted in a democratic age, but not to be imitated in the colonies, where an upper house draws political talent away from the representative body where it is most needed to ensure compromise and civil peace.
MacLeod quotes Bagehot's distrust of, not to say contempt for, the "poorer and more ignorant classes" whose attachment to the constitution comes not from their understanding of its rationality and balance but from the illusion of royal authority to which they cling. While this part of his theory indeed seems a bit precious, not to say precarious, dependent on the habits of deference in the people, I don't read Bagehot here as proto-progressive paternalist, for several reasons. First, he makes clear that Parliament represents the middle classes, adept at business and fully capable both of discerning their own interests and of choosing someone to express them. In America and in the antipodal colonies, where the task of building settlements in the wilderness imposed equality at the outset and thus implanted it in the culture, the middle class dominates society and politics unproblematically; the problem is the legacy of feudalism in Europe, though it has the advantage, at least for the time being, of making available for political service a highly educated aristocracy naturally adept at rule. Second, especially in the preface to the second edition, written after the further expansion of the franchise in the 1867 to include the working classes—and, he notes, the simultaneous disappearance of Lord Palmerston's generation of pre-1832 statesmen from the scene—Bagehot expresses his doubts about incorporating the working class voter without preparing him for the responsibilities of active citizenship. Here the parties earn his blame in the short-term, and his fear of subjecting the government of England to the prejudices of the working class is palpable, though not, I think, un-Aristotelian. For third, while Bagehot is clearly a man of the Enlightenment and is confident of the advances of a dynamic, modern society, he is not above expressing a healthy skepticism of the capacity of modern science to replace prudence in the governance of human affairs, or at least to suggest something is lost in modern discourse. After quoting Darwin at length, he writes: "I am not saying that the new thought is better than the old; it is no business of mine to say anything about that; I only wish to bring home to the mind, as nothing but instances can bring it home, how matter-of-fact, how petty, as it would at first sight look, even our most ambitious science has become." Whether his own political science confirms or by self-consciousness escapes this indictment is the question.
If pettiness is unworthy of a great mind or a great people, what elevates? MacLeod's attention to what Bagehot doesn't say—how in contrast to the English tradition before him, he says almost nothing of religion, or of natural law; how he treats American government as different only in its machinery, not in its understanding of natural rights—is suggestive, and less for the correction of Bagehot's attitude toward the poor, whom I think he believes will eventually be incorporated into modern society even in England, than for the discernment of what an adequate education in prudence entails. I admit I am skeptical when I read "Our institutions have failed." That's what leading political scientists were writing about the American presidency—and the British were writing of their own system—in the 1970s, and then along came Ronald Reagan and Margaret Thatcher, who showed that the institutions can indeed be made to work when aiming to achieve what they were designed for, not the solution of every human problem, but the support and defense of a free society. Liberals like Bagehot—or for that matter, James Madison or Alexis de Tocqueville—still have much to teach us about how our political institutions can work soundly to effect the adjustment of clashing interests in the name of justice and the general good, even when they have little to say about how freedom is grounded in the human good or risk descending into hubristic progressivism should they try. Or perhaps it is institutions such as churches and universities that have really failed—the ones responsible for guiding lives and elevating minds—and our political crisis is the consequence, not the cause. If that is Adam MacLeod's point, I agree.
[1.] Walter Bagehot, The English Constitution, 2d ed. (London: Oxford University Press, 1928 ), no. 5, p. 134.
[2.] Aristotle, Politics, book III, ch. 4 ff.
[3.] English Constitution, no. 9, p. 242 ff.
[4.] Ibid., no. 1, p. 2.
[5.] Ibid., no. 1, p. 11; no. 5, p. 115; no. 8, p. 225 ff.
[6.] Ibid., no. 1, p. 14 ff; no. 7, p. 224.
[7.] Ibid., no. 6, p. 156 ff.
[8.] See Alexander Hamilton, John Jay, James Madison, The Federalist, no. 68.
[10.] English Constitution, no. 8, p. 232 ff.
[11.] Ibid., no. 5, p. 147; no. 8, pp. 234-240; Introduction to the second edition, p. 265 ff. Cf. M.J.C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967), p. 224.
[12.] English Constitution, no. 7, p. 223.
Last modified January 16, 2020