BERNS Democracy and the Democracy constitution constitution Democracy Essays by Walter Berns and the Foremost among the institutions of liberal democracy that Walter Berns has spent his academic career defending is the United States Constitu- constitution tion. In this collection of essays, he continues that defense, addressing issues such as natural law, civil rights and states’ rights, multiculturalism, patriotism, the First Amendment, and the roles of academic and religious and the institutions. Enduring questions of American political thought are explored: Was the American Revolution really a revolution? What is the origin of our inalienable rights? Did God have something to do with the American Founding? Can we do without Him now? In Democracy and the Constitution, Berns expounds these questions while defending the institutions of liberal democracy in the country that Abraham Lincoln once called “the last, best hope of earth.” Essays by Walter Berns is the John M. Olin University Professor Emeritus at Georgetown University and a resident scholar at the American Enter- Walter Berns prise Institute. recipient of the 2005 National Humanities Medal GOVERNMENT AND POLITICS/ POLITICAL PHILOSOPHY $20.00 ISBN-13: 978-084474239-7 ISBN-10: 084474239-2 COVER IMAGE OF FLORAL DESIGN © ROYALTY-FREE/CORBIS. COVER IMAGE OF THE UNITED STATES CONSTITUTION © JOSEPH SOHM; VISIONS OF AMERICA/CORBIS. Democracy and the Constitution LANDMARKS OF CONTEMPORARY POLITICAL THOUGHT Christopher C. DeMuth, series editor WHY BLACKS, WOMEN, AND JEWS ARE NOT MENTIONED IN THE CONSTITUTION, AND OTHER UNORTHODOX VIEWS Robert A. Goldwin HERE THE PEOPLE RULE Selected Essays: Second Edition Edward C. Banfield ON CHARACTER Essays by James Q. Wilson AS FAR AS REPUBLICAN PRINCIPLES WILL ADMIT Essays by Martin Diamond TOWARD A MORE PERFECT UNION Writings of Herbert J. Storing DEMOCRACY AND THE CONSTITUTION Essays by Walter Berns Democracy and the Constitution Essays by Walter Berns The AEI Press Publisher for the American Enterprise Institute WASHINGTON, D.C. To Robert Goldwin treasured adviser and friend Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. Library of Congress Cataloging-in-Publication Data Berns, Walter, 1919- Democracy and the constitution : essays / by Walter Berns. p. cm. Includes index. ISBN-10 0-8447-4239-2 (pbk : alk. paper) ISBN-13 978-0-8447-4239-7 1. Constitutional law—United States. 2. Democracy. I. Title. KF4550.B389 2006 342.73—dc22 2006019283 11 10 09 08 07 06 1 2 3 4 5 6 © 2006 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writ- ing from the American Enterprise Institute except in the case of brief quota- tions embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Printed in the United States of America Contents INTRODUCTION ix PART I. CONSTITUTIONALISM 1 PREFACE 3 1. ANCIENTS AND MODERNS: THE EMERGENCE OF MODERN CONSTITUTIONALISM 4 2. THE ILLEGITIMACY OF APPEALS TO NATURAL LAW IN CONSTITUTIONAL INTERPRETATION 17 3. PRESERVING A LIVING CONSTITUTION 29 First Invocation of Extraconstitutional Principles 29 “Natural Justice” 31 The Authority of Judges 34 The Failure of Congress 36 The Death of Constitutionalism 38 Legitimacy and Authority 40 4. THE DEMISE OF THE CONSTITUTION 42 5. SOLVING THE PROBLEM OF DEMOCRACY 50 America’s Good Fortune 52 Principles of Government 56 A Republican Government 59 The Model of John Locke 60 The Role of the Judiciary 65 A Republican Constitution 68 A Model Constitution 70 6. CONSTITUTIONALISM AND MULTICULTURALISM 73 vii viii DEMOCRACY AND THE CONSTITUTION PART II. CONSTITUTIONAL AND POLITICAL MATTERS 93 PREFACE 95 7. STATES’ RIGHTS AND THE UNION 96 8. TALKERS 100 9. WHY A VICE PRESIDENT 104 10. TWO-AND-A-HALF CHEERS FOR THE ELECTORAL COLLEGE 107 11. CIVIL NOT NATURAL RIGHTS 117 12. FLAG-BURNING AND OTHER MODES OF EXPRESSION 121 13. BLUE MOVIES 131 14. HAIL, NEW COLUMBIA 137 15. TEACHING PATRIOTISM 141 16. RELIGION AND THE DEATH PENALTY 151 17. UNDER GOD 155 18. WHAT DOES THE CONSTITUTION EXPECT OF JEWS? 159 PART III. ACADEMIC MATTERS 167 PREFACE 169 19. THE ASSAULT ON THE UNIVERSITIES: THEN AND NOW 170 20. TRASHING BOURGEOIS AMERICA 191 PART IV. ADDENDUM: PERSONAL MATTERS 197 PREFACE 199 21. REMEMBERING FRIEDA LAWRENCE 200 22. REMEMBERING HERBERT STORING 204 PUBLICATION ACKNOWLEDGMENTS 209 NOTES 211 ABOUT THE AUTHOR 235 INDEX 237 Introduction One of the distinctive things about America is that its Founders were polit- ical theorists as well as practitioners. Consider, as the most telling example, the Declaration of Independence. It was drafted by Thomas Jefferson, John Adams, and Benjamin Franklin, men who had distinguished political careers, but who also wrote books and scientific papers and founded uni- versities (Jefferson the University of Virginia and Franklin the Philadelphia Academy, which became the University of Pennsylvania). Franklin was also one of the founders of our first so-called learned society (the American Philosophical Society), and Jefferson served as one of its first presidents. As for James Madison, Alexander Hamilton, and John Jay, they combined under the pseudonym of Publius to write The Federalist (or Federalist Papers), which has been described in our own time as “the most important work in political science that has ever been written, or is likely ever to be written, in the United States.”1 Not only were they all political theorists, but they were completely confident of the theory they espoused. “We hold these truths to be self- evident,” they declared in 1776, that all men are equally endowed with cer- tain unalienable rights, and that government is instituted “to secure these rights.” They believed it important that students, specifically university stu- dents, receive instruction in these matters. Accordingly, when designing the curriculum for his University of Virginia, Jefferson proposed that students be thoroughly schooled in “the general principles of liberty and the rights of man, in nature and in society.” To this end, he recommended, among the books to be read, John Locke’s treatises of government, and, of course, the Declaration of Independence, The Federalist, and the Constitution. Who better to assign this reading than professors of political science? At any rate, I thought it appropriate to devote a good portion of my time in the ix x DEMOCRACY AND THE CONSTITUTION classroom to expounding and defending the principles of liberal democ- racy and the institutions embodying it here in the United States. First among these institutions is the Constitution, which, alas, is not always taken seriously by judges, even Supreme Court justices. They tend to treat their judicial commissions as letters of marque authorizing them to keep the Constitution in tune with the times, as the saying goes, which in practice means their view of the times and what they think the times require. For example, in the University of Michigan Law School case of 2003,2 the Court held—presumably because the “times” required them to hold—that a race- conscious admissions policy was not unconstitutional at the time, but would become so in twenty-five years’ time; which is to say, the policy was obviously unconstitutional, but we are not yet prepared to say so.3 What is true of the Constitution is also true of the Declaration of Independ- ence. We have it on the authority of James Madison (see Federalist 39) that the Constitution is “reconcilable with the fundamental principles of the Revolution,” but courses on those principles are hard to find in our universi- ties. For example, the history department at Harvard, our oldest and most dis- tinguished university, apparently does not have a course on the American Revolution or on the Founding of the United States. Yet, the subject would seem to be of considerable importance. Did God have something to do with the Founding? Can we do without him now? Was the Revolution really a rev- olution? On the same subject, what is the provenance of our unalienable rights, and which of them, if any, do we retain after government is instituted? These are enduring questions, and their importance justifies the publication, in most cases the republication, of these essays, beginning with those on consti- tutionalism. What is more, the United States happens now to be engaged in the effort to export democracy—meaning, I trust, constitutional democracy— to countries that have never known it, an effort in which I have personally been involved. As I wrote in the preface of my book, Making Patriots: In 1987, the bicentenary of our Constitution, I was in Brazil, where the people had recently overthrown a military dictator- ship and had begun the process of writing a democratic consti- tution. I had been invited to lecture on constitutionalism. At one place, a university in Recife, after I had finished my prepared remarks, someone got up and denounced, not me, but the local INTRODUCTION xi official who had sponsored my appearance. “Why,” he shouted, “did you invite an American? What can they tell us about con- stitutions? They’ve had only one. Why didn’t you invite a Bolivian? They’ve had a hundred.”4 There was, of course, good reason to invite an American to address this subject. Who else? Who is better suited to do it? What other country can match our experience of constitutional government? Besides, there is noth- ing peculiarly American about our principles.