Further response on Bagehot

   

Since Adam MacLeod is my friend, and friendship is a companion to virtue, it is only just to accept his reference to my moderation as a compliment, not a complaint, and I thank him for it. Though itself once considered a cardinal virtue, moderation has fallen on hard times in recent years, especially in relation to politics. In our polarized predicament, both sides treat the moderate as, if not anathema, at least suspect, neither a true progressive nor a true conservative. Actually, the critique of Aristotelian moderation is nothing new: Hobbes dismisses Aristotle's moral philosophy as an account of the mediocrity of passions, and even Montesquieu reports with some bemusement Solon's law requiring Athenian citizens to take sides when the polis is divided into factions, treating indecision if not moderation as a crime.[1]

(I am glad, by the way, that MacLeod did not praise my punctuality, as, by a series of accidents, this rejoinder comes late, after the dramatic upheaval wrought by the pandemic in the political life of both countries whose constitutions are here under review.)

MacLeod agrees that Bagehot's analysis can be read in the spirit of Aristotelian empiricism, but he notes the absence in Bagehot, though not in Aristotle, of higher law, of law that is in the people, not imposed upon them. Although often cited as the source of the adage that constitutionalism entails the government of laws, not men, Aristotle is anything but dogmatic on the question of whether it is better for the law or a wise man to rule. Halfway through book three of the Politics he raises and dismisses the possibility of the rule of law as a seventh form of regime, besides the basic six comprising rule by one, few, or many, either for the common good or their own advantage. Then, in the discussion of kingship toward the end of the book, or more precisely, in the discussion of absolute kingship (kingship over all), he asks the question explicitly.

On behalf of the law, people argue that law is intellect rather than appetite, so that to insist on man is to introduce the beast. On behalf of man, they note that even the best laws need to be applied by human beings to specific circumstances, for law is not, as we would say, self-executing. Aristotle is much clearer in reporting these arguments made on each side than in stating his own view. In the end, he seems to say that if a man of truly extraordinary virtue could be found, it would be better that he rule than that he be constrained by law, but he also relays this view: "laws based on [unwritten] customs are more authoritative, and deal with more authoritative matters, than those based on written rules; so if it is safer for a human being to rule than laws based on written rules, this is not the case for laws based on customs."[2]

On both sides of the Atlantic among the English-speaking peoples, unwritten customary law is known as common law. It is still the historical basis of private law in both jurisdictions and more influential on their public law than is usually noticed. Even in England, whose leaders a few years ago at the eight-hundredth anniversary of Magna Carta proclaimed that only three of its thirty-odd articles still had legal force and where juries—once known as the characteristic institution of the common law—have disappeared in civil cases and vote by majority rather than achieve unanimity in criminal ones, unwritten customary law is not unknown: What else is the status of the sovereignty of Parliament, on which David Wootton as much as Walter Bagehot rests his whole account? This fundamental norm, and the many conventions of the unwritten constitution that instantiate it, are surely "in the people," or perhaps one should say that the successful functioning of the system is evidence that that is still so.

In the United States, the heritage of common law is better rooted, mostly because protection of the rights of property, due process, and trial by jury were written into our constitutions. (No one I know is better able than Adam MacLeod to explain how common law permeates American law, by the way.) Although some of today's originalists see the writing of constitutions as a rejection of the common-law tradition, declaring fundamental law in writing was itself a part of that tradition, as mention of Magna Carta and the (English) Bill of Rights makes plain. The Federal Constitution drafted in 1787 invented new institutions for continental governance, but those institutions rested upon the pre-existing state governments, themselves developed from colonial forms, and in the clause assuming the debts of the Articles, Congress maintained federal continuity as well. That the papers written by "Publius" to defend this new design did not dwell on moral and legal continuity is no accident, nor is it evidence, pace Wootton, that virtue was something they treated only in passing rather than built upon. Indeed, from Hamilton's appeal to the moderation and judgment of his countrymen in the first and last papers, to Madison's references to the "manly spirit" of Americans in No. 14 and to "the free and gallant citizens of America" in No. 46, to his reference in No. 55 to the qualities of human nature deserving "esteem and confidence" that are presupposed by republican government, to Hamilton's indications of the character expected of executives and judges, concern for virtue runs throughout.

To be sure, "Publius" does not comment on whether such virtues have a natural law basis, which is not the same as saying that they do not, and since other founders made a point of writing about the importance of natural law and of Christian morality, one can hardly attribute to the Constitution itself the skepticism of David Hume. What is most innovative about the American constitutional experiment, at least at the federal level, was the decision to establish a government without an official religion, to make full and equal citizenship possible to those of different faiths and to declare religious liberty itself a constitutional—to many, a natural—right. Agreement on a frame of government without orthodoxy on first principles need not mean the law is ungrounded, but it does mean the government cannot insist that every mind explain the principles underlying government in the same way. It also moves the system outside the Aristotelian analytic, since Aristotle supposes that a city agrees about its ends, though it might deliberate about the means to achieve them. Thus, while I would agree with MacLeod that our political institutions cannot be absolved from responsibility for their own decay—I agree especially about the expansion of the judges' power and the abdication of the legislature's—the solution can be only partially political, at least in America. Such action can perhaps stanch the corruption of the culture, but it cannot order its repair. Contrary to the old saying, the Constitution was not meant to be a machine that would go of itself. It depends upon virtue—the law in the soul—not always of statesmen, not always of the people, but of one or the other, or both. It expects us to think for ourselves and to act upon what we judge best.

[1.] Hobbes, Leviathan, ch. 15; Montesqueiu, Spirit of the Laws, bk. 29, ch. 3.

[2.] Aristotle, Politics, bk. 3, ch. 16.