The first to plead his case seems right, Until another comes and examines him.
– Proverbs 18:17 (RSV)
Here’s a question for those of us who discover in our nation’s founding a covenant-based civil religion1: Could the U.S. Constitution be a primary source of virtue for our civic life, much as the Bible is for Christians?
One of my favorite verses about the relationship between text and virtue is from one of Paul’s letters to Timothy, in which he refers to what Christians now call the Old Testament:
All scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness: that the man of God may be perfect, throughly furnished unto all good works. (2 Timothy 3:16 – 17, KJV)
Scripture leads to correction and instruction, which in turn leads to maturity. Can civil scripture do the same in our civil life?
Two New England Federalists came to different conclusions. Timothy Dwight believed that constitutions and their ilk cannot foster virtue:
The formation and establishment of knowledge and virtue in the citizens of a Community will more easily and more effectually establish order, and secure liberty, than all the checks, balances and penalties, which have been devised by man.
Dwight, a Congregationalist minister and later a Yale president, took a position similar to Jonathan Mayhew’s before him, according to Philip Gorski’s American Covenant: A History of Civil Religion from the Puritans to the Present. Gorski’s summary: Mayhew and Dwight “believed that the endurance of a republic depended more on public virtue than on institutional design” (71). While both are important to a republic’s health, public virtue is separate from institutional design, and if Dwight would have had to have picked one, he would’ve picked the former.
John Adams, though, believed that institutional design fosters public virtue. In his 1787, three-volume book A Defence of the Constitutions of Government of the United States of America, Adams made out this causal relationship:
The best republics will be virtuous, and have been so; but we may hazard a conjecture, that he virtues have been the effect of the well-ordered constitution, rather than the cause.
Adams wrote before the U.S. Constitution has been drafted or ratified, but Madison agreed with his faith in the then-proposed U.S. Constitution’s instructive powers. In Federalist No. 49, Madison implied that the Constitution, if adopted, would begin to frame public debate and, in the process, inform it.
Madison wrote No. 49 in response to those who advocated that any argument between branches of government be resolved by the direct intervention of the people. In many such anticipated questions, Madison said, the multitude would be more influenced by the combatants than by the Constitution’s provisions, and the constitutional question “could never be expected to turn on the true merits of the question.” The nature of good republican government, by contrast, is to increase the chances that reason would override passion. Madison summarized the outcome of a direct appeal to the people:
The passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone of the public, that ought to control and regulate the government. The passions out to be controlled and regulated by the government. [Emphasis original]
Charles Kesler understands Madison’s position in No. 49 as placing the Constitution as mediator between the public’s passion and its reason:
So the reason of the public controls the government, which in turn regulates the public’s passions. Notice that this is not a formula for the direct rule of reason over passion in politics. It calls rather for the reason “of the public” to control the passions through the mediation of the government. The direct rule of reason over passion in politics might be said to dictate the suppression of rights and freedom in the name of duties or virtues. Publius does not endorse this, but neither does he allow rights to sink to their lowest common dominator, to become expressions of mere self-interest or passion. Instead, he calls for the “reason of the public” to become responsible for the passions of the public. He defends a form of government that will encourage rights to be claimed and exercised responsibly. The Federalist‘s concern for veneration fo the Constitution shows that a purely calculative or self-interested attachment to government is not sufficient to secure republicanism. The Constitution must attract the loyalty, admiration, pride, and even reverence of American citizens if the rule of law is to be firmly grounded — if republicanism is to be responsible.2
The Constitution, then, was constructed in part to teach civic virtue by permitting the rule of reason and the subjugation of passion. But how does this happen?
I’m no longer a rationalist, at least as Jonathan Haidt uses the term: “anyone who believes that reasoning is the most important and reliable way to obtain moral knowledge.”3 Haidt has persuaded me that my reason is mostly a construct to justify myself or my intuitions to others.
But Haidt acknowledges that reason is essential in public bodies:
I’m not saying we should all stop reasoning and go with our gut feelings. Gut feelings are sometimes better guides than resigning for making consumer choices and interpersonal judgments, but they are often disastrous as a basis for public policy, science, and law. Rather, what I’m saying is that we must be wary of an individual’s ability to reason. [Emphasis original]4
Madison, I think, would have agreed with Haidt. In the same Federalist 49, he wrote that “The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. ” [Emphasis original] As Haidt points out, however, to be able to reason with one another presumes that we are in relationships that are conducive to listening to one another.
John Marshall’s Supreme Court represents such a relationship. For most of twenty-nine years, this Federalist chief justice worked with the appointees from mostly Republican presidents bent on reshaping the court’s outlook. These presidents largely failed. As Jean Edward Smith points out in John Marshall: Definer of a Nation, most of the court’s opinions during most of Marshall’s tenure were unanimous. Smith attributes this frequent unanimity to Marshall’s insistence that the justices live and take their meals together.5 The justices were, therefore, forced to recognize their political opponents’ humanity. In many cases, they ended up liking their opponents and got used to reasoning with them to come up with thoughtful opinions that probably would have eluded the pens of justices acting alone.
The Constitution and other American covenants, such as the Declaration of Independence, can still frame our debates and teach civic virtue, but only in the context of a civic body. Civic virtue through our constitution and laws requires a polity, just as spiritual growth through scripture requires a church. Without a greater body, our timid reason will remain the mere instrument of our passion, and each of us will stay walled up in his political ghetto, uncritically absorbing his political ghetto’s version of the news.
- I’ve been examining our covenant-based civil religion. I’ve written elsewhere about how Lincoln spoke of the Constitution as part of a civic/sacred text. It’s a flawed text, Lincoln believed, and it would be superseded (or “fulfilled”) in certain places by the Civil War Amendments after Lincoln’s death, much as the Mosaic covenant is said to be fulfilled in Christ. ↩
- Charles R. Kesler’s introduction to the Signet Classic edition of The Federalist Papers, at xxix – xxx. ↩
- Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, page 7. ↩
- Kindle loc. 1632. ↩
- Page 507. ↩