Taking the Constitution Seriously.

IN HIS long and distinguished career as a commentator on the United States Constitution, Walter Berns has criticized the follies of the modern Supreme Court and its defenders more lucidly, and more relentlessly, than perhaps any other living writer. The motto of his career might be his oft-repeated dictum that today's political-science and law professors teach "constitutional law without the Constitution," i.e., without asking what is the purpose of a written Constitution in the first place. So instead of beginning their studies by pondering the Declaration of Independence, the debates of the Federal Convention, The Federalist, and other classic accounts of American political principle, today's students learn about constitutional law almost exclusively by reading Supreme Court cases-a method practically guaranteed to prove that the Constitution is what the judges say it is.

Taking the Constitution Seriously is Berns's most audacious attempt so far to put the Constitution back into constitutional law, by presenting a general exposition of the political theory of the Constitution. As against the apologists for judicial activism who claim that the Constitution does not have a political or moral theory-and who conclude that it is the judges' task to supply one, concocted from their own prejudices and intuitions-Berns insists that the Constitution is based on the natural-rights philosophy of the Enlightenment, boldly proclaimed in the Declaration of Independence and subtly expounded by Thomas Hobbes and John Locke (among others).

Nevertheless, Taking the Constitution Seriously does not quite live up to its name. The problem is that Berns is really ascribing a political theory to the Constitution, rather than finding one there. Thus there is no exegesis of the actual text of the Constitution, little interpretation of The Federalist except for the parts that can easily be made to fit his argument (Nos. 10 and 51, predictably), no account of the Declaration aside from the usual once-over of its famous second paragraph. In short, he sees the Constitution and the whole American Founding through lenses that filter out most of the available light.

Consider a few of his gloomier asseverations. Jefferson and Madison, he maintains, cleaving to Hobbes's and Locke's critique of revealed religion, thought it necessary to weaken religious belief for the sake of civil peace. In fact, he says, the philosophy that ultimately made civil peace possible-the natural-rights philosophy of the American Founding-was incompatible with Biblical theology, because the Lockean principle that "liberty of conscience is every man's natural right" implies, in Berns's words, "that by nature man is under no law obliging him to act with a view to saving his soul."

But in fact liberty of conscience does not mean that at all. It is true, according to Aquinas, that the natural law obliges us to seek knowledge, including knowledge of God-a quest akin to the Socratic desire to know the truth, which is the philosophic equivalent of the salvation of the soul. But the specific truths of salvation disclosed in the Old and New Testaments are known by faith, not reason. The freedom to weigh the commands of revelation and reason is what the natural right of conscience protects, fully in accord with the natural law and with the gift of faith. What Madison and Jefferson understood themselves to be fighting for, then, was not so much weakened but purified religion, purified of all the temptations of worldly political power, and therefore strengthened in its moral power. But Berns does not understand them as they understood themselves.

To take another example, Berns claims that the Framers (as distinguished from their opponents, the Anti-Federalists), said "little or nothing about moral or civic education"; indeed, that "it is not possible to point to a single statement proving that the Framers expected the states to provide the sort of civic or moral education required of 'citizens in a republican regime," though he admits they were aware of the problem. But what about the Northwest Ordinance (passed in 1787 and renewed by the First Congress), which instructed the Northwest territories in no uncertain terms: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Examples could be multiplied; there was in fact a massive consensus among the men of the founding generation that it was a duty of state and local laws, ordinances, and customs to inculcate proper morals.

Berns's misjudgments, alas, are not random, but follow from his theory of American constitutionalism, which emphasizes the Hobbesianism underlying the Framers' more obvious and respectable Lockeanism. But can anyone really believe that the Founding was the work of men who thought, to quote Berns's epitome of Hobbes, that "the purpose of life is the avoidance of death" at any cost?

It is clear that Berns does not believe it, even though his argument requires him to believe it. And so we have the deus ex machina, the notion that the Framers' character "had been formed under the laws of an older and civilized politics," and therefore that their character and their political practice contradicted their political theory. "In theory, the country was indeed founded by self-interested men who acted in order to secure their private rights; in practice, however, these same men pledged 'to each other [their] lives, [their] Fortunes and [their] sacred Honor.'"

Although the desire to save the Framers' reputation may be laudable, Berns's argument forces us to choose between two equally unsavory conclusions. Either the Framers disdained to live basely and dishonorably, but thought it necessary and desirable that their children should; or the Framers were hopelessly confused about what they were trying to accomplish. In either case, how could anyone blame today's judicial activists for wanting a more elevated and coherent theory of the Constitution?

Of course, there is an alternative to these despairing conclusions, and that is for Berns to reconsider his theory. Some of the facts that could be the basis of such a reconsideration are adduced in this book, which ends with a long quotation from Jefferson's celebrated letter to Henry Lee (May 8, 1825). In that letter, Jefferson traces the ideas proclaimed in the Declaration to, among other sources, "the elementary books of public right, as Aristotle, Cicero, Locke, Sydney, etc." The principles of the American Revolution would then seem to rest-contrary to Berns's interpretation-on the reasonable agreement of ancients and moderns, on the harmony of "sacred Honor" and liberty, rather than on the triumph of moderns over ancients, and of liberty over honor.

But in this book, Berns's theory stands like the Pillars of Hercules, marking the point beyond which he will not sail.