Herewith Part II of our serialization of Orestes Brownson's essay, "Catholicity Necessary to Sustain Popular Liberty."
Why Constitutions Cannot Protect Liberty
[In the preceding installment Brownson recounted how strong passions and interests influence, even dictate, public policy. He concluded that democratic liberty can survive such intemperate influences only if it is protected by a strong force which can moderate -- or, even, condemn outright -- various passions or their particular manifestations in a country's laws. In this installment, Brownson begins to examine the flaws of possible moderating forces, beginning with the ideas of constitutionalism and the rule of law.]
The framers of our government foresaw this evil, and thought to guard against it by a written constitution. But they intrusted the preservation of the constitution to the care of the people, which was as wise as to lock up your culprit in prison and intrust him with the key. The constitution, as a restraint on the will of the people or the governing majority is already a dead letter. It answers to talk about, to declaim about, in electioneering speeches, and even as a theme of newspaper leaders, and political essays in reviews; but its effective power is a morning vapor after the sun is well up.
Even Mr. Calhoun's theory of the constitution, which regards it not simply as the written instrument, but as the disposition or the constitution of the people into sovereign states united in a federal league or compact, for certain purposes which concern all the states alike, and from which it follows that any measure unequal in its bearing, or oppressive upon any portion of the confederacy, is ipso facto null and void, and may be vetoed by the aggrieved state -- this theory, if true, is yet insufficient; because, 1. It has no application within the state governments themselves; and because 2. It does not, as a matter of fact, arrest what are regarded as the unequal, unjust, and oppressive measures of the federal government. South Carolina, in 1833, forced a compromise, but in 1842, the obnoxious policy was revived, is pursued now successfully, and there is no state to attempt again the virtue of state interposition. Not even South Carolina can be brought to do so again. The meshes of trade and commerce are so spread over the whole land, the controlling influences of all sections have become so united and interwoven, by means of banks, other moneyed corporations, and the credit system, that henceforth state interposition becomes practically impossible. The constitution is practically abolished, and our government is virtually, to all intents and purposes, as we have said, a pure democracy with nothing to prevent it from obeying the interest or interests which for the time being can succeed in commanding it. This, as Mr. Caleb Cushing would say, is a "fixed fact." There is no restraint of predominating passions and interests but in religion. This is another "fixed fact."
Our own government, in its origin and constitutional form, is not a democracy, but, if we may use the expression, a limited elective aristocracy. In its theory, the representative, within the limits prescribed by the constitution, when once elected, and during the time for which he is elected, is, in his official action, independent of his constituents, and not responsible to them for his acts. For this reason, we call the government and elective aristocracy. But, practically, the government framed by our fathers no longer exists, save in name. Its original character has disappeared, or is rapidly disappearing. The constitution is a dead letter, except so far as it serves to prescribe the modes of election, the rule of the majority, the distribution and tenure of offices, and the union and separation of the functions of government. Since 1828, it has been becoming in practice, and is now, substantially, a pure democracy, with no effective constitution by the will of the majority for the time being. Whether the change has been for the better or the worse, we need not stop to inquire. The change was inevitable, because men are more willing to advance themselves by flattering the people and perverting the constitution, than they are by self-denial to serve their country. The change has been effected, and there is no return to this original theory of the government. Any man who should plant himself on the constitution, and attempt to arrest the democratic tendency -- no matter what his character, ability, virtues, services -- would be crushed and ground to powder. Your Calhouns must give way for your Polks and Van Burens, your Websters for your Harrisons and Tylers. No man, who is not prepared to play the demagogue, to stoop to flatter the people, and, in one direction or another, toe exaggerate the democratic tendency, can receive the nomination for an important office, or have influence in public affairs. The reign of great men, of distinguished statesmen and firm patriots, is over, and that of the demagogues has begun.. Your most important offices are hereafter to be filled by third and fourth-rate men -- men too insignificant to excite strong opposition, and too flexible in their principles not to be willing to take any direction the caprices of the mob -- or the interests of the wire-pullers of the mob -- may demand. Evil or no evil, such is the fact, and we must conform to it.
Such being the fact, the question comes up, How are we to sustain popular liberty, to secure the free, orderly, and wholesome action of our practical democracy? The question is an important one, and cannot be blinked with impunity.
Tomorrow, Part III: The Survival of Liberty Requires Super-Human Virtue