The Tea Party movement has renewed an interest—indeed, a commitment—to the Constitution as it was conceived by the Founding Fathers. One of several groundings for what is clearly a worshipful view of the American Constitution is the idea expressed by President Warren G. Harding: “I must utter my belief in the divine inspiration of the founding fathers.” Quoted in Jill Lepore, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History 16 (2010). In Lepore’s mind, this tea party view presents to us “historical fundamentalism” that is “marked by the belief that a particular and quite narrowly defined past—‘the founding’—is ageless and sacred and to be worshiped; that certain historical texts—the ‘founding documents’—are to be read in the same spirit with which religious fundamentalists read, for instance the Ten Commandments.” Id. This is the result of subscribing “to a set of assumptions about the relationship between the past and the present stricter, even, than the strictest form of constitutional originalism, a set of assumptions that, conflating originalism, evangelicism, and heritage tourism, amounts to a variety of fundamentalism.” Id. at 15-16. Lepore’s book, briefly reviewed last week on this blog, is fairly read as “an argument against historical fundamentalism,” a view based on “measuring the distance between the past and the present.” Id. at 19.
There is, however, a fairly thin line between the fundamentalism of the Tea Party movement, on the one hand, and the scholarship offered by modern natural law constitutionalists--a group of constitutional writers who conceive the decisions made by our political order as subject to a legally enforceable general moral trump card embodying the natural rights sentiments expressed in the Declaration of Independence and allegedly repeated in early bills of rights and the federal Ninth Amendment. Both would benefit from a careful review of the work of an important and thoughtful theologian, social, and political thinker, Reinhold Niebuhr. Niebuhr suggested that many twentieth century American political thinkers made “[t]he invariable mistakes of all cultures” in “tend[ing] to forget the relative character of such social justice and social peace as are achieved in a given civilization.” Reinhold Niebuhr, Reinhold Niebuhr on Politics: His Political Philosophy and Its Application to Our Age as Expressed in His Writings 4 (Harry R. Davis and Robert C. Good, eds. 1960) [hereinafter Niebuhr on Politics]. Niebuhr underscored that “the greatest illusion of all historical cultures is that they mistake the stability of their civilization for the final peace.” Id.
Historically these mistakes included what Niebuhr called “the liberal faith,” with its belief “that society is moving toward a universal community and a frictionless harmony of all social life by forces inherent in history itself.” Id. at 11.
It should be noted that the "liberal" that Niebuhr is talking about is what we find in modern libertarians; that minimal government or laissez faire ideology
The “optimistic illusions of our liberal culture” are the result of “a too-simple confidence in man, particularly the rational man, and a too-simple hope in progressive achievement of virtue in history, by reason of the progressive extension of intelligence.” Id. at 19. Niebuher’s analysis concludes that the dominant political ideologies of the twentieth century, Marxism and liberalism, present “evasions of the deeper problems which all men face in seeking a tolerable harmony with their fellow man. Both obscure the fact that the root of man’s lust for power and of his cruel and self-righteous judgments on his fellow is in himself and not in some social or economic institution.” Id. at 38.
There remain thoughtful constitutional scholars and commentators who continue to perceive the American Constitution as “a heavenly banner,” or “a great tree under whose branches mean from every clime can be shielded from the burning rays of the sun.” The current author comes from a religious tradition that considers the Constitution in this very light. (For a religious perspective on the Constitution, see The Notion of an Inspired Constitution, by this author)
It may well be that the most “inspired” thinking of the founders was a genuine insight into the human nature that virtually requires a system of checks and balances. See The Federalist No. 51, at 349 (Jacob E. Cooke ed., 1961) (contending that “the great security against a gradual concentration of the several powers in the same department, consists in giving those who administer each department, the necessary constitutional means, and the personal motives, to resist encroachments of the others”). In The Federalist Papers, Madison reminded us:
[W]hat is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable government to control the governed; and in the next place, oblige it to control itself.
To assume that America’s Constitution is the equivalent of scripture is simply to ignore the insight of the founders who recognized mankind’s partial and imperfect nature. Madison studied at Princeton and learned the orthodox Christian view that men are plagued by a sinful nature.
The goal of the framers of the Constitution was to specifically secure the rights as to which there was a consensus, even while generally leaving for resolution over time the issues about the morally appropriate uses of government; it was certainly not to delegate all such questions to an elite group of interpreters of natural law—particular in the form of lawyers appointed to the federal courts. On the one hand, Madison asserted that “[i]t is impossible for a man of pious reflection not to perceive in [the nation] a finger of that Almighty hand which has so frequently and signally extended to our relief in the critical stages of the revolution.” On the other, Madison’s skepticism of human nature prompted him to believe that limits on government power in support of human right should be found in the written Constitution. Madison was not so optimistic as to delegate to courts the power to decide on the meaning and implications of natural law rights. His views concurred with the Constitutional Convention’s Committee of Detail, a body that asserted that it should “insert [in the Constitution] essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.” 2 The Records of the Federal Convention of 1787, at 137 (Max Farrand ed., rev. ed. 1937).
At least some of the active participants in the Tea Party movement are advocates of a “libertarian” political philosophy, which is combined with a strong preference of smaller government. One prominent advocate of such views, Randy Barnett, is a well-known constitutional law and theory scholar. Barnett has published Restoring the Lost Constitution: The Presumption of Liberty (2004), advocating a virtual return to the constitutional philosophy embraced by the Supreme Court eighty years ago. Such libertarians would do well to heed Neibuhr’s evaluation of the advocacy of libertarian political philosophy:
In its most consistent form modern liberalism believed in a pre-established harmony in society, akin to the harmony of non-historical nature which would guarantee justice if only governmental controls were reduced to minimal terms. This laissez faire theory did not realize that human freedom expresses itself destructively as well as creatively, and that an increase in human freedom and power through the introduction of technics makes the achievement of justice more, rather than less, difficult than in non-technical civilizations. The liberal culture of our era believed, either that the egoism of individuals, classes and nations was limited and harmless, or it hoped that the expression of self-interest was due to ignorance which could be overcome by growing social and political intelligence. This opinion misread the facts of human nature, as they are known from the standpoint of the Christian faith and as they are attested by every page of history.
Niebuhr on Politics, supra, at 10. For more insight on the potential impact of Niebuhr’s thought on modern American constitutional theory, see Thomas B. McAffee, Overcoming Lochner in the Twenty-First Century: Taking Both Rights and Popular Sovereignty Seriously as We Seek to Secure Equal Citizenship and Promote the Public Good, 42 U. Rich. L. Rev. 597, 624-25 (2008); Thomas B. McAffee, Substance Above All: The Utopian Vision of Modern Natural Law Constitutionalists, 4 S. Cal. Interdisciplinary L.J. 501, 522-27 (1995).