To my knowledge, Berns never explicitly discusses why he studied American political thought or constitutional law, rather than following Strauss in studying history of political philosophy. His books seldom cite or mention Strauss.2 Only one of them even contains, among the usual acknowledgments of intellectual debt, an expression of gratitude which follows in its entirety. “To. . . the late Leo Strauss, I owe more than I am willing to express here.”3 “Willing” suggests he was able but chose not to. Why?
Berns may once have explained this silence about Strauss in the context of commenting on its absence in another of Strauss’ prominent students. “Other Strauss students are extremely reticent about invoking his [Strauss’] name, and for a very good reason. Strauss did not found a cult or a movement, and one does him honor by not speaking of him too much, lest the pupil’s failings appear to be those of the teacher.”4 Berns describes this reticence as “moderation.”
In this same place, Berns understands “moderation” as requiring a particularly sharp disjunction between political philosophizing and ruling. Socrates, he says, “lived quietly with his fellow Athenians while hardly letting them know he philosophized, and he certainly never tried to be their king. He was concerned with preserving philosophy, not aggrandizing.” To restore and preserve Socratic philosophizing was arguably Strauss’ main goal. If Berns shared that goal, he chose another way of pursuing it, namely as a scholar and defender of the Constitution.
Berns’ emphasis on moderation may be a clue to Strauss’ influence on both his vocation of constitutional study and his manner of pursuing it. For Strauss taught “[T]hat wisdom requires unhesitating loyalty to a decent constitution and even to the cause of constitutionalism” is a contemporary inference from “the old saying that wisdom cannot be separated from moderation.”5
It may shock contemporaries to describe Berns as moderate since moderation is today commonly understood to so depreciate spiritedness that one does not take a decided part. But both Berns’ constitutional scholarship and his regular forays into political controversy, are characteristically spirited, decided, and combative. He hits hard and he takes sides. Moreover, moderation today sometimes means to stand in an unprincipled middle between principled extremes. But he is not moderate in that way either. No one would say Berns lacks principles.
In what way then is Berns’ constitutional understanding moderate? It is almost certainly not in relation to the poles or extremes of contemporary politics, i.e. liberalism and conservatism, for Berns’ moderation usually puts him in the company of conservatives. However both early and late in his career he has dissociated his thought from conservatism. Moreover, what he does among conservatives is try to orient them to the Constitution which suggests that what he defends is not primarily conservatism but the Constitution.
In Freedom (1957) he had explicitly dissociated himself from both “libertarian ideas” and “the so-called conservative movement” which embodied those ideas. “The [then] contemporary political theory of conservatism may be characterized by the fact that it concludes its inquiry at the point where, historically, political philosophy began.”6 But even in 1957, conservatism had non-libertarian Burkean ideas. Berns also rejected this conservatism.
What the traditionalists have done, and what Burke did before them, is to confuse the separate (but related) realms of theory and practice. . . it is . . . an error for the traditionalists to suggest that theory follow practice, or that our history provides all the political guidance our practice needs. In the place of the criteria for the judgment of political right and wrong provided by political philosophy these writers have substituted the criteria provided by ancestors, or in the case of the sophisticated, provided by History.
That the conservatism of 1957 “accepts and defends the institutions and values of the contemporary West” (quoting Clinton Rossiter) “can only be the result of chance. . . the conservative by definition, wants to preserve traditional principles, i.e. our principles” because they are ours not because they are good or true.7 This may be what he meant by conservatism stopping where political philosophy begins.8 At any rate, again in 1997 he publicly broke with the conservatives at First Things.9
Presumably, a conservatism which defended traditional principles only insofar as they could be defended as good or true on the basis of political philosophy would be the only conservatism with which Berns’ moderation would be fully at home today. Perhaps the neoconservatism of the American Enterprise Institute with which he is associated is such. But he has never retracted his emphatic 1957 rejection of “the conservative movement.” Nor, in principle, does there seem to be any reason why he could not be in the liberal camp today if there were a liberalism free of the “ideologist error. . . that practice conform to theory,” i.e., which was open to moderation as Berns following Strauss understands it.10 Perhaps at least some sectors of today’s conservatism, defective as conservatism as such may be, are open to that moderation in a way today’s liberalism is not.
Strauss himself studied the history of political philosophy, not the Constitution, and most Constitutional scholars pay little attention to the history of political philosophy. However, Strauss gave reasons, explicitly learned from the history of political philosophy, why loyalty to a decent constitution is important. Those reasons presumably illuminate Berns’ constitutional understanding.
Strauss understood moderation in relation to “the twin dangers of visionary expectations from politics and unmanly contempt for politics.”11 If Berns’ moderation is Straussian moderation, it tries to take its fundamental bearings from (as distinguished from making its tactical alliances with) alternatives which are permanent because they belong to the human situation as such, or at least to the regime, not from current (i.e.,“running and heedless”) political extremes or alternatives (i.e., passing fashions or fads). To take one’s bearings from changing political configurations which history somehow throws up from time to time (such as contemporary liberalism and conservatism) would be a species of what Strauss called “historicism,” the form in which philosophic nihilism which breeds political extremism, presents itself in our time. To speak to contemporary matters, in light of permanent (natural) or more permanent (regime) understandings, is perhaps necessary and even socially responsible. To take one’s fundamental bearings from contemporary matters is not. Strauss regarded such historicism as the greatest alternative, and threat, to political philosophy at least in our time and perhaps in principle.12
Berns’ constitutional scholarship typically aims to moderate the visionary liberalism which has dominated the Supreme Court, and hence constitutional law, during most of his lifetime. For example, the essays collected in Defense (1984) defend the Constitution against that liberalism’s desire to circumvent or abuse it in order to achieve its ideas of the good, and to which the Constitution is opposed: world government, pacifism, pornography and obscenity, sexual and racial equality of conditions not merely equality of natural and constitutional rights, direct popular election of the President because of contempt for the moderating effects of constitutional federalism, and legal recognition of the priority of religiously grounded claims over positive law.13 In the academic world whose horizons extend from liberal to left, these positions appear conservative. However, his break with First Things (below pp. 199-200) shows that he attempts to moderate conservatives as well.
Strauss taught that moderation “requires unhesitating loyalty to a decent constitution and even to the cause of onstitutionalism.”14 Such loyalty fairly characterizes Berns’ scholarship but needs to be carefully understood for he unflinchingly acknowledges the Constitution’s complicity regarding slavery.15 His loyalty is manifested respecting this matter, which most casts doubt on the Constitution’s decency, partly by arguing that this complicity was unavoidable and partly by stressing that the Constitution opened previously closed doors to slavery’s disapprobation and eventual extinction. Thus, he shows that almost no one at the Constitutional Convention defended slavery as good or just; that the odiousness of the word “slavery” prevented its use in the Constitution so that not one word of the Constitution needed to be changed when it became practicable to do away with slavery; that the Constitution (in contrast to the Articles) provided Congress power to ultimately extinguish slavery; and that the post-Convention rise and triumph of the Southern reading of the Constitution, especially the commerce clause and the “migration or importation” clause of Article I, Section 9, constituted a rejection of “the originally intended meaning.”16 Thus the original Constitution, while compromising with indecency as a lesser evil than having no union, achieved such decency as was possible in the circumstances and laid the groundwork for thitherto impossible political progress on this matter. It was not the original Constitution but rather “men of the stature of Jefferson and Madison . . . [who subsequently] joined in a more or less deliberate campaign to distort the original meaning of the Constitution... on behalf of slavery.” To say nothing of Chief Justice Roger Taney.17 Thus does he defend the Constitution against the charge that it is racist but still acknowledges its fateful compromise with racism.
The Constitution to which Berns is loyal “is—clearly and overwhelmingly—liberal” (i.e., the liberalism of modern political philosophers)18 and its decency is that of the Declaration of Independence.19 Hence its decency is liberal decency understood as limited to securing natural rights and emphatically not concerned with citizen virtue beyond obeying the laws which secure those rights.20 In denying government its traditional right to more fully form citizen virtue “the Framers of the Constitution deprived Americans of much if not all, of a traditional conservative agenda.” Hence,“[t]he only appropriate agenda for today conservatives is to defend the liberal constitution—if necessary, to defend it from the liberals.”21
Berns’ loyalty to the Constitution has led him to defend the liberalism it embodies against today’s liberals who are less interested in following the liberal Constitution than in having the judiciary “give it meaning” in order to use its authority to mandate policies which are either not mandated, or contrary to, it.22 But Berns is distinguished from others who take seriously the Constitution’s original meaning, especially conservatives like Robert Bork, in that he understands it in light of the history of political philosophy. That orientation he took from Strauss though it is not clear that the relation of the Constitution to the history of political philosophy, as Berns understands it, is necessarily Strauss’.23
Berns’ understanding of the Constitution’s liberalism is decisively informed by what he learned from Strauss about what modern political philosophers tried to do to, with and about revealed religion. Strauss’ argues the moderns sought to undermine revealed religion’s credibility by denying the possibility of miracles, by Biblical criticism and by denying that God had revealed himself to man.24 “[T]he modern tradition was originated by Machiavelli and perfected by such men as Hobbes and Adam Smith. It came into being through a conscious break with the strict moral demands made by both the Bible and classical philosophy”25 Berns continues, in the direction pointed by Strauss, that the primary liberal means to effectuate this break is commerce which “was intended by Locke, Smith, and some others, to be—a substitute for religion or, more precisely, a substitute for Hobbes’s substitute for revealed religion” by shifting people’s attention from salvation in the next world to prosperity in this.The Constitution’s fostering of“arts, manufactures and commerce... might have been written by Adam Smith.”26
The Constitution’s liberal substitute of commerce for religion, and its subordination of religion, is a theme Berns returns to again and again in succeeding books.27 It is perhaps the most important consequence of his understanding the Constitution in light of the history of political philosophy. Hobbes’ leviathan was the original modern substitute for “ineffectual” and “old fashioned morality.” Modern liberal commerce is not only a more politically effective moral teaching than the “useless” preaching of old fashioned religious morality; but preaching religion is dangerous to political peace and freedom “[f]or every Good Samaritan produced by preaching there was a score of religious zealots... eager to do unto others what they understood God wanted done unto them, but disagreeing as to what God wanted done.”28 Modernity and thus the Constitution establish liberal separation of church and state.29
Berns goes beyond anything Strauss says (or as far as I can see means) in saying that the Constitution embodies modernity’s anti-religious intention. Berns’ vigorous explication of modern philosophers’ separation of church and state and commercial way of life, seems to defend and commend both. Both presuppose Hobbes’ doctrine of the state of nature. Strauss however says “Hobbes’ doctrine of the state of nature ... should be abandoned [because it] construct[s] human society by starting from the untrue assumption that man as man is thinkable as a being that lacks awareness of sacred restraints....”30 It seems that either Berns disagrees with Strauss, or the Constitution embodies an erroneous fundamental idea.
However, that may be, Berns grants that liberal modernity needs the self-restraint which religion can help provide. Evidently commerce is not enough. But liberal governments may not do much directly to foster such restraint.31 Still, Berns stands against the mainstream32 of constitutional scholars in finding that the Constitution permits state funding of religious institutions, especially schools, on a non-preferential basis.33 Fundamentally, however, liberal governments teach at least “religious toleration” which “probably does depend on a way of life from which weakened belief follows as a consequence.” That way of life is not “open and official declaration of unbelief” but rather commerce. Thus does the American Constitution follow Hamilton who follows Locke and Smith.34
This discussion makes clear another important difference between Berns’ constitutional understanding and those originalisms less informed by the history of political philosophy. Berns grants that “the majority of the people who had anything to do with” the presence in the Constitution of the prohibition of religious tests and the first amendment religion clauses, these clauses meant only separation of church and the national state, not of church and state as such.“[T]he people and the politicians at the state level were not then disposed to join in some Lockean statement of unbelief, however disguised.” But the commercial way of life “leads men, perhaps imperceptibly, away from those [religious] issues characteristic of life in a preconstitutional age.” More than that, a political consequence of belief in Jesus’ authority is “the impossibility of constitutional government as we know it.”35 Thus the original constitutional tension between liberalism and revealed religion would, and apparently should, gradually be resolved, via a commercial way of life, in favor of liberalism.
Berns does not quite say this is inevitable but his writing leans in that direction and seems to imply that it should be chosen. At least, I do not find him arguing that the original tension should be maintained. He argues for subordination not tension.36 And, unlike Tocqueville whom he sometimes cites favorably concerning religion, Berns does not acknowledge the “duty of lawgivers ... to raise up the souls of their fellow citizens and turn their attention toward heaven.” However, he does cite Tocqueville that religion is “the most precious heritage of aristocratic times”37 which leads him to criticize the Courts’ extending the establishment clause from neutrality among religions to neutrality between religion and irreligion.38 He makes a strong argument that the Constitution as originally meant permits liberal governments to foster religion in a non-discriminatory way and prefer religion over irreligion.39 But he says the Constitution follows modern political philosophers who found religion mostly a political problem partly because “religious passions are the most difficult to harness.”Tame religion, which accepts its subordinate status, is compatible with constitutional government. Serious religion is not.40
The difference, as it emerges here, between Berns’ constitutional understanding and that of the originalists like Bork or Rehnquist is something like this. What “the majority” of the founders understood particular clauses to aim at is less these clauses’ constitutional meaning than what the most philosophically insightful founders (primarily Jefferson and Madison) understood the Constitution as a whole to aim at. If there is a tension between these, one should not deny the majority’s understanding but neither should one reasonably expect it to indefinitely prevail against the general constitutional tendency. The Constitution is more fundamentally what its general tendency is that what its authors meant by specific provisions.
Perhaps nothing is more unusual (almost unique) among contemporary constitutional scholars, than Berns’ intransigent defense of law-abidingness. He appears to regard the danger of lawlessness as the most fundamental threat to our Constitution and to the political and social democracy to which it gives form. “The Constitution is above all a formal document.”41 But there is a dangerous tension between the liberal form and the democratic substance. Democratic people “do not readily understand the importance of forms.” Yet democracies need forms more than other regimes because forms are “a barrier between the strong and the weak, the government and the governed.”42 The Constitution both gives form to the government and protects the governed from the government. “Constitutionalism ... is government limited mainly by its forms.”43 And the form which citizens and government encounter on a daily basis is not separation of powers, judicial review, or executive veto but law itself. Hence, the absolute importance of law-abidingness which is the common ground for his constitutional objection to serious religion, to judicially created rights, and to the dominant jurisprudence in the most prestigious law schools. These teachings all justify or encourage lawlessness and thus tend to bring back the state of nature.44
His constitutional objection to serious religion is that it leads men to disobey positive law by legitimizing “appeal from the sovereign or the law to a body of religious doctrine or to ‘conscience.’” But this appeal unjustly “claim[s] a moral superiority, in flat defiance of the proposition that all men are created equal.” It claims “that... private judgment is superior to the public judgment,... [which is] the private judgment of a majority that, in a democracy, are transformed into law.”45 “[A]ccording to liberalism, one renders unto Caesar whatever Caesar demands and to God whatever Caesar permits.”46 But serious religion, by placing duties to God or conscience above law (exemplified for Berns by the Amish, the Catholic “peace Bishops,” and conscientious objectors) creates the continuing danger of bringing back the state of nature.47
This objection that serious religion leads to lawlessness sufficiently explains his criticism of, and public break with, the First Things symposium in which mostly religious conservatives questioned whether it was time to begin withdrawing allegiance from the “American regime.”48 The grounds for this questioning was that “the judicial usurpation of democracy” had proceeded so far, and in such a direction, that decent people might have to begin to think about giving allegiance to moral law over the constitutionally illegitimate judicial oligarchy that has usurped government by the people.
Berns explicitly agrees that the courts “have indeed usurped power that the Constitution assigns to other agencies of the government, or to the states.”That is, the Court has acted unconstitutionally and thus illegitimately. They have done so by disrespecting the most fundamental constitutional form, namely “constitutionality—which is to say, the distinction between what is politically desired and constitutionally permitted.”49
But he does not go so far as to say this usurpation makes the regime of doubtful legitimacy.50 Perhaps he regards “the regime” as something more fundamental and lasting than the contemporary judicial usurpation which the symposiasts call “the American regime”51 and perhaps the regime in Berns’ sense is endangered by the symposiasts’ undermining of allegiance to what they call the regime. This is suggested by his rejection of the symposium’s “angry and morally indignant discourse” as precisely the sort of “zealous opinions” which the Constitution “excluded or at least inhibited.” By resorting to such indignation, Berns suggests, the symposium gives support to the view that a right to break the law has become preferable to the present judicial usurpation. Berns disagrees. He appears to believe the Constitution correct in presuming the danger of zeal, anger and moral indignation to be greater than the problem of judicial usurpation. Indeed, such usurpation is objectionable partly because it gives rise to the moral indignation of those like the symposiasts.52 But it is better to assuage their constitutionally justified anger by persevering in the struggle to return the Court to its constitutionally legitimate place rather than risk returning our country to the state of nature. And the better way to that better end is to persevere in trying to convince the thoughtful, by reasoned argument, that the judges have acted unconstitutionally, instead of trying to convince the morally indignant to withdraw their allegiance from the political order.53
Berns managed to get along with the mostly seriously religious conservatives at First Things until he was past 70. Strauss once remarked that Socrates’ ability to live peaceably with Athens until he was 70 showed a greater harmony between that regime and philosophy than would be suggested by Socrates’ apparent favoring of Sparta. Something similar might be said of the relation of Berns’ liberal constitutionalism and the religious conservatives.54 In particular, it is not clear that Berns’ objections to the political effects of serious religion involves an hostility to or disbelief in serious religion. Warning “the devout Jew, Christian or Moslem” that they cannot accept certain crucial aspects of liberal constitutionalism could as well emerge from a concern to alert such people to the danger to their souls from such constitutionalism.55
In general, Berns regards the Constitution as wholly modern. It is Hobbesian in commanding an absolute duty to obey the law, Lockean in securing natural rights through separation of powers and liberty of conscience, Hobbesian and Lockean in subordinating religion to the state, and Lockean and Smithian in promoting commerce as a way of life.
Still, he once acknowledges that “more than modern natural right and law went into the founding of the United States.” While the founders’ principles “forbade the use of the laws directly to generate virtuous habits... they understood the need to preserve such habits and they did not regard it as improper for the laws to support the private institutions (for example churches) in which they were generated ...” Similarly, the founders would have agreed with Tocqueville that “the family may have no place in liberal theory, or the theory of modern natural rights [citing Locke],but it was indispensable to the perpetuation of the liberal state.”56 Hence, liberal governments are constitutionally able to support families for the same reason they are permitted to support Churches.
Berns thus appears sympathetic to liberal government’s efforts to preserve both the family and such virtue as already exists in the people. To that end, he wrote an entire book trying to reopen the question of censorship’s constitutionality.57 Moreover, these “non modern natural right elements” are largely58 holdovers from pre-modern morality. And, if regimes as classically understood either founder on such incoherencies or else their dominant tendency overcomes the residual antithetical remnants of the old order, then liberal governments’ efforts to preserve the premodern elements—especially religion and the family—would appear in principle to be either futile or else to undermine the liberal Constitution. But, if so, why wouldn’t someone loyal to that Constitution seek to preserve rather than resolve the tension between its modern and premodern elements?
Since Berns resolves them, his loyalty to the Constitution seems limited by his attachment to the truth about it. That is, he loudly defends the liberal Constitution against especially (but not only) liberals who oppose or are indifferent to parts of it. But he also quietly points to the deficiencies of the political philosophy it embodies, lest these unknowingly insinuate themselves into the souls of the attentive and thoughtful who might otherwise be simply loyal to it. This might be a contemporary way of living “quietly” among one’s fellow citizens while hardly letting them know one philosophizes. Naked defense of the Constitution might be the best disguise for moderately teaching its fundamental and enduring defects.
Originally presented on a panel “Leo Strauss and the Study of the American Regime” at the 1997 meeting of the American Political Science Association.
Berns has published five books on the Constitution and constitutional law. Freedom, Virtue, and the First Amendment (Regnery, 1957), hereafter cited as Freedom; The First Amendment and the Future of American Democracy (Chicago: Gateway 1976, 1985), hereafter cited as Future; In Defense of Liberal Democracy (Chicago: Gateway, 1984), hereafter cited as Defense; and Taking the Constitution Seriously (Lanham, MD: Madison Books, 1987, 1992), hereafter cited as Taking. In addition For Capital Punishment: Crime and the Morality of the Death Penalty (Lanham, MD: University Press of America, 1991) partly takes its bearings from the Constitution. Berns himself would insist that the focus of his work is not constitutional law but the Constitution. His major work on political philosophy proper is the chapter on John Milton in Leo Strauss and Joseph Cropsey eds., History of Political Philosophy.
Future (1985), p. ix.
Walter Berns, “A Reply to Harry Jaffa,” National Review, January 22, 1982, pp. 44, 45. 1959), p. 23. This reticence is so marked that at least once he quotes Strauss without attribution. “Or, in the words of someone else, the fact that it is difficult to decide which of two mountains whose peaks are hidden by clouds is higher than another, is no reason why we cannot decide that a mountain is higher than a molehill.” Freedom (1965), p. 225.The Strauss quote is in “What is Political Philosophy?” in What is Political Philosophy? And Other Studies (Glencoe, IL:The Free Press, 1959), p. 23.
Leo Strauss, “Liberal Education and Responsibility” in Liberalism Ancient and Modern (New York : Basic Books, 1968), p. 24. Leo Strauss, “Restatement on Xenophon’s Hiero” in On Tyranny (Glencoe, IL:The Free Press, 1963), p. 197.
Freedom (1957), p. ix.
Freedom (1957), pp.17-18.
Cf. Taking (1987), pp. 240-41 where he objects to Burke (without identifying him) because many of the substantive institutions he had defended (primogeniture, entail, tides of nobility, a social class structure, and an established church) are prohibited by the Constitution.
See below pp. 199-200.
Virtue, p. 18.
“Liberal Education and Responsibility,” p. 24.
Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), Introduction, pp. 5, 18. Ch. 1. “What Is Political Philosophy” pp. 26-27.
For Capital Punishment (1991) is an extended elaboration of Chapter 9 of Defense.
“Liberal Education and Responsibility,” p. 24.
“Complicity” is my word which I hope captures Berns’view For his understanding of slavery and the Constitution see Defense, Part IV, pp. 199-298; Taking, pp. 40-63, 144-46, 238-39.
Defense (1984), pp. 223, 214.
Ibid., pp. 224-25. “At his worst, however, Jefferson was no match for Chief Justice Taney and his majority colleagues in the Dred Scott case.” Taking, p. 46.
Freedom (1957), p. ix.
While this theme occurs throughout his writings, he describes Taking (1987) in particular as “an explanation of the Constitution by reference to the Declaration of Independence,” p. 11. See especially his review of Garry Wills’, Inventing America, ibid., pp. 242-51.
Ibid., pp. 11-12.
Taking (1992), p. 241.
See the discussion in Taking (1987) on judicial creation of rights, pp. 206-7, on anticipating ratification of the Equal Rights Amendment, pp. 229-31, and on the judicial revision of the Constitution generally and of capital punishment in particular, pp. 232-41.
Cf. Strauss’ reasons why “liberal or constitutional democracy comes closer to what the classics demanded than any alternative that is viable in our age.” Victor Gourevitch and Michael S. Roth eds., Leo Strauss, “Restatement on Xenophon’s Hiero” in On Tyranny (New York: The Free Press, 1991), p. 194.
Spinoza’s Critique of Religion (New York: Schocken, 1965), esp. Ch.1. Thoughts on Machiavelli (Seattle: University of Washington Press, 1958, 1969), Ch. IV. “The Mutual Influence of Theology and Philosophy,” Independent Journal of Philosophy (1979), p. 115ff. (Originally published 1954 in Hebrew). Taking (1992), pp. 157-58 and note 13.
Strauss, “Restatement,” p. 192
Taking (1992), pp. 180, 173, 170. I know of no place where Berns defends the liberal Constitution against the critique common to classical and Christian morality, namely, that a life of commerce fosters vice and that “[f]ighting one vice with another is the most dangerous strategy there is.You know what happens to kingdoms that use alien mercenaries.” C. S. Lewis, The Pilgrim’s Regress (Grand Rapids: Eerdmann’s, 1958), p. 184.
Defense (1984), PartV, esp. Ch. 18, 20, & 21. Future (1985), Ch. 1 & 2. Taking (1987), Ch. 4.
More precisely, separation of church and state derives not from religious toleration but from “an altogether different principle,” namely, a natural right of everyone not to be governed in matters of religion provided they “demean themselves as good citizens” (quoting Washington). Berns argues that asserting such a natural right is “to deny revelation.” Taking, pp. 164-67.
To my knowledge, Berns does not confront other meanings of constitutional separation of church and state than that which subordinates religion to the state. Roger Williams’ “wall of separation between the garden of the church and the wilderness of the world,” whose metaphor Jefferson plays upon in his letter to the Danbury Baptists (thereby seeming to suggest to these constituents that the Constitution embodied Baptist political theology, if one can speak of Baptist political theology), was for the sake of the independence, not subordination, of the church from the state. And John Courtney Murray thought the First Amendment religion clauses “articles of peace,” a merely practical way for different churches and religions to get along peacably without any commitment to subordination. We Hold These Truths:Catholic Refiections on the American Proposition (New York: Sheed & Ward, 1960), pp. 56-63.
Strauss, “Restatement,” p. 192.
Defense (1984), pp. 59-60.
Strauss encouraged students to have the courage to stand against the mainstream of current democracy in defense of democracy. “Democracy has not yet found a defense against the creeping conformism... it fosters.” “What Is Political Philosophy,” p. 38.
Future (1985), pp. 60-79 esp. 71.
Taking, pp. 180, 173ff.
Ibid., pp. 167, 180, 157.
Already in Natural Right and History (1953), p. 75, Strauss argued that from the point of view of both philosophy and theology, unassisted reason and revelation were mutually irrefutable. Hence to prefer reason over revelation was dogmatic, that is, unreasonable. He further maintained that the tension between reason and revelation was the energizing principle of the West. The gist of Berns’ constitutional understanding seems to reject this in favor of a Hobbesian, typically modern resolution of the tension in favor of reason over revelation.
Taking (1987), pp. 222. J. P. Mayer ed., George Lawrence trans., Democracy in America (New York: Harper and Row, 1969), pp. 543, 544.
Future (1985), p. 70.
Future (1985), pp. 55-79.
Although Jefferson provides the link between Locke’s teaching of religious toleration /liberty of conscience and the Constitution (Taking, pp. 158-64), Berns implies that Jefferson and Madison were wrong in not understanding the necessity for the triumph of an industrial and commercial way of life (p. 146). Apparently, their concern for slavery and agriculture moderated their project for undermining serious religious faith. That is, a kind of moderation can be achieved by what Joseph Cropsey once called “the temperate equilibrium of error.” That is, a kind of moderation can issue from incoherence as well as from political philosophy. “Liberalism and Conservatism” in Robert A. Goldwin ed., Left, Right, and Center (Chicago: Rand McNally, 1965), p. 59.
Taking (1987), p. 188.
Ibid., p. 182, quoting Tocqueville approvingly.
Ibid., pp. 184-85.
Taking, pp. 188, 182, 184-85. “Locke emphasizes law and, in effect, the sovereignty of law instead of the sovereignty of a Hobbesian Leviathan, because in his view there is safety in law, and there is (or can be) safety in the process by which law is made.” Ibid., p. 187.
Future (1985), p. 50. This is identical grounds for his objecting to the modern understanding of judicial review in which justices, in the name of the Constitution, make private judgments about what the Constitution should mean. Defense (1984), p. 41.
Ibid., p. 44
Thus the essays denying a constitutional right of exemption from otherwise constitutionally valid laws (conscientious objection, compulsory schools attendance, etc.). See Future, esp. pp. 45-50, and Defense, Ch. 18, 20 & 21. Berns seems not to object to such exemptions “when the law as a matter of grace” grants them. Future, p. 44. But if the people can consent to such exemptions as a matter of grace, why can they not embody that grace in the Constitution? Perhaps this question is answered by the fact that they have not done so. Indeed, in 1789 Madison unsuccessfully proposed such an amendment to the First Congress. Perhaps Berns’ objection, then, is that the Court has transformed these exemptions from matters of grace into constitutional rights.
The symposium was published in First Things, November 1996. Berns announced his disagreement and resignation from the editorial advisory board in the January 1997 issue. For his explanation of his break see Commentary February 1997, pp. 19-21.The Symposium and the serious responses to it are published in Richard John Neuhaus ed., The End of Democracy?: The Judicial Usurpation of Politics (Dallas: Spence Publishing Co., 1997). Neuhaus comments on Berns’ resignation on pp. 192-94.
Taking (1987), p. 12.
I believe Berns would also disagree with the symposiasts that the usurpations of the Court make the regime illegitimate. If anything it is the Court, not the regime, which is illegitimate.
This would be consistent with Strauss’ classical view that the regime is not the law and hence not the written constitution but “the underlying arrangement of human beings” in “regard to control of communal affairs.” Natural Right and History (Chicago: University of Chicago Press, 1953), p. 136. Cf. Berns. “[O]ur rights may have their foundation in nature or in a duly enacted statute, but for their security they depend ultimately on the support not only of public official[s] but of public opinion.”That’s regime. Taking (1987), p. 227.
However, the Constitution’s “republican (or limited) government... depended on confining the business of government to issues that did not give rise to zeal, anger, or moral indignation.” Berns acknowledges that the Court’s failure to do that provoked the symposiasts’ “angry and morally indignant discourse.” Commentary, February 1997, p. 21.
Ibid., pp. 19-21.
See Leo Strauss, “Restatement on Xenophon’s Hiero,” p. 205.
Taking (1992), pp. 162ff.
Defense (1984), pp. 59-60.
But censorship is useful only to preserve, not to instill, restraint. See generally Freedom (1957), esp. pp. 238ff. “The complete absence of all forms of censorship... is theoretically untenable and practically infeasible,” p. 251.
Not entirely. There is a place for a very attenuated Lockean family (Second Treatise, Ch. 6). But the marriage is not permanent, parents’ duties to the children have no self-interested ground (thus on Lockean grounds casting doubt on how well child rearing duties will be performed) and children’s duties to the parents depends on how big the estate is.