I don’t think that we’ve yet exhausted the topic of whether and why we should still treat the constitution like a constitution, so this post will be devoted to this past week’s ongoing exchange (from last week’s post) among Greg, one of our readers who goes by “Chuck,” and me. (Well, it’s that, and also the fact that Greg’s Philosopher Song Contest is too good to be followed by anything too distracting.)

If have If I’ve understood him correctly, Chuck has suggested that our constitution’s amendment process is not sufficient to address needed changes in government because, in his words, that process is “probably not the main driver of [constitutional] change over time.” But why should it be? It would seem that the burden to drive changes in the constitution is on the one who wants it to change, rather than on the constitution itself (i.e., where we find the constitutional amendment process in the first place). The constitution does, of course, need to provide a means of adapting to changing circumstances and needs of the community it serves. But for the constitution to be, itself, the driver of its own change, is as unnecessary as it is illogical.

Chuck also seems to agree with Seidman that our continued insistence on following the constitution as a legally binding document, again in Chuck’s words, “tends to distort political argument by at times privileging certain narrow and ultimately irrelevant or unanswerable or non outcome-determinative questions.” This, I think, might get to the heart of our disagreement, though I have to qualify that with the disclosure that I haven’t seen the interview he referenced, nor have I read Seidman’s book, so the substance of those “ultimately irrelevant,” etc., questions may matter here.

Still, I think that both Chuck and Seidman might like to see judges and juries freer to adjudicate according to what they think is best, rather than be bound to what Seidman referred to as a document written by “a group of white propertied men who have been dead for two centuries.” This is an understandable position, especially if those “non outcome-determinative questions” that we have to ask because of the constitution but which we would rather ignore end up getting in the way of a decision. Why, after all, should rules made up over two hundred years ago still bind decisions today? And if you’re inclined to say that they shouldn’t, well then yes – perhaps the constitution ought to include within itself some “driver of change” that prevent its rules and principles from ever getting in the way. I don’t know.

What I do know, though, is that going in that direction won’t get us anywhere closer to fairness or justice or desirable outcomes, etc. Why not? Not because it wouldn’t be more expedient or efficient to do away with the constitution; of course it would. But as Seidman himself subtly indicates, someone or something is going to be imposing standards and outlining parameters for legal justice. The question is whether we want that to be a constitution or a person/group of people. Recall that Seidman did express approval of “an elite body like the Supreme Court with the power to impose its views of political morality on the country”. He does not want the governance of a constitution; he wants the governance of imposed elite opinion. The Guardians, if you will.

Seidman was quite honest to choose the words “imposing…morality”; he might have said “providing guidelines” or “serving as arbitrators of final resort.” But he recognized that, without a constitution, this is exactly what such a body would do – it would impose its own sense of morality (besides, obviously, statutory law), because it would have nothing else from which to draw.

Is that good? For certain individuals, it may be advantageous from time to time when one’s justice of choice writes the opinion. But it is decidedly bad for a polity – it is the rule of men and not of law.

Ultimately, then, while the seemingly “ultimately irrelevant or unanswerable or non outcome-determinative questions” can seem cumbersome, but they might just be necessary to avoid, well, tyranny.

We have here in Washington a constitutional law professor who would like to do away with the constitution. No, not that constitutional law professor; rather, it’s Professor Louis Michael Seidman of, sigh, Georgetown University’s law school. His New York Times op-ed from a few weeks ago asks us – as a nation – to consider “giving up” on the constitution. Why? To get things done. In order to really have a country ruled by We the People, Seidman says, we have to liberate ourselves from “the shackles of constitutional obligation”, since, well, that dusty old document penned by “a group of white propertied men who have been dead for two centuries” just really gets in the way sometimes.

The op-ed, which is breathtakingly one-sided, tells us not to be afraid of releasing ourselves from constitutional bondage because, well, we’ve already done it! As he points out, “the two main rival interpretive methods, ‘originalism’ (divining the framers’ intent) and ‘living constitutionalism’ (reinterpreting the text in light of modern demands), cannot be reconciled…. Whichever your philosophy, many of the results — by definition — must be wrong.” So, one side or the other is ignoring the constitution. And we know this is happening because “dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore…”

It’s not just the men in robes, either – Presidents have ignored the constitution, too:

 In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. This reading no doubt contributed to his willingness to extend federal power beyond anything the framers imagined, and to threaten the Supreme Court when it stood in the way of his New Deal legislation.

All of this means, to Seidman, that hey, we’ll be fine if we get rid of the constitution. As we can see from FDR and Roe v. Wade, “Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.” There are two obvious problems here: a) how do we know that it was the flagrantly-ignoring-the-constitution and not the other side’s efforts to preserve the constitution (whichever side that is, of course – as though we can group originalists and revisionists in the same camp when it comes to their efforts to continue on using the constitution) that led to the growth and prosperity?, and b) er, it’s at least a teeny bit controversial to say that the New Deal and abortion rights equate to “growth and prosperity.”

Not done yet, though. Seidman thinks that, even though we shouldn’t bind ourselves to the whims of the dead propertied men, by golly, they did stumble on a few good ideas that we can hang onto:

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

Oh dear. So, some matters we should leave settled, but it’s not clear which ones or by what standard they should remain settled, once we’ve thrown out the document that established those settlements. Also, why on earth would the president be checked by the states? What precious few powers are left to the states are entirely protected by the constitution and nothing else; surely the federal government, unshackled from its hitherto constitutional obligations, will not restrain itself. (Seidman knows this, having just told us that FDR was happy to drastically increase federal power even with constitutional strictures.)

And goodness. There’s something to be said for an elite body that can “impose its views of political morality on the country”? I’m sorry – there is? And also, can we please locate that description of the Supreme Court in the constitution? (Remember, this is in the list of things Seidman would like to keep.)

But perhaps the clearest reason to keep a constitution can be found across the ocean, in Egypt’s ongoing struggle for self-rule. Samuel Tadros’ lengthy piece, “What is a Constitution, Anyway?” gives us an interesting glimpse into what kinds of fights a society can have without a crusty old document laying out the parameters. I’m happy to endure the admittedly annoying Beltline bickering over tax cuts rather than face struggles for the right to build a house of worship, which is a luxury afforded to us only because our constitution has guaranteed the latter to us for over 220 years. So for now, I’m going to cast my vote with the dead white men, or rather, with the rule of law and system of government they laid down.

In a post from last week (and subsequent comments), Greg challenged me to provide an “intellectual architecture to guide our thinking about how to resolve disputes between the consciences of individuals and the institutions that form those consciences.” Vital and such, and also hard.

Greg proposes that we connect the capax dei — a naturally-instilled capacity for God — not only in conscience but also in institutions. His reasoning is that “God is a God of action and not just of knowledge and contemplation”, and to place the capax dei solely in the conscience would imply that we act on our religious beliefs only in contemplation. Thus, we must locate the capax dei also in institutions.

As I mentioned in an earlier post, though, the conscience relies, in part, and both knowingly and not, on institutions for its formation…To deny religion its role would be grossly unfair, favoring secular institutions’ influence in forming the conscience. In other words, institutions do form the conscience, so to discriminate against religious institutions’ attempts to form the conscience — which generally includes some sort of institutional authority claims over its adherents, even if only in the educative sense — would actually be to favor secular institutions (education, media, etc.).

Greg is summing up my above position as “conscience requires institutions to form it,” which isn’t entirely what I mean but I take the point. (I would say that institutions necessarily do form consciences — goodness, take education as an institution and we’re already there, but there are plenty of media, cultural, social and religious institutions to point to that influence the conscience, both obviously and subtly.) He sees this position as inadequate for providing the intellectual architecture mentioned above, and suggests instead that if we “articulate how institutions are connected to the capax dei without having to run that connection through the conscience,” we will be better off for it.

Thus far, Greg’s actual words. Now, a reading into those words:

I think that Greg is resisting my situating the capax dei in the conscience alone because he think that if we can connect institutions — educational, artistic, professional, et al, — directly to God (n.b.: not to the capacity for God), we will be better off. In other words, if we can have at our disposal a defense of the work for its own sake, because it is part of the creative work that God entrusts to human beings, we will have a much richer defense against centralized edicts (actual or by funding restrictions) declaring what education, art, science, et al. ought to look like. If, on the other hand, we can only defend work and institutions against government encroachment by finding a way in which that encroachment violates consciences, we have very few resources to draw upon.

On this, we agree – that is, if this “Greg thinks thusly” characterization is correct. In other words, we have freedom, we ought to have freedom, to carry out all kinds of institutional work simply because it is part of God’s creation, and decidedly not the state’s creation. And that freedom should be the default position, not only ‘granted’ when conscience demands it. So in an important way, God resides in those institutions themselves. (I probably need correcting from a theologian on how to articulate that point, though.)

But I still don’t think that the capacity for God, as intended in the old doctrine of capax dei, resides in those institutions. I want to keep this as just a capacity for God, not God Himself. And that capacity is, I have to maintain, not itself active. The manifestation of it is certainly active; it is work, art, education, everything. That is, the capax dei does manifest itself in institutions. But the capacity itself is something that compels the conscience, rather than an institution, toward God or at least the search for religious truth.

Why this  matters is that I want to argue that the capax dei is an important tool in the preservation of the freedom of religion and not just the freedom of conscience. The conscience can tell a person all kinds of things; it can be wholly individualized. This leaves us without any mechanism for arbitrating between individuals’ conscience-based claims. But the capax dei links the conscience to religions, and imbues those religions with not only the value of conscience claims but with an institutional authority as that institution that mediates the individual’s capax dei with deo. Again, as I wrote, a natural capacity and desire for God means that we as humans must be free to pursue not only our consciences’ demands, but God Himself. This is a subtle but very important distinction, for if we need only obey our own consciences, we can probably stop with philosophy, which helps us understand the nature of the good. But if we have natural desires and capacities to know God, we must also have religion — and, consequently, freedom of religion.

A while back, I posted about the difference between freedom of conscience and freedom of religion suggesting that the old Augustinian idea of “capax dei,” or the capacity (sometimes interpreted to mean desire) for God, could help us answer those who would rather do away with freedom of religion and stick to freedom of conscience.

Greg responded with the below comment, which I’d now like to answer. (This is what you get when you sign up to blog with Greg. He responds in 30 seconds, you stop and think about it for 2 weeks. Sigh.)

Obviously I agree that we must not only follow our “consciences” simply as such, but God himself. But I’m not sure your argument here answers the other side’s case, and it may actually reinforce their position. You argue that human beings must follow not only their “consciences” simply as such, but God. Yet you accept Thomas’s locating of the desire for God in the intellect. Doesn’t that reduce the capax dei to merely the conscience? The intellect is irreducibly individual and subjective; there can be no such thing as a social or objective intellect. I would say the key reason we need freedom of religion and not just freedom of conscience is precisely because we desire God, and find him, not only in the intellect but in action – not only in contemplation but in life as we actually live it – and that means we must find him socially and objectively, in institutions (as well as elsewhere). If I’m right, the Thomistic location of the capax dei in the intellect is part of the problem rather than part of the solution. Thoughts?

So, Greg would like to know if I’m really just circling back to defending conscience, not religion. I’ve written about this before, but there I argued that freedom of religion had to be preserved over and above freedom of conscience because religious institutions themselves both are a part of religion and have formative influences on the conscience:

“I think we are starting to see that religion has perhaps always been more than a matter of just what one person believes; he or she is always standing on the shoulders of giants who have, very often, worked as members of a body (ecclesia). With or without formal members of the clergy, churches and other religious institutions have established some sorts of structures and corporate identities that bear on but are not synonymous with the religious identities of their members. And I think it is important that we grant religious institutions the freedom – the libertas ecclesiae – to continue to do so.”

But I don’t think that the addition of the capax dei is either redundant with conscience, as Greg suggests, or trivial, as one might be inclined to think from the fact that, as Latin and authentic and thereby a candidate for hipster theology, “you probably haven’t heard of it.”

The capax dei resides, yes, in the individual’s mind, at least to the extent that we can say that any desire is in the mind. So it is individual in that sense. But we aren’t talking about something that exists only in the individual’s mind, since this is a capacity for God, capital G. Something that exists objectively, for which we as individuals have a capacity. True, with fallen human minds and desires, we don’t all either really seek Him or know Him. But it is an individual’s capacity for universal objective thing, not for goodness or justice or beauty.  As such, I think that this aspect of human beings points us to the role for religion, for religions mediate the individual and God, one way or another.

(Disclaimer: that last sentence needs a lot more space than I have here.)

St. Thomas More’s life – and death – gets at the distinction pretty well. Here was the king’s Lord Chancellor who was put to death rather than support the king’s self-appointment as the King of England, which ran contrary to his Catholic faith. It is absolutely the case that his objection resided in his conscience. But of course, his conscience also reminded him that he was “the king’s servant.” So there was another influence that was not purely individual in nature, an influence that convinced him that he was “God’s [servant] first.”

My original argument for religion over conscience, quoted above, reminds us that the conscience relies, in part, and both knowingly and not, on institutions for its formation – as we see with More. To deny religion its role would be grossly unfair, favoring secular institutions’ influence in forming the conscience. But the added point about the capax dei means that that thing that More died for, that final-instance conscience arbiter, is something in all of us. And if that’s something in all of us, then all of us are meant to be God’s – not an isolated conscience’s – servant first.