by Paul R. DeHart. Columbia: University of Missouri Press 2007. 312pages. Hardback $44.95. ISBN: 9780826217608.
Reviewed by Jason Pierce, Department of Political Science, University of Dayton. Email: Jason.Pierce [at] notes.udayton.edu.
If one measure of a good book is the scope of deserved readers, then Paul DeHart’s UNCOVERING THE CONSTITUTION’S MORAL DESIGN is a good book. Political scientists, lawyers, and philosophers will want to engage its thesis and evidence. As indicated in the title, DeHart seeks to uncover the moral framework of the US Constitution by identifying the document’s normative presuppositions and desired ends. As he writes, “A constitution’s normative framework is that set of normative assumptions that makes the best sense of its particular institutional arrangement” (p.28). DeHart is certainly not the first to embark on this journey, but he offers a different tack (See, e.g., Ely 1980; Pangle 1980; McDonald 1985; Lutz 1988). The more conventional approach categorizes a document by studying the intellectual influences and scholastic sources of those who penned it. DeHart eschews this approach, arguing that simply because the Constitution’s framers referenced classical philosophers does not necessarily mean that the document itself carries classical presuppositions and ends. Instead, he calls for a “logical analysis” of the Constitution that disaggregates the classical, modernist, and positivist categories often employed by intellectual historians and looks at what the document assumes about sovereignty, the common good, natural law, and natural rights. DeHart gets at those assumptions by identifying the constellation of possible alternatives and then systematically analyzing which ones best fit the Constitution’s institutional arrangements.
Readers will find DeHart’s logical approach attractive. Some of the book’s conclusions are unsurprising (e.g., the Constitution presupposes a constrained sovereign); others are likely to generate debate (e.g., the Constitution calls for a real, thick, teleological common good), but all are insightful and convincing. In an era when a lot of constitutional scholarship addresses issues beyond the document itself, DeHart reminds his readers that the document’s institutional structures disclose normative principles that shape politics and law. The book’s most rewarding feature is the intellectual journey it records as DeHart teases out those presuppositions.
After identifying in the introductory chapter limitations with fitting the Constitution into neatly defined eras of intellectual history, Chapter 2 describes DeHart’s method for uncovering its moral assumptions: inference to the best explanation. This is accomplished by finding the best explanation for a particular feature of the Constitution based on consilience (a rationale that explains more of the facts is preferable to one explaining fewer facts), simplicity [*207] (the simpler the rationale the better), and teleological fit (a rationale that better fits the facts is preferred over one that does not). DeHart makes a convincing case for this method of logical inference. In fact, I can imagine this chapter, on its own, providing a valuable intellectual framework in constitutional law or legal theory courses where questions about intent inevitably arise.
In subsequent chapters DeHart reaches inferences about the Constitution’s take on sovereignty (Chapter 3), the common good (Chapter 4), natural law (Chapter 5), and natural rights (Chapter 6). To ensure his readers do not miss the forest for the trees, each chapter includes a schematic that maps out possible primary presuppositions and secondary or follow-on presuppositions. This proves most helpful. By way of example, then, the Constitution may presuppose either a wholly popular or not wholly popular sovereign, as well as a restrained or unrestrained sovereign. After analyzing the Constitution’s structures and processes, DeHart concludes that the document presupposes a wholly popular and constrained sovereign. This conclusion, in and of itself, is unsurprising and telegraphed to some extent, but the chapter’s potency comes from the inferential steps to that conclusion, rather than the conclusion itself. If DeHart’s conclusions about sovereignty face little push back, the same is unlikely with his conclusions about the Constitution’s presuppositions concerning the common good, natural law, and natural rights.
Chapter 4 tackles the question of whether the Constitution presupposes some ontological conception of the common good. The chapter begins by describing the various schools and sub-schools of thought concerning this question, beginning with the realism/antirealism divide. DeHart then lays out two types of antirealism: anarchism (the common good does not exist) and conventionalism (there is no common good independent of humans), and drilling still deeper, the two camps of conventionalism: preferential conventionalism (the good is an end or goal, such as peace, fame, pleasure or wealth) and procedural conventionalism (the good is a set of rules that do not dictate any particular outcome). On the realist side of the ledger he distinguishes between deontic realism (the good is a norm to which humans conform) and teleological realism (the good is something humans seek to attain), which comes in a thin and thick form.
Having set out the possible presuppositions, DeHart rejects all antirealist options and concludes that the Constitution presumes a thick teleological realism. This is a “real common good, transcendent of human willing and normative for human behavior” (p.114). It strives for “the rule of reason in the political community” and “the goal of justice,” by constructing a constitution that delays decision making “thereby favoring long-term, widely shared preferences over short-term, narrow ones” (pp.152-54). To wit, DeHart includes bicameralism, multiple veto points, the high threshold for constitutional amendments, and other features that mandate broad and sustained public support for government action.
Chapter 5 considers what the Constitution presupposes, if anything, [*208] about the relationship between legal and moral obligations and a political system’s obligation to pursue the common good. Put differently, does the Constitution presume a natural law, and if so, what does that natural law require? Like Chapter 4, DeHart begins by identifying the range of answers that legal philosophy could render on this question. Absent some natural law presupposition, positivism or anarchy is the only alternative. If a natural law is presupposed, then it is promulgated either through reason, sentiment, or both. If by reason, then the question arises whether the natural law is promulgated for the pursuit of some desired end (instrumentalism) or sought for its own sake (noninstrumentalism). Turning to the Constitution itself, DeHart rejects Austin’s command theory of positivism because of the many ways in which the document constrains the sovereign (the people). Hart’s recognition-based positivism also falls short for the same reason as procedural conventionalism: the Constitution does not accept just any preferences, whether recognized by the community or not. If some form of natural law is presupposed, DeHart remains skeptical about discovering it through sentiment or emotion for the reason that the Constitution’s delay mechanisms seem to discourage actions based on immediate sentiments. Instrumentalism is rejected for the same reason.
In the end, then, the Constitution entails “a noninstrumental account of natural law in which a real, teleological, thick common good is promulgated to human beings through reason and made obligatory for them” (p.194). DeHart is quick to acknowledge a critique that many will raise about this specific thesis: How could a constitution that originally excluded so many from political participation, contained explicit accommodations for slavery, and one that has been interpreted since its ratification in ways that militate against the common good, be said to have any “moral” framework? DeHart recognizes that some slavery provisions offer anti-slavery interpretations, such as the three-fifths compromise, but concedes that others, such as the fugitive slave clause, offer no refuge from the critique. In the end, he abides by a natural law presupposition because it poses the fewest contradictions of the alternatives; more to the point, those contradictions were erased with passage of the post-Civil War amendments. Unfortunately DeHart seems to rush through this criticism with underdeveloped (but reasonable) responses that carry an unyielding tone. Either DeHart underestimates the critique, which I do not think he does, or he is nervous about anything less than an airtight case. Whatever the case might be, additional attention was needed to this issue.
The next chapter investigates the Constitution’s stance on natural rights given its natural law tenets. Either it presupposes natural rights or not. If it does, the question then is whether natural rights precede natural law. If natural rights precede natural law, they can exist in an unlimited or limited sense. DeHart begins by considering just what constitutes a right. He is attracted to Anscombe’s notion of a right as a “stopping cannot” which DeHart describes as follows: “[T]o say that N has a right to do Z is to say that N may do Z, that others may not interfere with N performing Z, and that the permission for N and proscription for others are [*209] both grounded by a special reason” (p.214). Thus, a natural right is a “‘stopping cannot’ with a logos protecting a ‘can’ that a person possesses in virtue of human nature” (p.216). DeHart’s inference to the best explanation begins with the observation that the Constitution is prescriptive in that it places certain obligations on citizens. These obligations carry the right to accomplish them. In the end, the natural law precedes natural rights because it sets for humans the tasks that must be done, which in turn, implies a moral right to pursue that task.
The last chapter takes up the question of whether the logically inferred moral framework to the Constitution is any good. That is, what comes from the Constitution presuming a constrained sovereign, a thick teleological common good, and a noninstrumental natural law that precedes natural rights? This is a tremendously important and complex question, but DeHart unfortunately dedicates much more space in this chapter defending his inferences than helping the reader think through the consequences of the presuppositions – individual and aggregated – for the political system, office holders, and citizens. Do not get me wrong, DeHart gives some elliptical clues. A constrained sovereign produces more reasoned policies, he claims. A thick teleological common good prevents tyranny, fosters tolerance, and enables us to speak of shared obligations. A noninstrumental natural law gives us reasons for perusing certain things and avoiding others. But these glimpses are likely to raise additional questions, most notably why should we care in the first place that the Constitution contains these presuppositions? If DeHart perfectly pegs the document’s moral framework, why is that anything more than an interesting intellectual tidbit? This question received inadequate attention, in my opinion. I very well may be asking more from a concluding chapter than should be expected. Simply identifying and defending the moral framework is no easy feat. I am confident DeHart could fill a second volume exploring facets of the “So what?” question. Perhaps that volume is in the works. I hope so because DeHart’s moral framework is rife with consequences.
Turning from the substantive to the purely stylistic, DeHart takes a Glossators-like approach to footnotes, which will satiate some readers and distend others, and he is guilty of overwriting at times. Apropos, “One might explain passive rights in this way: to say any person x has a right to some thing r means that some person y has an obligation to provide r to x. That is . . . N’s right to benefit from X doing Z arises from X’s obligation to do Z. X’s obligation to perform some duty, some action Z, that benefits N, leads to N’s right. I cannot see what sense it makes to say that these sorts of rights are natural” (pp.216-17). Nor can I. This is an admittedly superficial complaint, but one that deserves mention because of the priority the author places on simplicity when identifying the Constitution’s presuppositions.
Nitpicking aside, DeHart’s book is to be commended on many fronts. The analysis is thorough and convincing. The prose is Socratic, but its self-revelatory tone more than compensates. One is reminded time and again that while DeHart’s research question is a [*210] fairly simple one – what moral framework does the Constitution presuppose? – his answers reveal a philosophical complexity to the document that will enrich his readers, indeed at times surprise them. This is an important book that deserves wide readership in political science and law. It hastens us to lift our gaze from the proximate and clamor to consider anew the rationale beyond the Constitution, and relatedly, its potentialities and limitations.
Ely, John Hart. 1980. DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW. Cambridge: Harvard University Press.
Lutz, Donald S. 1988. THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Baton Rouge: Louisiana State University Press.
McDonald, Forrest. 1985. NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION. Lawrence, KS: University Press of Kansas.
Pangle, Thomas L.. 1988. THE SPIRIT OF MODERN REPUBLICANISM: THE MORAL VISION OF THE AMERICAN FOUNDERS AND THE PHILOSOPHY OF JOHN LOCKE. Chicago: University of Chicago Press.
© Copyright 2009 by the author, Jason Pierce.