"Sacredness and the US Constitution: A Properly Conservative View of our Most Important National Document"
A Constitution Day talk for the Alexander Hamilton Institute
I was working on this a good deal over the last week or two. Today is Constitution Day, so even though it’s Saturday, thought I’d post it now rather than wait for Monday.
Joseph de Maistre (below), from whom I borrow my analytic framework here, is a figure from the history of conservative thought who should be more well-known. I’m doing my little part to make that happen!
It is not uncommon to hear talk of the “sacredness” of the US Constitution, even if such talk is not always clear how that descriptive is being defined. Even the opponents of such a view of the Constitution acknowledge, albeit with disapproval, how many Americans see the document in this light. As a Salon magazine writer put it in late 2021, and one imagines while holding his nose and grimacing, “Americans view the the US Constitution and its framers with a reverence that is almost religious, as if it were a stone tablet delivered by Moses descending from Mt. Sinai. The constitution's perceived sacredness implies that it is only to be minimally and periodically amended, overseen by legal priests with exclusive knowledge of what should and should not be altered.”
The way we behave around the document speaks to sacredness too, if indirectly. In the Rotunda of the National Archives, one can find a copy of the Constitution, along with other important national documents, sealed off in protective glass and lowered into a vault at night that secures it from theft, fire, and natural disaster. “We are enshrining these documents for future ages,” President Harry S. Truman said. “This magnificent hall has been constructed to exhibit them, and the vault beneath, that we have built to protect them, is as safe from destruction as anything that the wit of modern man can devise.” One does not generally behave oneself in such an exaggeratedly protective way with respect to merely mundane objects.
The very fact of a Constitution Day also a reverential consideration of the thing. That the US Department of Education mandates that on this day all educational institutions receiving federal funds provide information on the history and meaning of the US Constitution tells us that we are to separate the day and its object from all the other, unremarkable days of the calendar and elevate it above them. This is what we do with holidays, a contracted form of “holy day.”
What should we make of all this if we want to understand it more carefully? What could it mean to say with any precision that a Constitution is sacred or that it is grounded by and produced by the sacred? Is any of that helpful for understanding the viability and the legitimacy of written codes of law and Constitutions? Does it help us better understand how humans can go about the business of trying to construct sturdy and resilient social and political orders?
We should perhaps start with some effort to define this term “sacredness.” This is one of those ideas that people often assume they implicitly understand, but then once they are asked to provide a definition, they realize the game is harder than expected.
I might preface with just a word about my intellectual pedigree. I have been something of a dedicated mythologist for much of my academic career, tracking the processes and practices by which human populations recognize and pursue relations with entities, symbols, and ideas they take as sacred. I’ve studied how they invent narratives and myths about those sacred things to share with their people, to pass down to subsequent generations, so that the essence of a given people and its traditions and nature can be sustained against the harshness of time and change.
And as an important aside here, note that calling something a “myth” does not mean it isn’t true and that mythologists are scholars of the untrue. It simply means it is a story, in a sense outside the game of true and false, that is stylized and shaped according to certain narrative needs in order to say something about the origins of a people, which is a topic on which there is often precious little in the way of verified fact.
The German theologian Rudolf Otto described the sacred with his term “the numinous,” alluding to the mystery and awe it produces. This is a good start, but only that. A thinker who has been influential on my own work, the French social philosopher Emile Durkheim, in his monumental study of the origins of religion, defined the sacred as that which is necessarily set apart from the profane or mundane. It is recognized as charged up with a kind of power. This power evokes reverence, and it is seen by us as generative. It gives us life and replenishes our energy, and so we engage in repeated ritual behavior with respect to those sacred things in order to maintain our vitality.
Durkheim argued that all societies orient themselves around sacred objects and symbols. He went further to argue that these symbols are in fact ciphers for the society itself. We worship ourselves, in other words, through sacred objects, though we are typically unaware that we are doing that, and we are oriented instead in our own thinking to something else.
I’ll give you a topical example from my own work to illustrate. We are recording this talk on Monday, September 12th. Yesterday, September 11th, marked 21 years since the 9/11 terrorist attacks. Some years ago, I wrote a book Angel Patriots on the story of United Flight 93. That was the fourth plane involved in the attacks, on which the passengers revolted against the terrorists and forced the plane down short of its target in a rural field in southwestern Pennsylvania. In my book, I tracked the process whereby the plane became a sacred object in an American civil religious myth of national identity that unites American nationalism and Judeo-Christian religious symbols. The first responders to the crash built a temporary memorial site at which visitors could pay homage to the heroes, who were enshrined in a sacred myth of national identity that is repeated endlessly in our country’s history and that was reiterated in light of the events on that day in that plane. In the terms of this sacred myth, patriotic citizens sacrificed their lives to save others and to preserve national monuments from deadly attack. They therefore merit inclusion in the body of our revered national pantheon. Later, a permanent memorial was built that leads visitors through the events of the day, brings them into contact with this heroic act and its authors, and teaches them to venerate them and their story forever, or at least as long as there are people like them with whom to share the myth.
In Angel Patriots, I asked the same kinds of questions I am going to ask here of the Constitution: What is the source of the sacredness of this thing? Were the heroic passengers of Flight 93 uniquely qualified individuals, different than us, transcendent in some way? Or, if they were like us, what is it in the American people that gives us at least the promise of achieving such sacred heroism? These questions took me back to a consideration of an important piece of our topic today: Is it perhaps something in the founding ideas of the country that made those men and women on Flight 93 potentially sacred? Or is it something below, undergirding those ideas, something less palpable but more ultimately real?
THE CONSTITUTION AND SACREDNESS
When we talk about the Constitution as a sacred object, we are typically talking about what it does in at least some ways that are consonant with Durkheim’s framework. We view the document, outside of and beyond its status in a system of law, as having a peculiar power, demanding awe and reverence. But what is our reverence directed towards? On what does it focus? Is it the text itself? Its words and phrases? Is it the people who wrote the words, and if so, in what way precisely? Or is it something else?
Sometimes, those who talk of Constitutional sacredness mean to be speaking of the text itself. But what in the text makes it so?
It must be said that it is, considered objectively, a pretty bloodless document, at least, beyond the Preamble, which is poetic and can even be made, with some clever ingenuity, to rhyme, as in the song version by Lynn Ahrens on the Schoolhouse Rock short that used to show on Saturday morning TV when I was a boy.
After the Preamble, though, there is not much there to get the blood pumping and to drive passion, which are general accompaniments to manifestations of sacredness. It reads like a shop manual or a technical diagram of a division of labor—here’s how this should be assembled, here is the duration of this entity and this one, here’s what this or another body has as its charge. I think it is fair to say that it is not the kind of thing the average reader picks up when he needs a little emotional lift at the end of the day.
But readers of the Constitution who recognize its sacredness will, even perhaps while agreeing with what I just said, nonetheless immediately note that it is a weighty text, treating matters of the utmost national seriousness, and this weight is what gives it its power. It moves us because we recognize it as an ultimate source on a subject of central importance: the political organization of our people.
We can certainly recognize it as an important historical intervention in the business of sovereign peoples asserting their right to self-governance. The principles of governance it lays out have worked fairly well for us, and they are expressed with admirable clarity and brevity. But this does not get us any closer to the ground of the claim that we should see it as sacred, as something meriting protection and preservation from contamination with the mundane world, something essential to the vitality of the people for whom it was written.
The text itself does not provide the ground of its authority. The Preamble, as elegantly stated and even poetic as it is, contents itself with a matter of fact statement about the origin of the Constitution: “We the People” decided to see to some essential matters of collective life such as the protection of liberty, peace, justice, national union, collective defense and provision of welfare, and we therefore “ordained and established” this document.
Perhaps “we the people” are the source of the legitimacy and power of the text, then? We’re right back to the matter I discussed in my example of Flight 93. Is it just those people, who by the way have now been replaced by others who might not be of the same qualities, who have that power of legitimacy, or is it Americans per se? If the latter, what is it about them (us) that confers this power? The Constitution offers no answer to these questions.
THE DECLARATION AS THE CONSTITUTION’S SOURCE OF SACREDNESS?
We can perhaps begin to devise an answer if we look, as some scholars do, to the relationship of this text to another. Some have argued that the sacredness of the Constitution is perhaps tied up in its relationship to the Declaration of Independence in a coupling from which the power of each is enhanced.
Here, it is good to forthrightly acknowledge something that no astute analyst of sacredness could miss. The most direct route to sacredness is through religion, as that is the field of human activity in which the concept first emerged and it is still the most natural environment for the concept.
The Constitution itself deals almost not at all, at least directly, with questions religious. The First Amendment in the Bill of Rights fleetingly notes an aspect of the relationship of the state to churches, namely, that establishment of religion is prohibited as is denial of freedom of worship by the citizenry. There is nothing, though, which could provide a hook for understanding the text as originating in anything beyond it.
It is in the Declaration of Independence that we find such a hook, in fact, several of them. There, our political rights, indeed our existence as a free people, are made dependent on a supernatural power four separate times in a document of just more than 1300 words. Our “equal station” among “the powers of the earth” is something to which we are “entitled…[by] the laws of Nature and of Nature’s God,” we are “endowed by [our] Creator with certain unalienable Rights,” we make “appeal…to the Supreme Judge of the world for the rectitude of our intentions,” and we declare our “firm reliance on the protection of divine Providence.”
Now many scholars have endeavored to remove as much of the supernatural and specifically of the Judeo-Christian as conceivably feasible from this, talking of the great distinction between Deism and more full-blooded religious perspectives. Yet no reader can fail to see the bald assertion in the Declaration that our political life and its legal principles extend from somewhere outside of and superior to that life and those principles.
Following Durkheim, the good social philosopher and social scientist, we might say that it is indeed something outside of the document itself, inexpressible in any other document, even if we stop short of saying that power is supernatural. Recall that Durkheim argued that sacredness comes from the ritual life and the inner faith of a people, who over time have produced a culture that includes myths about their origins and symbols that emotionally communicate to them their identities, their unity, and their mission. In this Durkheimian way, the Declaration might be seen as rooting the sovereign power of its claims and, by extension, those of the Constitution in the cultural Weltanschauung of the Anglo-Protestant people who made both texts. This cultural worldview included, as basic elements, belief in “a Supreme Judge of the World…Divine Providence,” and thus it rooted political sovereignty. The quest for justification, which carried us through the Constitution to the Declaration, ends here for a Durkheim, because in secular sociological terms there is no further justifying why a people have the historical culture they have. It is the ground beneath their feet, and it needs no explanation. It is the final answer on sovereignty.
But what if that historical culture shifts? Permit me one quick example of how this has manifested in our society.
National Public Radio has participated for more than 30 years now in a tradition in which the station’s hosts stage a reading of the Declaration of Independence on the 4th of July. In its earliest incarnations, back in the late 1980s, it was reverential: A solemn reading of the text, letting the words themselves carry the meaning, absent much commentary.
In recent years, there is much evidence that something significant has changed. Instead of the reverent reading of the Declaration this year, there was a long meditation on the phrase “All men are created equal.” The hosts and two academic guests insinuated that the original meaning was insufficient and needed to be progressively adapted to fit current elite ideas about equality. Looming in the background was the recent SCOTUS decision on abortion (Dobbs v. Jackson Women’s Health) and the progressive view of how revising the invention of a right to abortion will negatively affect the political status of women. The station also did a feature that expressed clear critical disdain for the document, in consonance with the ascendant progressive worldview at the station and in much of the rest of American elite culture, declaring straightforwardly that: “The declaration is a document with flaws and deeply ingrained hypocrisies.”
NPR has even gone back to the webpages of earlier readings and added an “editor’s note” to conform to contemporary far left political practice. The note reads: “This story quotes the U.S. Declaration of Independence — a document that contains offensive language about Native Americans, including a racial slur.”
What has changed in these three decades? Not the text itself. But the people commenting on it are different, and they have different beliefs, that much is fairly obvious. So, we might ask Durkheim here, can the sacredness in such documents be located in the people if these people, or at least some dominant subgroup among them, can so quickly and radically change their minds?
JOSEPH DE MAISTRE AND THE ESSAY ON THE GENERATIVE PRINCIPLE
OK, I’ve teased long enough. I want to suggest an answer to the question about the source of sacredness in the Constitution that I’ve been steadily asking now since I began. That answer is given in the Essay on the Generative Principle of Political Constitutions of Joseph de Maistre, written just two decades after our Constitution was.
Maistre is not as widely known and read as he ought to be. He was a defender of the Ancien Regime in France, that is, the political state based on the dual powers of monarchy and church that was attacked by the French Revolution of 1789. This is enough for some contemporary observers to label him with the terms we are too apt today to see as immediate disqualifiers: anti-democrat, royalist, theocrat. It’s not my task here to defend him from these charges. I might just mention that he has also been described as “the founder of anthropology as an originary theory of the human” who produced conceptual language for the social scientific study of religion that precedes the founding of those sciences by nearly a century. All I want Maistre to do for us is help us shed some light on this question of sacredness and Constitutions.
In the Essay, he is interested in our question, which is the relationship between law (and in this case, constitutions as primary law) and norms or culture. How should we characterize that relationship? Law can certainly serve as a force that helps to move norms, painstakingly, over long periods of time, but the causal arrow pointing in the other direction is stronger. Law has no hope of being written, much less followed, argues Maistre, without a pre-existing culture consistent with its principles.
Maistre presented Constitutions and all written legal codes as fully reliant on sources more subterranean, which they could never escape nor fully describe. He made a stringent criticism of social contract theory and its presumption that the origin of government lies in the rational consideration of individuals who agree to band together and escape the state of nature on the basis of calculated interest. This theory posits rational individuals before societies, an empirical absurdity presented by contract theorists as a necessary philosophical game for thinking through the roots of social order. But the dangerous implication of this perspective is that it imagines the individual is the arbiter of the existence of social order. If this is true, then as soon as individuals decide to do so, they can tear down such orders and build others, or even return to the state of nature should they so desire.
Maistre’s argument presumes that human beings have never existed outside societies. Our social bonds preceded us not only as individuals but as a species and therefore the roots of the bonds that hold us together are inevitably much deeper and more difficult to map than any written contract expressing our rational assent to those already-existing norms and practices. Against the contract theorists, Maistre rejected the idea that law can be determined democratically, by nothing more than rational decision-making. What is possible as law for a given people is determined by something more fundamental than their conscious action.
Again, Maistre was a fervent critic of the Revolution, and he feared the dangers it presented for the expansion, even the eternalizing of revolution. He wanted to take some of the sovereign power the Revolution was able to so egregiously misuse from the hands of human beings and place it somewhere beyond their reach, in a source more constant and incorruptible.
So for Maistre, it is not a Constitution itself that should be worshiped. Its source are inevitably and always below and beyond it. As we have seen, in the secular Durkheimian framework, we would say that a Constitution’s sovereign sacredness rests in the cultural practices that preceded it. But this, Maistre insists, only raises another question: What is the source of those practices?
Maistre’s view is that “the more perfect an institution, the less it writes…written law…has no authority whatever if it has not received a prior and unwritten sanction.” This is a profoundly anthropological view of human life and the limits of human reason. No text can clarify itself beyond the point of dispute and difference. This is the limit of words and communicative logic. A simple sentence can be read differently, sometimes significantly so, by those differently inclined, and the only thing that can ensure a coming together of the minds is some agreement that precedes efforts to rationally unify minds. In the deep history of humanity, our societies have always and everywhere been defined and bound by the emotional ties of community, proximity, shared ancestry and long-lived values, and most importantly by collective worship of the same God. There is no reason behind these ties, or in any event it is too complicated to articulate in writing. We are a people because here we are, with our shared collective memory and deep though incompletely articulable understanding of who we are, where we came from, and what mission we have in the world, and that understanding is not something we invented. It comes from outside us, indeed, from outside the world we see.
“Nothing great has great beginnings,” Maistre goes on, “…there are very few sovereignties able to justify the legitimacy of their origins…It is always necessary for the origin of sovereignty to appear as being outside the sphere of human control; so that the very men who appear to be directly involved are nevertheless only circumstances.” We might see this as a response well in advance to the contemporary critics of American origins on the left. All states are born in mystery and in injustice. They cannot rationally legitimate their origins. Some critics today would like to delegitimize the Constitution because of its failure to condemn slavery, but of course, all written documents will fail to live up to the standards of some readers, especially those distant from that writing. Only the spirit of the culture that breathed life into the Constitution, and ultimately the goodness of the God we acknowledged was behind it in the Declaration, can give it a solid grounding and defend it from vandals.
Here's the key for Maistre: “If therefore you wish to conserve all, consecrate all.” Consecration, or the making of something sacred, is what preserves Constitutions from destruction and endless alteration and distortion and dilution. Maistre’s view is that “[t]he essence of a fundamental law is that no one has the right to abolish it, but how is it beyond human power if it has been made by someone?...an agreement is not a law and obliges no one unless there is a superior authority guaranteeing it.” This authority, this sovereignty is found, in our Constitution, materially in the cultural worldview of its Anglo-Protestant authors, but more substantially and spiritually, beneath that worldview, in the God who created it.
This is a completely impractical answer, even some sympathetic critics will certainly say. We cannot return to the American world that made the Constitution and its understanding of God. True enough. But Maistre was deliberately ambiguous, knowing as he did that modern political projects would need to convince not only the faithful but those outside of faith as well. “The sanction for laws” he wrote, must come from “a power above men, either by recognizing that sovereignty comes from God, or by revering certain unwritten laws as coming from Him.” Unwritten, note well. So, not the Constitution, but other more basic laws of morality beneath it that cannot be written because “[a]s there is something in music it is impossible to annotate, there is something in all governments it is impossible to write.”
Durkheim the sociologist was empirically correct, though, that this does all ultimately come down to the practical question of the makeup of a culture and its people. Are there enough citizens left in the United States who believe the sovereignty of the Constitution is supernatural in origin or that we must proceed as if that were true even if it is not to carry the day? If not, if their culture has been wiped out, then the Constitution cannot be considered sacred (as it has no sacred foundation on which to rest) and it cannot resist revolutionary change.
DOBBS AS EXAMPLE
Maistre understood well how in a fickle or a revolutionary culture constitutions are infinitely malleable and perhaps meaningless. In the wake of the French Revolution, new constitutions emerged virtually every second year from 1791 to the confirmation of Bonaparte as First Consul for life. The French example was of constant change, he argued, because sovereignty was not understood as founded in anything more substantial.
We in the US have had—historically speaking, at least--rather more success. I sometimes have, only half-humorously, told French friends in discussions about politics that they are on their Fifth Republic now and counting, and we are still on our First, and that is perhaps enough evidence of the comparative success of our two projects. I’ve ended many arguments with this line.
And yet we have abundant evidence of the drift away from the root of sacredness in our law and our Constitution too. We just saw the handing down of a Supreme Court decision (I’m referring again to Dobbs) reversing another decision from a half century ago. That earlier decision posited a “right to privacy” hidden in the Due Process Clause of the 14th Amendment that guaranteed women the right to terminate pregnancies should they choose to do so. Many Americans believed this a fundamental misinterpretation of the Constitution, and they worked and advocated politically for 50 years to make possible a change in the legal intellectual makeup of the Supreme Court that could produce the reversal we just saw. We might say that the Court’s argument was in a certain sense Durkheimian: it claimed that the previous assertion in Roe v. Wade of a fundamental right to abortion was unsupported not only by the Constitution itself but also by the deeper norms and traditions of the culture that produced it.
So, is it reasonable to say then that all is well now, and we’re back to the ground of sacredness with respect to Constitutional interpretation? Not so fast, I think Maistre would say. The survey evidence demonstrates that much, and perhaps (depending on how you ask the question) most of the country likes this extension of a “right to privacy” to a “right to abortion.” Some significant number of them, especially many in culturally, socially, and politically elite positions, have shown themselves adamant in this belief. We can therefore expect concentrated efforts on their part to reverse the reversal. Where is the firm sacred ground that would obviate such volatile back and forth, such constant revision of the meaning of the law we purport to hold sacred?
An astute observer might find himself forced to argue that it is not present, at least it is not held to by a sufficient number of our population to give the logic political force. Perhaps we might instead reasonably predict that we are now entering something of our own French revolutionary period with respect to this and some other weighty matters in which we will see new, ever-“improved” readings of the Constitution taking power in a series of back and forth ideological movements. Given the clear trends in the cultural beliefs of the dominant classes in American society, there can be little doubt where this is most likely to end: That is, in the establishment of a broad understanding of the Constitution as something wholly malleable to the “will of the people,” or to the will of cultural elites in any event, and so revisable on their whim, and disconnected permanently from any purported sacred base.
Our second President, John Adams, who was a very near American contemporary of Maistre, expressed a sense of the source of the efficacy and sovereignty of our Constitution with which you may be familiar. It makes a fitting move toward conclusion to my argument. Here it is:
“While our country remains untainted with the principles and manners which are now producing desolation in so many parts of the world; while she continues sincere, and incapable of insidious and impious policy, we shall have the strongest reason to rejoice in the local destination assigned us by Providence. But should the people of America once become capable of that deep simulation towards one another, and towards foreign nations, which assumes the language of justice and moderation while it is practising iniquity and extravagance, and displays in the most captivating manner the charming pictures of candor, frankness, and sincerity, while it is rioting in rapine and insolence, this country will be the most miserable habitation in the world; because we have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
If Adams (and Maistre) are right, the bad news is coming in to us daily in the form of survey data showing that Americans are steadily growing less and less religious in the sense Adams intended. Survey data from 2019 show a 13% decline over the last decade in the percentage of the American population describing themselves as Christian, from 78% to 65%, while that of the unaffiliated (frequently referred to as the “Nones”) has grown from 17% to 26%. That is, more than a quarter of Americans now have no religious belief at all. The picture of American religious life is complicated, but the one constant is that the single group growing everywhere in the country at present is the unaffiliated, however it is defined.
Some observers of the Supreme Court have noted that cases deciding large matters of the relation of church and state loom large in the near future for the Court, and the present Court is likely to decide on them in ways that will reverse earlier decisions that had done much to accommodate the secularization process. Will it be possible to argue that such decisions rest on a Maistrean sacred foundation if the cultural base for the decisions is fragmented and weak in this way, that is, if American culture has changed so substantially that the majority rejects sacredness as a viable concept in considering political sovereignty?
Perhaps the question we might well have to consider, with some trepidation, on this Constitution Day is “What happens when, if these trends continue, we no longer have a culture that will even support the idea of a Constitution worthy of an annual commemorative, or holy, day?”
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