At Baylor University, where I teach, “American Constitutional Development” is a required course for all undergraduates. With the aim of providing a basic introduction to the Constitution, it covers the Founding era and the development of constitutional doctrine over the course of American history.
With a mandate this wide, the class can be taught in a variety of ways. It may focus exclusively on “case law,” examining the most important landmark cases over the past two hundred-odd years by reading the opinions the Court has handed down. Or it may follow the prescribed path of a textbook, distilling cases into summaries and offering sections on general concepts like federalism, equal protection, and executive power. Alternatively, it may focus on methods of interpreting the Constitution, explaining the differences between the opinions of various justices based on their judicial philosophies. Most teachers opt for some combination of these approaches, hoping to provide the broadest possible introduction for students, who seldom take another course in the subject.
I have consistently taught the class as a combination of the first and third approaches—that is, emphasizing the most important “landmark” cases by reading actual opinions (not summaries) and focusing on the varieties of constitutional interpretation that structure these opinions. Thus, the course turns into a kind of “primary texts” approach to American constitutional history.1 Students come to recognize the difficult constitutional and social issues of the cases they read: in Roe v. Wade, privacy; in Plessy v. Ferguson and Brown v. Board of Education, racial equality. At the same time, they learn to appreciate the intellectual style of a justice, seeing that each favors certain kinds of arguments, often quite different from his colleagues. This approach offers students more richness and depth than simply memorizing the “holdings” of a long string of cases.
One of the dangers in teaching this way, however, is the tendency of both students and professors to settle on one favored method of interpretation and then to neglect the others that compete with it for legitimacy. Even if we are convinced that a certain approach to the Constitution is the right one, the full range ought to be presented to students so they can grasp the variety of interests at play in the opinions of the Court. Another danger lies in approaching the primary source documents with a kind of mystical reverence, forgetting that they were written by men at a particular time and place and thus reflect their historical context. This is not to advocate a “historicist” approach to teaching the Constitution but rather to situate the Founding moment historically as well as philosophically and legally.
Both of these tendencies exist among those of us who identify as conservative. Like Justices Scalia and Thomas in the contemporary Court, we desire a foundation for thinking about law and seek something more solid—some variety of “textualism” or “Originalism”—than the contingency and change embraced by certain liberal justices. My own approach to teaching the Constitution, however, is also shaped by a very different kind of conservative: the political philosopher Michael Oakeshott, who has made a strong and provocative critique of standard conservative modes of interpreting the Founding documents. Ultimately, I think the best approach to teaching a course like this combines an emphasis on canonical written documents with an understanding of their inherent limitations. Oakeshott is helpful in charting a middle course between a too-great reliance on texts, on the one hand, and a freewheeling, “inventive” approach to the Constitution, on the other.
In his most famous essay, “Rationalism in Politics,” published in a book of the same name, Oakeshott calls the American Founding a “Rationalist” project. In Oakeshott’s lexicon, Rationalism is not something to be praised but a pathological condition, a cast of mind exhibited by many people in the present day and especially by those involved in politics. It is the notion that what is most important in any activity is not the knowledge acquired in the practice of an art or science, but instead the principles and precepts that can be distilled and written down about it. These precepts can, in turn, be used as guides or directives for novices. Thus does an ideology substitute for an inherited or hard-won understanding of political activity.
This is the kind of knowledge one finds in technical handbooks and how-to manuals: “Teach Yourself Piano in Six Weeks” or “How to Become a Food Critic in Nine Easy Steps.” The presupposition is that in showing novices how to engage in an activity, somehow these abridgments can assume the place formerly held by teachers and expert practitioners. Another assumption is that these precepts are somehow self-generating—bright ideas thought up by enterprising individuals or committees—owing little to tradition and almost everything to the exercise of a supposedly pure, unaided reason.
If it is not already clear from the above description, being called a Rationalist is no compliment. Yet these are precisely the terms in which Oakeshott describes the authors of the Declaration of Independence. The American colonists believed that “the proper organization of a society and the conduct of its affairs were based upon abstract principles.”2 Such principles were “not the product of civilization; they were natural, ‘written in the whole volume of human nature’…to be discovered in nature by human reason.”3 He credits John Locke with having set out an ideology that was adopted wholesale by people such as Thomas Jefferson and Alexander Hamilton, who then claimed “a positive superiority over older societies not yet fully emancipated from the chains of custom.”4 Allied with this indictment is Oakeshott’s severe skepticism about written constitutions and their ability to constrain political practice in the way their authors intended.5
Historians and political philosophers will no doubt find much to quibble with in this account, since it is brief and deliberately provocative. In painting with a broad brush, Oakeshott is certainly guilty of simplifying a situation that is far more complex than he admits. Yet there is something persuasive about his critique of the Founding as a Rationalist project and his idea of written constitutions as an integral part of this Rationalism. This places the current debate between timeless truths and fluid experiment—often framed as the difference between “Originalism” and “Living Constitutionalism”—on a somewhat different footing.
Oakeshott’s criticisms highlight the contingent character of documents that many of us might be inclined to view as foundational, even quasi-scriptural. And yet he does not careen off into unfettered relativism. Oakeshott is perhaps most helpful in reminding us that traditions must be learned and maintained—that they constitute a kind of endowment that must be continuously replenished by emerging generations of students. Yet while he is undoubtedly right that no written abridgment can adequately capture a tradition, neither, he might suggest, should we abandon the one we have inherited, even if it is built on the “Rationalistic” documents of the Declaration and Constitution.
Substance of the Critique
Oakeshott’s substantive critique of American Rationalism is both epistemological and interpretive. The epistemological criticism is essentially that the supposedly “self-evident” truths asserted in the Declaration were by no means self-evident. Instead, they emerged from concrete historical experience and were dependent upon the thought of Locke and others. Rights to life, liberty, and the pursuit of happiness issued from the English political tradition, to which the colonists owed a major, if sometimes unacknowledged, debt. To claim that one has plucked them out of thin air, only to declare them valid now and for all time, discounts the significance of the tradition that actually produced them.
In the same way, the Bill of Rights emerged organically from British political practice. As examples, both the Sixth Amendment’s right to counsel and the Fourth Amendment’s guarantee against unreasonable searches and seizures were direct and pointed responses to conditions in England that called out for remedy. These amendments were not philosophical abstractions but concrete reactions to particular circumstances. Yet the way they are often discussed implies that they somehow stand apart from those circumstances, as if given to the colonists in the manner that God gave Moses the Ten Commandments. But this understanding, Oakeshott maintains, is a mistake.
Many writers have noticed the canonical-scriptural character often attributed to the American Founding documents. Historian and theologian Jaroslav Pelikan has written insightfully about the similarities between biblical and constitutional interpretation in Interpreting the Bible and the Constitution. He points out that both endeavors begin from a canonical, written text—a “Great Code”—that has come to possess an apparently unassailable authority. For many Americans, he observes, “the Ten Amendments of the Bill of Rights now seem to provide a version of the function that used to be performed for their grandparents by the Ten Commandments of the Decalogue.”6 Justice Hugo Black argues something similar in his appropriately titled A Constitutional Faith.7 Both authors highlight the ways in which the Declaration and the Constitution stand as abridgments or distillations of political experience.
The problem is that nowadays such abridgments or distillations are often seen as guides for political practice, even at times assumed to have the power of instruction. One common view along these lines is that memorizing the Bill of Rights will suffice for a knowledge of politics, replacing altogether the need to study American and English constitutional history. Of course, the Oakeshottian objection to this approach will be apparent: memorizing precepts, as if learning a catechism, is a painfully inadequate way to approach a tradition of political activity. Removed from their context, such precepts can neither guide nor inform. They are bare abstractions.
The interpretive problem with the Rationalist approach is perhaps even more pressing than the epistemological one. Even if we could agree that these documents set out precepts that could simply be put into practice and followed, there remains the basic question of what they mean. In certain areas this is not difficult: the Third Amendment’s prohibition against quartering soldiers is about as straightforward as any command could be. But in other areas meaning is highly contested. How precisely should the First Amendment’s prohibition of laws “respecting” religious establishment be read, and how do we know what falls under the umbrella of the “regulation of commerce”? These are much more difficult endeavors. Oakeshott’s objections would focus on the questions of who is empowered to make such determinations, and how they are supposed to make them. A brief review of the varieties of constitutional interpretation over the past fifty years would suffice to show that little consensus exists on this subject.8
Still, we may be persuaded that Oakeshott has a point here without entirely abandoning the idea that precepts and written constitutions have value. In “Originalism: The Lesser Evil,” Antonin Scalia provides a straightforward defense of Originalism as a way of avoiding the problems that Oakeshott has identified. For Scalia, the words of the Constitution and the Bill of Rights are not infinitely malleable and the most sensible way of understanding them is by determining what they meant, in common sense terms, when they were written. Scalia does admit that several difficulties are inherent in this theory, one of which involves plumbing “the original understanding of an ancient text.”9 He nevertheless argues that adherence to original meaning, as best we can grasp it, offers a defense against the radical contingency that would result if we had no written documents to ground us or if, following many modern interpreters, we allowed a far greater latitude for “evolving” meanings.
Despite its difficulties, Scalia argues that Originalism is better than its alternatives because he can find “no basis for believing that supervision of [the law’s] evolution would have been committed to the courts.” It is not the special province of judges to adapt the written law to reflect contemporary social mores. This is because once original meaning has been abandoned, it is impossible to achieve consensus on what should replace it. The danger then becomes that judges “will mistake their own predilections for the law.” At the very least, maintains Scalia, written guarantees such as those in the Bill of Rights “require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.”10
In casting Originalism as the “lesser evil,” however, he does appear to take account of Oakeshott’s objections about who interprets the Constitution and how they do it. In his academic writing, Scalia argues that judges ought to defer to the original meaning of the document (insofar as they can discern it) and allow the political process—not the judiciary—to determine the trajectory of contemporary values. Oakeshott would certainly not agree, however, on the importance of treating the Constitution itself with the kind of reverence most Americans have for it.
The dangers inherent in Oakeshott’s view will be apparent to any thoughtful observer. If we abandon or downplay our Founding documents, what is to prevent interpretive manipulation of all values? Does not everything become fluid experiment, unmoored from any foundations?
For some progressive commentators such a situation is not something to be feared but embraced. Many scholars and judges candidly oppose Scalia’s brand of Originalism, preferring a more “malleable” understanding of the meaning of the Founding documents and the moral imperatives they contain. This is not a new occurrence. Woodrow Wilson argued in 1908 that the “explicitly granted powers of the Constitution are what they always were; but the powers drawn from it by implication have grown and multiplied beyond all expectation, and each generation of statesmen looks to the Supreme Court to supply the interpretation which will serve the needs of the day.”11
In another startling passage, written in 1912, Learned Hand comments as follows: “[E]verything turns upon the spirit in which [a judge] approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will….[Judges] must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disturb it, if rigidly confined.”12 True, most contemporary commentators on judicial interpretation are not this candid about their predilections. Justice Stephen Breyer, for instance, argues in Active Liberty (2005) that “purpose and consequences” must be taken into account only in concert with a host of other factors, including tradition, history, precedent, and so on.13 But Breyer surely has more in common with the purpose-driven, fluid interpretation of the Constitution than he does with an Originalist like Scalia.
What Can a Contemporary Educator Take from Oakeshott?
One cannot know for sure where Oakeshott would stand in these debates, because he wrote little about America after he called it Rationalist. A few essential lessons may nevertheless be taken from his critique and are independently valid and helpful in thinking about pedagogy. First, Oakeshott slightly tempers his criticism about Rationalism by observing that “reflection upon the principles and ends in conduct [sometimes] has a pedagogic and perhaps even a prophylactic use.”14 In other words, even if precepts by definition cannot capture the whole of experience, they may serve as pointers or reminders of things people have long thought important. Even the “distorting mirror of an ideology” will reveal “important hidden passages in the tradition, as a caricature reveals the potentialities of a face.”15
The important point here is not to misunderstand or misuse the precepts—that is, to think that because we have a right to “free speech” we therefore possess everything we need to know for engaging in political or social communication. Precepts emerge after the tradition that produced them; and while they may be employed in limited ways, they do not (and cannot) substantively serve as directors of our activities. There is a lesson here about the misuse of “technical” knowledge: knowing how to do or understand something requires much more than memorization of abstract bits of information.
There is a second lesson related to the first. Much of what Oakeshott objects to in Rationalism is the faulty notion that we owe most of our success to ourselves and little to the traditions out of which we have emerged. This is a prime temptation for anyone who attempts social or political reform: because we are seldom reminded of the great stock of knowledge upon which we habitually draw, we imagine it does not exist or that it is not important. In cooking, for example, we may be inclined to attribute a successful dinner to our own skills, when we are actually working within a tradition that tells what can be cooked in butter and what cannot, which spices work with other spices and which do not, and so on. It is no different in politics or education.
Finally, this critique calls us to remember the importance of authentic education—not merely the so-called education required to pass a test or memorize a code of conduct, but the kind that immerses one in the complexity of a subject and fosters appreciation of its nuances. The Rationalist exhibits a lack of such an education because he is always in a hurry. The offer of a technique “will seem to him the offer of salvation itself; to be told that the necessary knowledge is to be found, complete and self-contained, in a book, and to be told that this knowledge is of a sort that can be learned by heart quickly and applied mechanically, will seem, like salvation, something almost too good to be true.”16
Of course, it is too good to be true. If we wish to protect ourselves against the dangers of extremism in politics, we must engage in the hard work of learning our social and political tradition, admitting candidly that no shortcuts are available. We must not put too much faith in the guiding power of precepts nor abandon them altogether, thinking that we can bestow upon them any contemporary meaning we happen to desire at the moment.
To return to the initial question: How ought we to teach the American constitutional tradition? I think the answer must be to follow a moderate course between excessive reverence for the words on the page and complete disregard for their historical context in the name of evolving values. To navigate this difficult subject competently, students must be well-versed in history, philosophy, and the texts themselves. Such study is more difficult than simply memorizing the “holdings” of cases or regurgitating definitions of political concepts. But it is also infinitely more rewarding, and is precisely the kind of study that university students ought to be willing to undertake.