The Actual Constitution

by Fr. James Schall - June 2, 2009

Reprinted with permission.

The president, I have decided, is a genius. He knew that by receiving Notre Dame's honors, he would solidify the wisdom of the 54 percent of Catholics who voted for the most anti-life candidate ever. He also understands that the best way to counteract the so-called Catholic influence on the present Supreme Court is to appoint yet another Catholic. Both at Notre Dame and soon at the Supreme Court, we will find many diverse and contradictory "Catholic" opinions about all things Catholic. That word, like the famous word "Protestant," can mean just about whatever we want it to mean.

Reading over the great ideas of the new Supreme Court appointee and of those who appointed her, I have decided that the time has come to admit facts. A colleague of mine has long been telling me that the 1787 Constitution has nothing to do with what actually rules the country. No part of it still holds. Many judges and their apologists pride themselves on the fact that they are bound by foreign law, or by what is needed, or by what they would like to see. But they are not much restricted by anything so pedestrian as a written Constitution or a common law tradition that supports it.

This famous document today evidently binds nobody. Actually, nothing binds anyone; that is the new constitution. That is the "democracy" under which we now live. Nothing sounds less obvious than those "truths" that the Declaration held to be self-evident. We are not now sure if the unions, the executives, the stockholders, the banks, or the president run General Motors. We are not convinced that anyone who officially runs the country is bound by any document of positive constitutional law that was designed to insure ordered rule.

As reader of Plato and Aristotle, I recall their suspicions that when a country became a "democracy," as they called it, it would be ruled by the principle that there was no principle. Liberty was subject only to its own definition. They suspected from this confusion of everyone claiming everything that a young and talented "ruler" would appear. In lack of any other limiting principles, he would assume popular rule. Anything was better than nothing. He would eventually gather a national police force around him. Things would be enforced. Justice would be attained. Great enthusiasm would be generated.

The original Constitution, the one that no longer rules, had a provision called separation of powers. Folks were supposed to check each other so that no untoward things happened. American founders were famous for their healthy skepticism about human nature, particularly in high places. They liked virtue all right, but they also wanted to be sure that even the virtuous did not have it all to themselves. This worry becomes particularly important in a land where no longer is found any theory of what "virtue" or "honor" might be. We are all equal now, whatever we do. Our judges have invented a regime in which all sides are represented. Diversity becomes what rules.

Representative government also used to ask: "Who is to check the representatives?" Since the courts now legislate, why do we need a congress? The courts "represent" everyone. If we do not need a legislature, why do we need a president? We could put the impeachment power in the hands of the courts in lieu of a senate, which was originally a court anyhow.

Transaction Press recently republished the 1958 book of the French Dominican Raymond Bruckberger, to which Daniel Mahoney wrote an incisive introduction. Bruckberger's thesis was that Europe, after two world wars, had really lost its soul and its sense of belonging to the ancient tradition. This tradition, Bruckberger thought at the time, still lived in America. Thus, he suggested that even if Europe disappeared, what it stood for was still alive across the Atlantic.

Fifty years after Bruckberger's book, however, things have turned out the opposite. America has now succeeded in imitating the failed Europe. The president's greatest supporters are in Europe, not Kansas. As several Canadians have recently pointed out, there is no longer any place to go where you can find what was known in the Constitution as "America." We have now what was famously called a "one-party" system with no checks and balances, not even the fourth estate.

The purpose of government now is to give everyone what he wants, provided what he wants is what the government wants him to have. The government has to save the people from those "reactionaries" who think the Constitution is the law of the land. As Colin Powell said, "People want more government." This is the new Constitution that cannot be written because, as the judges assure us, it changes every day.

Fr. James V. Schall, S. J., teaches political science at Georgetown University. His latest book, The Mind That Is Catholic, is published by Catholic University of America Press.