Recovering Constitutional Dignity After the Election

By | 2016-11-23T08:28:04+00:00 November 22nd, 2016|
Print Friendly
Netflix's "The Crown" can teach American viewers about dignity and constitutional government.

Netflix’s “The Crown” can teach American viewers about dignity and constitutional government.

Every day since the election has brought with it a new affront to public civility. By and large, those in leadership have tried to rise to the occasion; signaling, yet again, Americans may be able to manage a peaceful transition of power.

Nevertheless, tensions have been pervasive. College administrators have excused some students from classes for being too emotionally distraught to learn. Social media has been full of denouncements of the character of the President-elect, his advisors, and those who voted for him. In several cities anti-Trump protests have resulted in vandalism, arson, and other acts of violence. Significant ideological and power struggles are transpiring in both the victorious party and the defeated party. At the risk of missing its constitutional functions, people across the country are even proclaiming the irrelevance of the Electoral College in a modern democracy.

The aftermath of this election should be of little surprise. The campaign was among the most vitriolic and divisive of recent decades. The debates lacked substantive discussion of policy. The bias of the media also fueled Americans’ anger and resentment. Political pollster Frank Luntz recently observed in an interview with CBS News’ “60 Minutes” that mainstream media’s pursuit of ratings and profitability (and even preferred political outcomes) rather than information and knowledge has resulted in a state of affairs in which Americans have increasingly begun “to collect information to affirm themselves rather than to inform themselves.” Americans seem to be turning on one another in ways that reveal a significant loss of their fundamental dignity and respect for one another upon which our constitutional government is ultimately grounded.

How have we come to this? Can we prevent the cutting of the already thin thread that continues to bind us as one nation?

Illumination sometimes comes from surprising places. The Netflix program “The Crown,” which became available for streaming on November 4, serves as a welcome example. The series dramatizes Queen Elizabeth II’s accession and her early years on the British throne and thoughtfully points the viewer to important considerations about the nature of constitutional governance.

Even Americans, who long ago repudiated monarchical government, can profit from considering the constitutional dynamics explored in episode 7, “Scientia Potentia Est” (“Knowledge is Power”). As the episode opens, viewers watch a pre-adolescent Princess Elizabeth taking notes as her private tutor, Henry Marten, vice-provost at Eton College, teaches her the fundamentals of constitutional law. With reference to Walter Bagehot’s classic The English Constitution (1867), he relates that there are two elements of the constitution, the efficient and the dignified. The efficient has the power to make and execute policy and is answerable to the electorate. “What touches all,” he intones, “should be approved by all.”

By contrast, the dignified, with its center in the Crown, gives origin and legitimacy to the efficient and is answerable only to God. The constitution only works—and the young princess is told to underline this—when the efficient (the government) and the dignified (the Crown) trust one another. “The Crown” explores how the young Queen applies this early lesson in learning to perform her constitutional role and invites us to reflect on our own constitutional order.

Significantly, unlike our British cousins, Americans have no Crown that serves as a reservoir for the dignity of our Constitution. Bagehot’s treatment of constitutional government compared the English and American constitutions. “Royalty,” Bagehot wrote, “is a government in which the attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is divided between many, who are all doing uninteresting actions. Accordingly, so long as the human heart is strong and the human reason weak, Royalty will be strong because it appeals to diffused feeling, and Republics weak because they appeal to understanding.”

Did the American Founders leave us at a little noticed disadvantage when they bequeathed us a republican form of government with its comparatively weak executive? If Bagehot was onto something here, Americans must deliberately and continually reflect together upon the source of authority behind our Constitution, especially when we transfer executive power. As the real and symbolic power of the presidency has expanded in recent decades, our presidential elections have generated increasing emotional heat and have distorted our constitutional design.

Where do we Americans look to find the functions of dignity within our Constitution—the function that helps sustain allegiance to our government even as leadership changes hands? American historian Forrest McDonald pointed out that the office of the president of the United States combines a ceremonial function with a governing function. The ceremonial function is that which moves the human heart to loyalty and so we are tempted to look to the president for the dignity necessary to inspire our trust. Too often, however, we are sorely disappointed when we do so. While some presidents have been more personally dignified than others, the contentiousness of American politics has long dragged presidents into the fray, diminishing the office as a wellspring of constitutional legitimacy.

If we must not look too much to the presidency to unite us, perhaps we might look to the Supreme Court, where the black robes of the Justices inspire a certain sobriety and dignity. The Judiciary, too, fails the test—especially since we increasingly have come to look to the courts for obiter dicta on policy that go far beyond their limited role of deciding the cases before them. When new rights can be found in penumbras and English words such as “tax” and “marriage” can be reconstrued at will, the Supreme Court shows itself accountable not to higher law and deliberative reason, but to the whims and winds of public opinion. And, finally, Congress, as the lawmaking body, serves as the “efficient” department of government, not the “dignified”—since it is by definition the people’s branch and is accountable most directly to the electorate.

Not in the executive? Not in the judiciary? Not in the legislature? Where does this leave us?

If, as some among us begin to fear, the very legitimacy and authority of our government is withering, where do we find the roots of constitutional dignity to feed and water them? The answer is, of course, right before us in the preamble of our written Constitution. “We the People,” it states, are the source of constitutional legitimacy. The role that the Crown plays in the English constitution was largely democratized in the United States, relocated in the consent of the people as reflected by their representatives during the ratification of the Constitution. That Constitution embodies the solemn will of the American people and it is sustained by our ongoing consent, which demands a measure of affection, but moreso requires us to seek information and understanding.

American constitutional arrangements from the beginning differed from those taught to the young Elizabeth. Americans sought to adopt the long-standing British style of  constitutional separation of powers, but with modifications. Americans eliminated the Crown, replacing it with a republican form of government, one that possessed democratic elements to make real government by consent. Along with monarchy, the founders did away with special birthright political privileges, the aristocracy of birth. In its place Americans embraced an idea of a citizenship that encouraged a new kind of aristocracy—one of talent and virtue where people properly educated and habituated in the responsibilities of their office created the bedrock of the American republic. In some ways those responsibilities were daunting, for the constitutional health of the American experiment depended upon a combination of informed suffrage and the steady engagement in civic good works.

The upshot is that American government is only as sound as the constitutional habits of its people. The dignified element of America is in us, its people, and it sits alongside those parts of us that are merely efficient. Alongside their brashness, working, hustling, vying, trying to make a living and getting things done, our forbears possessed a constitutional sobriety, a capacity for disinterested interest, a jealousy for hard-won freedoms, an eternal vigilance for the rule of law, all of which constitutional habits were brought by the majority of Americans under the guidance of conscience, that is, submitted for accountability to God.

The American constitutional settlement, in other words, called upon its people not only to reason together but also to inform their consciences in light of their faiths and to bring prudence to bear in their daily lives. These habits were to have bearing on both their private commercial and social engagements and their public and political engagements. This complex responsibility of American citizens, always messy in practice, was sustained for a long while on a spiritual and moral capital that has long since diminished under the corrosive effects of the false civil religion of progressive politics, by the misbegotten accretion of power and patronage in Washington, and by an increasingly unaccountable regulatory state. Where citizenship is largely reduced to voting and lobbying a centralized administrative state, the civic habits that renew constitutional discourse and unite us as a people and a polity atrophy. While America was in fact something new in History, it turns out that it does not stand outside History; we are not immune from the quite predictable and human corruptions of power, money and bureaucratic hubris. When the minds of the people become servile, we begin both to desire and to fear the emergence of a despot.

By many lights, neither of our presidential contenders appealed during the campaigns as a potentially unifying president; both seemed to cast shadows in the minds of different constituencies of a coming despotism. Only time will tell whether President-elect Trump and his administration can rise to the demands of restoring constitutional governance. In the meantime, it is up to us, the American people, to step back from the precipice and to reconsider the necessary elements of our Constitution and the ways they should work together. Out of what seems a moment of crisis to many, we also have an opportunity to begin the process of restraining the imperial presidency, restoring the rule of law over that of men within our courts, and demanding more effective lawmaking from Congress.

For these good things to happen “We the People”—in our own hearts, minds, streets, shops, neighborhoods, towns, and cities—are going to have to begin again to listen to and learn from one another. If we can do so; if we can stop shouting to be heard and instead listen for what we might learn; if we can lend a hand to those around us in distress; if we can try to figure out local solutions when we see a local problem rather than looking first to Washington; if we can bow our knees and our heads and reconnect to the dignity that has its source in and is accountable to God, in due course we shall begin to renew those habits needed for reconciling with one another and reweaving the constitutional fabric that has made America a beacon of liberty, prosperity, and hope. To vote is not enough; now comes the task of practicing with dignity the difficult art of self-governance.

Lenore T. Ealy & George M. Curtis III
Lenore T. Ealy, Ph.D., is president of The Philanthropic Enterprise. Ealy worked closely with Dick Cornuelle from 2000-2011 as program director for The Project for New Philanthropy Studies and was the founding editor of Conversations on Philanthropy, an annual journal published by The Philanthropic Enterprise. As principal of Thinkitecture, Inc., Ealy has worked to foster the emergence of innovative ideas, practices, and processes supporting nongovernmental solutions to social problems. Ealy is Secretary and Executive Director of The Philadelphia Society and a founding director of The Epidemic of Health. George Curtis is a former professor of history at Hanover College and a former fellow at Liberty Fund.
  • Peter63

    I entirely agree.

    Unfortunately it looks as if Mr Trump has made a poor start on exactly these desiderata.

    His talk of not pursuing Hillary Clinton and her offences strikes the wrong note.

    What is at stake is not being vindictive to the Clintons but re-establishing the Constitution and the Rule of Law. These have been abrogated and trampled on during the Obama years. The Department of Justice, the Internal Revenue Service, the State Dept and the FBI have all been subverted and used as political tools.

    The mushy squishy idea that the country and the Clintons must ‘heal’ ignores the medical rule that if there is a poison in your system – for instance septicaemia – you need to eradicate it, not put a soothing ointment on the surface of the skin and hope it will go away.

    It is also politically stupid.

    Were Mr Trump to do neither more nor less nor other than his duty and replace the current heads of the DOJ and FBI with people who are truly upright and courageous; and were those new CEOs to recommend prosecution of the Clintons (the Foundation scams &c); and were the truth about the Clinton’s crimes to come out in public in full –

    1. The Democrats would take 25 years to recover electorally. They would be thought of as The Hoods’ Party for several electoral cycles because it would have been shown beyond cavil that they promoted a crooked couple to the highest offices in the land for decades while fully being aware of just how criminal their activities were.

    2. The Republicans would in consequence think of Donald Trump as almost a new Founding Father for having RESTORED the republic.

    3. The tail wind behind Mr Trump’s campaign to ‘drain the swamp’ in D.C. would be overwhelming. No-one could resist it.

    4. Gerald Ford never recovered from pardoning Richard Nixon. He was tainted for the rest of his days. Does Donald Trump desire the mantle of the same taint?
    All this failure of which Ms Ealy writes results from the decadence of a godless society; and the remedy for THAT is not politics but renewed spirituality.

  • Forbes

    USA for the SDNY, Preet Bharara is investigating the Clinton Foundation. I wouldn’t get needlessly judgmental about what will transpire when there is a new occupant of the WH. The media consists of people who have gotten Trump wrong from Day 1. It seems the better approach is to wait and see what actually transpires.